                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 29 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DAVID ROBERTS,                                   No. 13-16304

              Plaintiff - Appellant,             D.C. No. 4:12-cv-00622-PJH

  v.
                                                 MEMORANDUM*
PAYPAL, INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Northern District of California
                 Phyllis J. Hamilton, Chief District Judge, Presiding

                      Argued and Submitted October 20, 2015
                            San Francisco, California

Before: D.W. NELSON, CLIFTON, and N.R. SMITH, Circuit Judges.

       David Roberts appeals the district court’s grant of summary judgment in

favor of PayPal, Inc., on Roberts’ claim under the Telephone Consumer Protection

Act. After adding his cellular telephone number to his PayPal account, Roberts

received a text message from PayPal that he contends violated the TCPA’s



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
restriction on calls using an automatic telephone dialing system or an artificial or

prerecorded voice absent “prior express consent.” See 47 U.S.C. § 227(b)(1)(A).

The district court granted summary judgment in PayPal’s favor on the basis that

Roberts had expressly consented to receive text messages from PayPal by

knowingly providing PayPal his cell phone number. We affirm.

      The Federal Communications Commission, in exercise of its authority to

prescribe regulations to implement the TCPA, see 47 U.S.C. § 227(b)(2),

determined in a 1992 Report and Order 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.” In the

Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,

7 F.C.C. Rcd. 8752, 8769 (Oct. 16, 1992).

      The FCC’s interpretation of “prior express consent” may not be challenged

in the context of this appeal. See Pac. Bell Tel. Co. v. Cal. Pub. Utils. Comm’n,

621 F.3d 836, 843 (9th Cir. 2010). The Hobbs Act vests the courts of appeals with

exclusive jurisdiction to “enjoin, set aside, suspend (in whole or in part), or to

determine the validity of” FCC orders in actions naming the United States as a

party. 28 U.S.C. § 2342; see U.S. W. Commc’ns v. MFS Intelenet, Inc., 193 F.3d

1112, 1120 (9th Cir. 1999). Because this suit was not brought pursuant to the


                                           2
Hobbs Act, the FCC’s 1992 interpretation of “prior express consent” must be

presumed valid. See U.S. W. Commc’ns, Inc. v. Jennings, 304 F.3d 950, 958 n.2

(9th Cir. 2002).

      Under the FCC’s interpretation, Roberts expressly consented to text

messages from PayPal when he provided PayPal his cell phone number. Even if

Roberts believed that PayPal would only contact him on his cell phone about

problems with his online transactions, that limitation did not apply to PayPal’s use

of his number because he failed to communicate it to PayPal.

      Roberts’ contention that the FCC’s 1992 interpretation limits the consent

expressed by release of a phone number to “normal business communications” or

“normal, expected or desired communications,” is without merit. The FCC’s

citation to a House Report mentioning “normal business communications” was not

meant as a limitation on its interpretation of “prior express consent,” but merely as

“support[]” for that interpretation. See In the Matter of Rules & Regulations, 7

F.C.C. Rcd. at 8769 n.57. Moreover, the relevant statutory text does not contain

any language regarding “normal business communications” or “normal, expected

or desired communications.” Even if this court were to accept Roberts’ argument,

it is unclear how the text message at issue could be anything other than a normal

business communication.


                                          3
      Although the FCC has changed its approach to “prior express consent” in

recent years, see, e.g., In the Matter of Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830, 1838 (Feb. 15, 2012), those

changes occurred subsequent to the text message at issue in this case and do not

apply retroactively.

      AFFIRMED.




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