Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 1 of 16 PageID 96 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

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1 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 1 of 16 PageID 96 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION JOSEPH B. MURPHY, an individual, on behalf of himself and all others similarly situated, v. Plaintiff, CASE NO. 6:12-cv CEH-KRS DCI BIOLOGICALS ORLANDO, LLC, a Delaware limited liability company, DISPOSITIVE MOTION ORAL ARGUMENT REQUESTED Defendant. MOTION TO DISMISS AND SUPPORTING MEMORANDUM OF LAW Defendant DCI Biologicals Orlando, LLC ( DCI or Defendant ), by and through its undersigned counsel, respectfully submits this motion to dismiss and supporting memorandum of law pursuant to Fed. R. Civ. P. 12(b)(6). The September 26, 2012 complaint ( Complaint ) of plaintiff Joseph B. Murphy ( Plaintiff ) should be dismissed because it fails to state a claim upon which relief can be granted under any cause of action. The Complaint, brought under the Telephone Consumer Protection Act of 1991 ( TCPA ), alleges facts that establish a complete prior express consent defense for DCI. For this reason, Counts I and II fail as a matter of law. Counts III and IV fail because the Complaint does not allege the predicate two telephone solicitations received after 9:00 p.m. by a residential telephone subscriber. Moreover, Plaintiff is not entitled to injunctive relief when he cannot otherwise state a claim under the TCPA. Thus, as explained in detail below, the Complaint should be dismissed with prejudice.

2 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 2 of 16 PageID 97 PRELIMINARY STATEMENT Defendant DCI operates blood plasma centers in Gainesville, Jacksonville and Orlando, Florida and is part of an organization of 32 plasma centers located throughout the United States. DCI is ultimately and wholly owned by the United Kingdom Department of Health, which acquired DCI to meet its national plasma needs following the outbreak of bovine spongiform encephalopathy (commonly known as mad cow disease ) in Great Britain. Plasma-derived therapies made possible by DCI s plasmapheresis provide life-saving treatments for patients in the UK, US and worldwide for a range of diseases including hemophilia, primary immunodeficiencies, and alpha-1 antitrypsin deficiency, as well as other serious medical conditions such as traumatic injuries, burns, and shock. According to the Complaint, Plaintiff donated plasma at a DCI facility on a number of occasions between March 1, 2010 and June 14, (Compl. 17.) In connection with these donations, Plaintiff completed a New Donor Information Sheet on which he provided his cellular telephone number. 1 (Compl. 18.) Following this, Plaintiff claims to have received text messages on his mobile phone. (Compl. 20.) The first message allegedly stated, You will receive MMS messages from DCI Biologicals on short code Reply STOP to 9900 to cancel. (Id.) It is not alleged that Plaintiff replied STOP or did anything else that might indicate he did not wish to receive text messages. Apparently he did not, as he claims to have received a second message from DCI that encouraged him to make plasma donations. (Compl. 21.) Plaintiff brings this putative class action under the TCPA, 47 U.S.C. 227, a statute that predates the advent of text message technology, yet has been interpreted to prohibit the sending 1 This document, referenced in the Complaint, is attached in blank form as Exhibit A. Notably, this form does not specifically request a mobile phone number, nor does it indicate that providing a phone number is a prerequisite to donating plasma. 2

3 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 3 of 16 PageID 98 of such messages to a cellular phone using a device capable of generating random or sequential numbers except with the prior express consent of the recipient. Plaintiff seeks damages of $500 or $1,500 per text message, but does not reveal exactly how many messages he claims to have received. STANDARD OF REVIEW To survive a motion to dismiss, a pleading must include a short and plain statement showing that the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, (2009). It must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)) (internal quotations omitted). A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Id. Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id. Where a complaint pleads facts that are merely consistent with a defendant s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. (internal quotations omitted). A motion to dismiss for failure to state a claim must be granted where, as here, the factual allegations do not support the cause of action. Bentley v. Bank of America, 773 F.Supp.2d 1367, 1370 (S.D.Fla. 2011) (citing Marshall Cty. Bd. Of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)). ARGUMENT As explained below, Counts I and II fail because the Complaint concedes that Plaintiff provided DCI with his cellular telephone number, an act that the Federal Communications Commission ( FCC ) and many courts have deemed to constitute express consent and a 3

