JILL PRYOR, Circuit Judge:
DCI buys and resells blood products through plasma collection centers across the United States. Mr. Murphy was paid for multiple blood plasma donations he made at a collection center during the spring of 2010. Before donating, Mr. Murphy filled out medical release and acknowledgement forms, as well as a "New Donor Information Sheet," which asked for information required by federal law and for personal information such as his telephone number. Mr. Murphy alleged that DCI, through public ads and privacy policies, represented that blood donor information submitted for record maintenance would be kept confidential.
More than two years later, DCI sent Mr. Murphy two text messages. The first read:
Am. Compl. ¶ 89, Doc. 59. Mr. Murphy did not reply. Approximately 40 minutes later, Mr. Murphy received a second text message:
Id.
Id. ¶ 90; Am. Compl., Ex. A, Doc. 59-1.
Mr. Murphy alleged that DCI stored donor record information on a commercial database it operated and that it provided the donor information to third party text message marketing/advertising platforms. Mr. Murphy further alleged that DCI used the third parties' automatic dialing equipment to send out mass automated text advertising messages to donors such as himself.
Mr. Murphy claimed, inter alia, that sending the text messages violated the TCPA's prohibition on using an auto dialer device to dial telephone numbers without the prior express consent of the called party. 47 U.S.C. § 227(b)(1)(A). DCI moved to dismiss the lawsuit on the ground that by providing his cell phone number to DCI on the New Donor Information Sheet (as Mr. Murphy alleged in his complaint), he gave prior express consent to be contacted at that number — an
We review the district court's grant of DCI's motion to dismiss for failure to state a claim de novo, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff. Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1169 (11th Cir.2014). A district court may dismiss a complaint for failure to state a claim if an affirmative defense appears on the face of the complaint. Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir.1993).
We begin by reviewing the TCPA's applicable section and the FCC's interpretations of it. The TCPA prohibits the use of an automatic telephone dialing system to "make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) ... to any telephone number assigned to a ... cellular telephone service." 47 U.S.C. § 227(b)(1)(A)(iii).
Pursuant to its rulemaking authority, the FCC defined "prior express consent" in its initial rulemaking following the TCPA's passage. See 1992 FCC Order, 7 FCC Rcd. at 8769. The FCC stated that "persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary." Id. at 8769 ¶ 31. It explained that "telemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached." Id. Referencing the House Report on the
In subsequent explications of TCPA regulations, the FCC has referred with approval to the 1992 FCC Order's interpretation of prior express consent. In 2008, the FCC issued a declaratory judgment that declined to find an exception to the prior express consent doctrine for auto dialed calls to wireless numbers made by debt collectors. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 ("2008 FCC Ruling"), 23 FCC Rcd. 559 (2008). The FCC concluded that providing a cell phone number to a creditor — as part of a credit application, for example — "reasonably evidences prior express consent ... to be contacted at that number regarding the debt." Id. at 564 ¶ 9. Citing the 1992 FCC Order, the FCC repeated its previous interpretation of prior express consent: "persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary." Id. Although the 2008 FCC Ruling dealt specifically with debt collection calls, the FCC "reiterate[d] that the plain language of [§] 227(b)(1)(A)(iii) prohibits the use of autodialers to make any call to a wireless number in the absence of an emergency or the prior express consent of the called party," and that "this prohibition applies regardless of the content of the call." Id. at 565 ¶ 11.
Having set forth the statutory and regulatory background, we examine whether the district court correctly held that it lacked jurisdiction under the Hobbs Act to review, and was therefore bound by, the 1992 FCC Order's interpretation of prior express consent. DCI argues that under the 1992 FCC Order Mr. Murphy gave his express consent to be contacted by DCI when he included his cell phone number on the New Donor Information Sheet before giving blood. In response, Mr. Murphy argues that the 1992 FCC Order does not control. According to Mr. Murphy, the term "prior express consent" must be given its ordinary meaning, under which, he argues, providing a cell phone number on the new donor form constituted only implied consent. We hold that the 1992 FCC Order's interpretation of prior express consent controls; thus, Mr. Murphy gave his prior express consent to be contacted by DCI.
