instructions to the contrary.”
In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991
, 7 F.C.C.R. 8752 (1992) (“1992 FCC Order”).
But, the TCPA states, “[i]t is unlawful for any person to “make any call (other than a callmade . . . with the prior express consent of the called party) using any automatic telephonedialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . .cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). The purpose of the TCPA was to strikea balance between protecting the privacy of individuals while still permitting legitimatetelemarketing practices. Tel. Consumer Prot. Act of 1991, Pub. L. No. 102-243, § 2, 105 Stat.2394 (1991). In enacting the TCPA, Congress considered evidence that individuals “considerautomated or prerecorded telephone calls, regardless of the content or the initiator of themessage, to be a nuisance and an invasion of privacy.”
Congress found that banningautomated calls “except when the receiving party consents to receiving the call . . . is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.”
The TCPA gives the FCC the authority to establish regulations to implement therequirements of the Act. 47 U.S.C. § 227(b)(2).“When determining whether to defer to an agency’s interpretation of a statute itimplements, the court follows the established
Koch Foods, Inc. v. Sec’y,U.S. Dept. of Labor
, 712 F.3d 476, 480 (11th Cir. 2013). The first step is to ask whether Congresshas directly spoken on the matter at issue.
See Jian Le Lin v. U.S. Atty. Gen.
, 681 F.3d 1236,1239 (11th Cir. 2012). “If the intent of Congress is clear, that is the end of the matter; for thecourt, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”
, 467 U.S. at 842-43. “The court reaches
step two only if thestatute ‘is silent or ambiguous with respect to the specific issue’ being interpreted by theagency.”
, 2013 WL 869645, at *3 (quoting
Nat’l Ass’n of State Util. Consumer Advocates v. F.C.C.
, 457 F.3d 1238, 1253 (11th Cir. 2006)). “Where the court finds that thestatute is clear, as it does here, no deference is accorded to the agency’s interpretation.”
, 712 F.3d at 480.Congress has clearly stated that it is unlawful to call a cell phone using an automatictelephone dialing system without the “prior express consent of the called party.” 47 U.S.C. §227(b)(1)(A)(iii). Because the TCPA does not define the term “prior express consent,” the Court
28 U.S.C. § 2342 does not deprive this Court of jurisdiction to consider the FCC’s order because Lusskin’s lawsuit does not seek to enjoin, set aside, annul, or suspend an FCC order; itis simply an action for damages under the TCPA.
See Mais v. Gulf Coast Collection Bureau, Inc.
, No. 11-61936, 2013 WL 1899616, at *5-8 (S.D. Fla. May 8, 2013) (Scola, J.).
Case 0:12-cv-62173-RNS Document 24 Entered on FLSD Docket 06/19/2013 Page 3 of 5