4 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 4 of 16 PageID 99 complete defense under the TCPA. Counts III and IV fail for three independent reasons. First, the Complaint does not allege the predicate two messages sent after 9:00 p.m. Second, the alleged messages do not constitute "telephone solicitations," as defined in the TCPA and its regulations. Third, the text messages are not alleged to have been sent to a "residential" telephone subscriber, but rather to a cellular telephone. I. COUNTS I AND II FAIL BECAUSE PLAINTIFF ADMITS HE GAVE HIS CELLULAR TELEPHONE NUMBER TO DCI. A. Express Consent Is A Complete Defense to Counts I and II. The TCPA prohibits the use of a device capable of generating random or sequential numbers to send text messages to cellular telephones without the called party s prior express consent. In particular, the TCPA provides that: It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. 47 U.S.C. 227(b)(1) (emphasis added). While this TCPA provision - enacted in 1991 before the advent of text message technology - speaks only to calls, the term call has been interpreted to include text messages. See, e.g., Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, (9th Cir. 2009); see also Buslepp v. Improv Miami, No , 2012 WL at *2 (S.D.Fla. Oct. 16, 2012). 2 2 Copies of unreported cases cited herein are attached as Exhibit B. 4

5 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 5 of 16 PageID U.S.C. 227(b)(1) requires a plaintiff to satisfy the following elements: that (1) a call was made; (2) using an "automatic telephone dialing system;" to (3) the plaintiff's cellular telephone. 47 U.S.C. 227(b)(1)(A); 47 C.F.R ; see also Pimental v. Google Inc., 2012 WL (N.D.Cal. 2012). However, there is no liability under this statute if, as explained below, the plaintiff gave his prior express consent to receive calls and that such consent was not withdrawn prior to the call. Though an affirmative defense, express consent may be considered at the motion to dismiss stage in a TCPA case when the facts establishing the defense have been affirmatively pleaded in the complaint. See, e.g., Scott v. Merchants Ass n Collection Div., Inc., No , 2012 WL , *2 (S.D.Fla. Oct. 15, 2012) (observing that [w]hether these text messages were sent to Plaintiff with his prior express consent is an affirmative defense and that an affirmative defense may be considered in resolving a motion to dismiss when the complaint affirmatively and clearly shows the conclusive applicability of the defense to bar the action. ); see also Jackson v. BellSouth Telecom., 372 F.3d. 1250, (11th Cir. 2004). Here, the Complaint expressly alleges that Plaintiff provided DCI with his cellular telephone number when filling out a New Donor Information Sheet. 3 (Compl. 18.) As explained below, under FCC regulations in effect at the time the text messages were allegedly sent, Plaintiff s act of providing his cellular telephone number constituted express consent to receive text messages at that number. For this reason, Counts I and II fail. B. Plaintiff Admits He Gave DCI His Express Consent. The TCPA does not define express consent. The legislative history makes it clear that this lack of definition was deliberate and that Congress did not intend to require formal, written 3 For this reason, the instant action is unlike Scott. There, the Complaint did not contain the critical admission that the plaintiff had given the defendant his telephone number. 5

6 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 6 of 16 PageID 101 consent. H.R.Rep at 13 (1991) ( The Committee did not attempt to define precisely the form in which express permission or invitation must be given, but did not see a compelling need for such consent to be in written form. ). Congress delegated to the FCC the authority to prescribe regulations to implement the requirements of the TCPA. 47 U.S.C. 227(b)(2); see also Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, (6th Cir. 2010) ( Congress vested the FCC with considerably authority to implement the TCPA ). The FCC s regulations interpreting the TCPA are located at 47 C.F.R Thus, the meaning of the term express consent is to be found in the FCC s regulations and adjudications. In its initial rulemaking after the passage of the TCPA, the FCC noted that: [A]ny telephone subscriber who releases his or her telephone number has, in effect, given prior express consent to be called by the entity to which the number was released... 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. 4 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, FCC ,7 FCC Rcd. 8752, 8769 (October 16, 1992) (the Initial FCC Rulemaking ); see also Osorio v. State Farm Bank, F.S.B., 859 F.Supp.2d 1326, 1329 (S.D.Fla. 2012) (observing same). In 2008, the FCC repeated this declaration in the context of a petition brought by the Association of Credit and Collection Professionals ( ACA ). In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling, FCC , 23 FCC Rcd. 559, 564 (January 4, 2008) (stating that, in 1992, the 4 The Complaint contains no allegation that Plaintiff gave instructions that he did not wish to be called. Indeed, Plaintiff admits he was invited to reply STOP to prevent future messages, but makes no allegation that he did so. (Complaint 20-21). 6