The Communications Act, which the TCPA amended, provides that any "proceeding to enjoin, set aside, annul, or suspend any order of the Commission" must be brought under the Hobbs Act. 47 U.S.C. § 402(a). The Hobbs Act provides the federal courts of appeals with "exclusive jurisdiction to enjoin, set aside, suspend
FCC orders "`adopted by the Commission in the avowed exercise of its rule-making power' that `affect or determine rights generally ... have the force of law and are orders reviewable under the' Hobbs Act." Id., 768 F.3d at 1121 (quoting Columbia Broad. Sys. v. United States, 316 U.S. 407, 417, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942)). In our recent decision in Mais, we reversed the district court's holding — that the 2008 FCC Ruling's interpretation of prior express consent in the context of debt collection was inconsistent with the TCPA's plain language — on the ground that the holding violated the Hobbs Act's prohibition on district court review of FCC orders. Id. at 1119-21. The 2008 FCC Ruling, which reiterated the 1992 FCC Order's interpretation of prior express consent, controlled in Mais. After Ms. Mais provided her husband's cell phone number on a hospital admission form, Mr. Mais received calls from the hospital's debt collection agent. We held that the calls did not violate the TCPA because Ms. Mais's provision of her husband's number was "consistent with the meaning of prior express consent announced by the FCC in its 2008 Ruling," id. at 1126, and the "FCC did not distinguish or exclude medical creditors from its 2008 Ruling." Id. at 1122.
Mr. Murphy asks us to adopt the same interpretation of prior express consent that the district court did in Mais, rather than the interpretation promulgated by the FCC. We decline to do so. Acknowledging that the 2008 FCC Ruling's treatment of prior express consent was in line with prior FCC orders, including the 1992 FCC Order, in Mais we further noted that the 1992 FCC Order's interpretation of prior express consent was consistent with the TCPA's legislative history. We explained that liability under the TCPA only inures for calls made without the called party's "prior express invitation or permission." Id. at 1124. Here, we find no indication that the 1992 FCC Order's definition of prior express consent was limited such that it does not cover Mr. Murphy's situation. The district court rightly refused to consider Mr. Murphy's argument that the 1992 FCC Order's interpretation was inapplicable and contrary to the plain language of the TCPA because the effect would be to "set aside, annul, or suspend" the FCC Order and thus a violation of the Hobbs Act.
Having determined that the district court correctly refused to entertain arguments regarding the validity of the 1992 FCC Order, we turn to whether DCI's actions violated the TCPA under any FCC order. Mr. Murphy's argument that prior express consent must be given its plain
We are unpersuaded by Mr. Murphy's argument that the 1992 FCC Order does not apply to the facts of this case because it concerned only residential landlines. As discussed above, the 1992 FCC Order's interpretation of prior express consent applied to § 227(b)(1)(A) generally. Cellular telephones are expressly included in § 227(b)(1)(A), and the 1992 FCC Order's discussion of prior express consent gave no indication that cellular telephones should be excluded. See 1992 FCC Order, 7 FCC Rcd. at 8768-69 ¶¶ 29-31. And, since 1992, the FCC has reiterated and consistently applied its interpretation of prior express consent in the context of cell phone calls and text messages. See 2012 FCC Order, 27 FCC Rcd. at 1832 ¶ 4 (section 227(b)(1)(A), which "prohibits certain categories of autodialed calls, absent an emergency or the `prior express consent' of the consumer[,] ... encompasses both voice and text calls, including short message service (SMS) calls."); 2008 FCC Ruling, 23 FCC Rcd. at 564 ¶ 9 ("provi[ding] [] a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt."). We therefore hold that the 1992 FCC Order's interpretation of prior express consent applies to Mr. Murphy's claims.
By voluntarily providing his cell phone number to DCI, Mr. Murphy gave his prior express consent to be contacted. Because Mr. Murphy's complaint alleges, on its face, facts that demonstrate prior express consent, we affirm the district court's dismissal of Mr. Murphy's claims.