A big issue in the TCPA is whether consent, and the proper type of consent, was given that would allow a company to auto dial a consumer’s cell phone without being subject to damages of $500-1500 per call.
Helping us as lawyers fill in the picture is a recent decision from the Eleventh Circuit on September 29, 2014, in Mais v. Gulf Coas Collection Bureau.
As usual, we will include the relevant parts from the decision with our analysis below it.
Plaintiff Mark Mais filed a claim in federal district court against a hospital-based radiology provider and its debt collection agent for making autodialed or prerecorded calls in violation of the Telephone Consumer Protection Act of 1991 (TCPA), Pub. L. No. 102-243, 105 Stat. 2394 (codified at 47 U.S.C. § 227). Defendant Gulf Coast Collection Bureau, Inc. (“Gulf Coast”) argued that the calls fell within a statutory exception for “prior express consent,” as interpreted in a 2008 declaratory ruling from the Federal Communications Commission (the “FCC” or “Commission”). See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2008 FCC Ruling), 23 FCC Rcd. 559, 564. The district court granted Mais partial summary judgment against Gulf Coast for alternative reasons: the FCC’s interpretation was inconsistent with the language of the TCPA and, regardless, the 2008 FCC Ruling did not apply on the facts of this case.
Nothing particularly noteworthy except the district court judge threw out the FCC interpretation and ruling. This was surprising when the decision came out.
I think the Eleventh Circuit was surprised also….
As we see it, the district court lacked the power to consider in any way the validity of the 2008 FCC Ruling and also erred in concluding that the FCC’s interpretation did not control the disposition of the case. In the Hobbs Act, 28 U.S.C. § 2342, Congress unambiguously deprived the federal district courts of jurisdiction to invalidate FCC orders by giving exclusive power of review to the courts of appeals. See Self v. Bellsouth Mobility, Inc., 700 F.3d 453, 461 (11th Cir. 2012). And Mais’s claim falls squarely within the scope of the FCC order, which covers medical debts. The 2008 FCC Ruling “conclude[d] that the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent to be contacted at that number regarding the debt.” 23 FCC Rcd. at 564. There is no dispute that Mais’s wife listed his cell phone number on a hospital admissions form and agreed to the hospital’s privacy practices, which allowed the hospital to release his health information for billing to the creditor. As a result, the TCPA exception for prior express consent – as interpreted in the 2008 FCC Ruling – entitles Gulf Coast to judgment as a matter of law. Accordingly, we reverse the district court’s grant of partial summary judgment to Mais and remand with instructions to enter final summary judgment for Gulf Coast.
This is a nice summary of what the court held — some of the details of this lengthy opinion will come below.
Before the district court considered the question of class certification, the Defendants moved for summary judgment on the affirmative defense that the calls could not and did not violate the TCPA because Mais provided “prior express consent” to receive them when his wife completed in writing the Hospital admissions forms. See 47 U.S.C. § 227(b)(1)(A)(iii). The Defendants relied on a 2008 FCC Ruling, which concluded 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.” 23 FCC Rcd. at 564. Defendants further argued that, because the Hospital had consent to use and disclose Mais’s cell phone number under the Health Insurance Portability and Accountability Act (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996), the TCPA prior express consent exception was satisfied. Florida United and Sheridan also separately argued that they could not be held vicariously liable for Gulf Coast’s calls because § 227(b)(1)(A) of the TCPA only reaches those who “make any call” to a cell phone using automatic dialing or a recorded voice. Mais likewise moved for partial summary judgment, arguing that he had not given prior express consent for the calls because the 2008 FCC Ruling did not apply to medical debt and because his cell phone number had been given to the Hospital, not the creditor, Florida United.
All I can say it is creative to argue medical debt is not subject to the 2008 FCC Ruling.
The district court found that Mais, not the Defendants, was entitled to summary judgment on the prior express consent defense mounted by Gulf Coast, Florida United, and Sheridan. The court began by explaining that satisfaction of HIPAA did not automatically ensure compliance with the TCPA, “a separate statute that imposes separate requirements.” Mais, 944 F. Supp. 2d at 1234. The district court also determined that Defendants could not prevail on the basis of the 2008 FCC Ruling. While acknowledging that the Hobbs Act gave the federal courts of appeals exclusive jurisdiction to review final FCC orders, the district court determined that it had jurisdiction to examine the FCC’s interpretation of the TCPA because the central purpose of Mais’s suit was to obtain damages for violations of the statute, not to collaterally attack or invalidate the 2008 FCC Ruling. The court concluded that the Federal Communication Commission’s interpretation of “prior express consent” embodied in its 2008 rule was not entitled to any deference because it conflicted with the clear meaning of the TCPA. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) (“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.”). According to the district court, implying consent from the provision of a cell phone number to a creditor impermissibly expanded the statutory exception to cover “prior express or implied consent.” Mais, 944 F. Supp. 2d at 1239. Compare Black’s Law Dictionary 346 (9th ed. 2004) (defining “express consent” as “[c]onsent that is clearly and unmistakably stated”), with id. (defining “implied consent” as “[c]onsent inferred from one’s conduct rather than from one’s direct expression”). Cut loose from any FCC rulemaking concerning the meaning of prior express consent, and thus interpreting the language found in the Act afresh, the district court concluded that listing Mais’s cell phone number on the Hospital admissions documents alone did not evince prior express consent to receive autodialed or prerecorded calls. In the alternative, the district court also ruled that, even if the FCC’s interpretation of the meaning of prior express consent found in the 2008 FCC Ruling was valid and binding, the rule would not apply under the facts of this case because it was designed to cover consumer and commercial contexts and did not reach medical settings. Moreover, the district court determined, the FCC’s 2008 rulemaking would not apply here because Mais’s wife gave his number only to the Hospital and not to the creditor, Florida United.