7 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 7 of 16 PageID 102 Commission determined 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. ) (the FCC Declaratory Ruling ). This FCC Declaratory Ruling then applied the broad rule articulated in the Initial FCC Rulemaking to the specific question presented by the ACA, namely whether creditors had express consent to call cellular telephone numbers of debtors who had provided those numbers to them. FCC Declaratory Ruling at 563. The FCC concluded: [A]utodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the prior express consent of the called party, we clarify that such calls are permissible. We conclude that the provision of 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. FCC Declaratory Ruling at 568. Notably, while the FCC Declaratory Ruling only addressed the specific question presented by the ACA, the FCC did not state any reason why this ruling should apply only to creditors and, more importantly, did not in any way curtail the broader Initial FCC Rulemaking. Instead, the FCC Declaratory Ruling reaffirmed the general rule that providing a telephone number as part of one s contact information constitutes prior express consent to be contacted and clarified that this general rule also applies to cellular telephones. Relying upon the Initial FCC Rulemaking and the FCC Declaratory Ruling, courts have repeatedly found that TCPA plaintiffs gave their express consent simply by supplying their telephones number to defendants. In one recent case practically identical to the instant action, an Alabama woman who was dropping off a prescription at a Wal-Mart pharmacy allegedly gave her cellular telephone number to a clerk who asked for it in case there were any questions that came up. Pinkard v. Wal-Mart Stores, Inc., No. 12-cv-2902, 2012 WL , *2 (N.D. Ala. 7

8 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 8 of 16 PageID 103 Nov. 9, 2012). Hours later, she started receiving promotional text messages from Wal-Mart and complained to another employee, who explained that Wal-Mart automatically enrolls individuals who fill prescriptions at its pharmacies into a program that provides the enrollees with Wal-Mart related text messages on their cellular telephones. 5 Id.; compare (Compl., 18, 23) (claiming that Plaintiff gave DCI his phone number and that, on information and belief, he was involuntarily opted into DCI s alleged text message program). She brought suit against Wal- Mart under the TCPA, making exactly the same allegation that Plaintiff makes here: she gave the defendant her number but not her consent to receive text messages. The Northern District of Alabama dismissed her suit under Fed. R. Civ. P. 12(b)(6) because she pled herself out of court by admitting she gave her cellular telephone number to Wal-Mart, an act that constituted express consent under the FCC s interpretation of the TCPA. Id. at 6. As the Court noted, [Plaintiff s] providing her cellular telephone number to [Wal-Mart] was clear and unmistakable consent to be contacted at that number. To hold otherwise would contradict the overwhelming weight of social practice: that is, distributing one s telephone number is an invitation to be called, especially when the number is given at another s request. Id. at 5. This Court should reach the same result here. Many other courts have found prior express consent in the act of giving a telephone number. An Illinois plaintiff, for example, gave his mobile number to a medical practice at the time he received treatment. Mitchem v. Illinois Collection Service, No. 09-C-7274, 2012 WL , *1(N.D. Ill. Jan. 20, 2012). Thus, he was deemed to have given his express consent to be called using an auto-dialer regarding his medical bill. Id. at 2. A West Virginia plaintiff listing his telephone number in a Craigslist advertisement was deemed to have consented to 5 Indeed, the Northern District of Alabama found that it is Wal-Mart s business practice to send unsolicited text messages to consumers telephones through autodialers and computerized equipment after obtaining their personal information. Id. (internal quotations omitted). 8

9 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 9 of 16 PageID 104 receive an autodialed call offering to purchase the vehicle he was attempting to sell. Mey v. Pep Boys-Manny, Moe & Jack, 717 S.E.2d 235, 242 (W.Va. 2011). Likewise, a Texas plaintiff who gave his cellular telephone number to his cable company was deemed, by virtue of this fact, to have expressly consented to receive autodialed calls. Cunningham v. Credit Management, L.P., No. 3:09-cv-1497, 2010 WL at *5 (N.D.Tex. Aug. 30, 2010). One district court, uncomfortable with the fact that the FCC defined the statutory term express consent to include the consent implied by the giving of a telephone number, sought to invalidate the FCC s broad reading of express consent. Leckler v. CashCall, Inc., 554 F.Supp.2d 1025, (N.D.Cal. 2008), vacated 2008 WL That court later realized, however, that the The Hobbs Act, 28 U.S.C. 2342, gives the federal courts of appeals exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of... all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47. Leckler, 2008 WL , *2. It thus vacated its own prior decision, leaving undisturbed the FCC s authoritative determination that the giving of a cellular telephone number is express consent to be contacted. Id. at 4. If there was any possible doubt about the meaning of express consent as it applies to this action, it was resolved by the FCC s most recent declaration on the issue. This year, the FCC dramatically altered the regulations regarding the TCPA and changed the express consent requirement to an express written consent requirement. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, FCC , 27 FCC Rcd. 1830, 1831 (February 15, 2012) (the New FCC Rulemaking ) ( Specifically, in this Order, we: (1) revise our rules to require prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers. ). The FCC explained that, as the use 9

10 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 10 of 16 PageID 105 of wireless numbers has continued to increase, we believe that increased protection from unwanted telemarketing robocalls is warranted. Id. at Importantly, however, the express written consent requirement imposed by the New FCC Rulemaking has yet to take effect. The FCC explained, We seek to ensure that the consumer protection measures we adopt are timely implemented so that consumers can realize the benefits, while allowing a reasonable time for affected parties to implement necessary changes in a way that makes sense for their business needs. Specifically, we establish a twelve-month period for implementation of the requirement that prior express consent be in writing for telemarketers employing autodialed or prerecorded calls or messages. Id. at The New FCC Rulemaking was not approved by the Office of Management and Budget until October 16, 2012 and therefore its requirement for written consent will not take effect until October 16, See Pinkard, 2012 WL at *4 (observing same). It is clear, therefore, that the express consent required to make an autodialed call to a cellular telephone does not need to be in writing until next year. Id. As explained above, Plaintiff s allegation that he gave DCI his cellular telephone number is fatal to Counts I and II. Until the new requirement for express written consent takes effect next year, the TCPA does not prevent DCI from reaching out a donor to encourage further donations if that individual provided his cellular telephone number and did not opt-out of receiving text messages when invited to do so. For this reason, Counts I and II should be dismissed. II. COUNT III FAILS BECAUSE THE COMPLAINT DOES NOT ALLEGE THE PREDICATE TWO TELEPHONE SOLICITATIONS RECEIVED AFTER 9:00 P.M. BY A RESIDENTIAL TELEPHONE SUBSCRIBER. In order to survive a motion to dismiss for failure to state a claim as to Count III, Plaintiff must allege facts supporting each of the required elements of his cause of action under 47 U.S.C. 10

11 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 11 of 16 PageID (c)(5): (1) receipt of more than one telephone call within a 12-month period; (2) by or on behalf of the same entity; (3) in violation of the regulations prescribed under this subsection. The regulations prescribed under this subsection are the time-of-day restriction and the do-not-call list C.F.R (c)(1) and (c)(2). In Count III, the plaintiff alleged violations of the time-of-day restriction. (Compl. 43) (citing 47 C.F.R (c)(1)). Thus, Plaintiff must allege facts establishing a violation of the following elements of the time-of-day restriction: (1) a telephone solicitation (2) to a "residential telephone subscriber" (3) before the hour of 8 a.m. or after 9 p.m. (local time at the called party s location). 47 C.F.R (c)(1). As explained below, Plaintiff has failed to meet his pleading burden as to Count III for three separate and independent reasons: (A) he does not allege having received two calls after 9:00 p.m., (B) the calls he alleges having received were not telephone solicitations, and (C) the calls he alleges having received were not made to a residential telephone number. A. First, Plaintiff failed to state a claim because he did not allege receipt of more than one telephone call in violation of the time-of-day restriction. Congress created a private right of action for any person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection. 47 U.S.C. 227(c)(5). In Count III, the relevant regulation prohibits telephone solicitations to residential telephone subscribers before the hour of 8:00 a.m. or after 9:00 p.m. (local time at the called party s location). (Compl. 43) (citing 47 C.F.R (c)(1)). Thus, in order to survive a motion to dismiss for failure to state a claim, 6 The plaintiff conflates the time-of-day restriction and the do-not-call list by referring to them in the aggregate as the Do Not Call provisions of the Telephone Consumer Protection Act. However, the disjunctive or is used between 47 C.F.R (c)(1) and (c)(2), indicating that the time-of-day restriction is separate and distinct from the do-not-call list. 11

12 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 12 of 16 PageID 107 the plaintiff must plead sufficient facts to support the receipt of at least two calls either before 8:00 a.m. or after 9:00 p.m. (local time at the called party s location). 7 However, in his Complaint, Plaintiff failed to allege receipt of at least two telephone calls in violation of the time-of-day restriction. Specifically, the first of two text messages that Plaintiff complains of was allegedly received at 8:33 p.m., which does not violate the time-ofday restriction. (Compl. 20, 24, ) Thus, Count III should be dismissed for failure to state a claim because Plaintiff did not allege receipt of more than one telephone call within a 12- month period in violation of the time-of-day restriction. B. Second, Plaintiff failed to state a claim because the alleged text messages were not telephone solicitations as that term is defined by the statute and the regulations. Count III alleges violations of the time-of-day restriction, which precludes the initiation of a telephone solicitation to a residential telephone subscriber between the hours of 8 a.m. and 9:00 p.m.. 47 C.F.R (c)(1). The term telephone solicitation is defined to mean the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, subject to three exceptions that are not applicable here. 47 U.S.C. 227(a)(4); 47 C.F.R (f)(14). While discussing the do-not-call list, the FCC has ruled that calls that are not telephone solicitations, as that term is defined, are not precluded. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, FCC , 18 FCC Rcd , (July 3, 2003) at 37 ( FCC's 2003 Report and Order ) (noting that calls that do not fall within the definition of telephone solicitation as defined in section 227(a)(3) will not be precluded by the national donot-call list. ). That ruling should be equally applicable to the time-of-day restrictions. 7 The plaintiff has incorrectly asserted that a single violation of the time-of-day restrictions is sufficient to sustain a cause of action under 227(c)(5). (Comp. 24(iv)) (The DCI Do Not Call Subclass). 12

13 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 13 of 16 PageID 108 Thus, in order to survive a motion to dismiss for failure to state a claim, Plaintiff must plead sufficient facts to demonstrate that the alleged text messages were telephone solicitations. Here, however, neither of the two alleged text messages was a telephone solicitation. Plaintiff alleges the first text message he received read: You will receive MMS messages from DCI Biologicals on short code Reply STOP to to cancel. (Compl. 20.) This text message was not a telephone solicitation because it did not encourage the purchase or rental of, or investment in, property, goods, or services. 47 U.S.C. 227(a)(4); 47 C.F.R (f)(14). Rather, this text message simply notified Plaintiff that he would be receiving a subsequent text message and it gave him the option to STOP delivery of that subsequent message. (Compl. 20.) Neither was the second text message a telephone solicitation. It encouraged Plaintiff to sell his blood plasma to DCI. (Compl. 20) ( DCI Biologicals: DONATE TODAY! GET PAID TODAY! SAVE A LIFE TODAY! ). It did not encourage the purchase or rental of, or investment in, property, goods or services. 47 U.S.C. 227(a)(4); 47 C.F.R (f)(14). Thus, Count III should be dismissed for failure to state a claim because neither of the text messages the Plaintiff complains of was a telephone solicitation within the meaning of the statute, the regulations, or the FCC s ruling. C. Third, Plaintiff failed to state a claim because he is allegedly a wireless, and not residential, telephone subscriber. The time-of-day restriction prohibits the initiation of a telephone solicitation to any "residential telephone subscriber" before the hour of 8:00 A.M. or after 9:00 P.M. (local time at the called party s location). 47 C.F.R (c)(1). While the term residential telephone subscriber is not defined within the TCPA or its regulations, residential and wireless telephone 13

14 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 14 of 16 PageID 109 subscribers are obviously different from one another. Moreover, Congress distinguished between the two of them in its restrictions on the use of automated telephone equipment. Compare 47 U.S.C. 227(b)(1)(A)(iii) (restricting telephone calls to cellular services) and 47 U.S.C. 227(b)(1)(B) (restricting telephone calls to residential lines). With respect to the regulations prescribed under 47 U.S.C. 227(c)(5), wireless and residential telephone numbers are equivalent only to the extent described in the FCC s 2003 Report and Order. 47 C.F.R (e). This Report and Order equates wireless and residential telephone numbers for the reasons described in paragraphs 33 through 36, which are primarily concerned with the application of wireless telephone numbers to the do-not-call list, as paragraph 36 unambiguously concludes that wireless subscribers may participate in the national do-not-call list. FCC s 2003 Report and Order 167, Footnote 616 (relying on the reasons set forth in 33-36). On the other hand, paragraphs 33 through 36 do not similarly and unambiguously conclude that wireless and residential telephone numbers are equivalent for the purposes of the time-of-day restriction, and there is a simple reason why. The text of the regulation itself bases the time-of-day restriction on the local time at the called party s location. 47 C.F.R (c)(1). In the case of a residential telephone subscriber, this kind of restriction makes sense because it is relatively easy to determine the local time at a called party s location when the called party is tethered to a land-line. On the other hand, given the nature of mobile phones, it would be impossible to determine with any certainty the local time at a called party s location. Thus, Count III should be dismissed because to equate residential and wireless telephone subscribers for the purposes of the time-of-day restriction would go beyond the plain language of 14

15 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 15 of 16 PageID 110 the regulation, would misinterpret the FCC s ruling, and would impose an indeterminable timeof-day restriction on phone calls to mobile subscribers. III. COUNT IV FAILS BECAUSE PLAINTIFF IS NOT ENTITLED TO INJUNCTIVE RELIEF. Count IV seeks injunctive relief under 47 U.S.C. 227(c)(5), the same provision under which Count III seeks legal relief. Count IV fails for the same reasons, explained above, as does Count III. Plaintiff is not entitled to injunctive relief under the TCPA when he cannot otherwise state a claim arising under it. CONCLUSION Plaintiff s complaint should be dismissed because each of its four counts fails to state a claim upon which relief can be granted. The Complaint establishes a complete prior express consent defense to Counts I and II by admitting that Plaintiff provided DCI with his cellular phone number and failing to allege that he at any time withdrew this consent. Counts III fails because Plaintiff does not allege the predicate two telephone solicitations after 9:00 p.m. to a residential telephone subscriber. Count IV fails because Plaintiff is not entitled to injunctive relief where he has otherwise failed stated a claim under the TCPA. WHEREFORE, Defendant DCI Biologicals Orlando, LLC respectfully requests that this honorable Court dismiss Plaintiff s September 26, 2012 Complaint and grant such other relief as is just and appropriate. As amendment would be futile, DCI respectfully requests that the dismissal be with prejudice. 15

16 Case 6:12-cv CEH-KRS Document 20 Filed 11/21/12 Page 16 of 16 PageID 111 Respectfully Submitted, DATED: November 21, 2012 /s/ David G. Hetzel David G. Hetzel (admitted pro hac vice) Robert M. Shaw (admitted pro hac vice) Timothy J. McLaughlin (admitted pro hac vice) HOLLAND & KNIGHT LLP 10 Saint James Avenue Boston, MA Tel: (617) Fax: (617) Suzanne E. Gilbert (Fla. Bar No ) Gennifer B. Powell (Fla. Bar No ) HOLLAND & KNIGHT LLP 200 South Orange Avenue, Suite 2600 Orlando, FL Tel: (407) Fax: (407) Attorneys for defendant DCI Biologicals Orlando, LLC REQUEST FOR ORAL ARGUMENT Pursuant to Local Rule 3.01(j), Defendant DCI respectfully requests oral argument on this motion and estimates that it will require twenty minutes. CERTIFICATE OF SERVICE I hereby certify that on this 21st day of November 2012, I filed the foregoing via the Court s CM/ECF system and I will cause a paper copy to be sent to any unregistered participants listed on the Notice of Electronic Filing. /s/ Robert M. Shaw Robert M. Shaw 16

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