On the issue of the FCC, we won’t include anymore on this. The Court found the FCC rules matter. We’ll now turn to the consent issue as this is a more common issue in these cases. But first a bit of history on the regulations from the FCC.
In 2008, in response to a Petition for Expedited Clarification and Declaratory Ruling filed by ACA International, a trade organization of credit and collection companies, the FCC after notice and comment issued a Declaratory Ruling “clarify[ing] that autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the `prior express consent’ of the called party.” 2008 FCC Ruling, 23 FCC Rcd. at 559. Specifically, the FCC “conclude[d] 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.” Id. at 564. The FCC “emphasize[d] that prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.” Id. at 564-65. The Commission concluded that “the burden will be on the creditor to show it obtained the necessary prior express consent” because “creditors are in the best position to have records kept in the usual course of business showing such consent.” Id. at 565. As in the 1992 FCC Order, the Commission found support for its interpretation of prior express consent from the legislative history of the TCPA, including the House Report, which stated that “[t]he restriction on calls to emergency lines, pagers, and the like does not apply when the called party has provided the telephone number of such a line to the caller for use in normal business communications.” Id. at 564 (quoting H.R. Rep. No. 102-317, at 17).
In 2012, the FCC issued still another Report and Order that further interpreted the meaning of the prior express consent exception embodied in § 227(b)(1)(A) of the statute, though the Commission did not change the standard for debt collection calls made to cell phone numbers. See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2012 FCC Order), 27 FCC Rcd. 1830. The 2012 FCC Order required written prior express consent for autodialed or prerecorded calls to wireless or residential numbers that deliver a telemarketing message. Id. at 1838. It “eliminate[d] the established business relationship exemption for prerecorded telemarketing calls to residential lines” created by the FCC in 1992. Id. at 1845. And the Commission added an exemption for “all prerecorded health care-related calls to residential lines that are subject to HIPAA.” Id. at 1852.
The FCC is concerned about consent. In essence, consent is an affirmative defense that the defendant bears the burden of proving after the plaintiff shows auto dialed/computer calls were made to plaintiff’s cell phone.
While the 2008 FCC Ruling listed the completion of “a credit application” as an example of the provision of a cell phone number to a creditor, the Commission did so illustratively, not exclusively. 23 FCC Rcd. at 564. Similarly, the fact that the FCC’s interpretation often is invoked in the context of consumer or commercial creditors does not lessen its application to medical debt collection. See Mitchem v. Ill. Collection Serv., Inc., No. 09 C 7274, 2012 WL 170968, at *1-2 (N.D. Ill. Jan. 20, 2012) (unpublished); Moise v. Credit Control Servs., Inc., 950 F. Supp. 2d 1251, 1253 (S.D. Fla. 2011) (“Based on the plain language of the TCPA and the  FCC order, it is clear that if Plaintiff gave his cell phone number directly to [a medical laboratory], that would constitute express consent.”); Pollock v. Bay Area Credit Serv., LLC, No. 08-61101-CIV, 2009 WL 2475167, at *1 (S.D. Fla. Aug. 13, 2009) (unpublished) (applying the 2008 FCC Ruling to calls made by a defendant “attempting to collect a debt . . . that arose from personal medical care”).
When it comes to expectations for receiving calls, we see no evidence that the FCC drew a meaningful distinction between retail purchasers who complete credit applications and medical patients who fill out admissions forms like the Hospital’s. A patient filling out a form from a healthcare provider may very well expect to be contacted about his health and treatment. But if the form explicitly states that the provided information will be used for payment and billing, the patient has the same reason to expect collection calls as a retail consumer. Though Mais might prefer a different rule, the FCC in no way indicated that its 2008 order distinguishes medical debtors. Florida United, which sought payment for medical services performed for Mais, qualifies as creditor under the 2008 FCC Ruling.
The lesson here is the type of debt does not matter under the 2008 FCC Ruling — credit card, auto, medical, etc. The Ruling, just like in most case law contexts, gives us concepts that are then adapted to a specific situation. The plaintiff made another argument that the court dealt with as follows:
Mais also suggests that the 2008 FCC Ruling does not affect his claim because he did not “provide” his number to “the creditor” – neither he nor his wife personally transferred his cell phone number to Florida United or its collection agent, Gulf Coast. After all, his wife submitted the admissions forms and the cell phone number to a representative of the Hospital, an entity separate from Florida United and Gulf Coast, and the 2008 FCC Ruling “emphasize[d] that prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.” 23 FCC Rcd. at 564-65 (emphasis added). Boiled down, Mois’s argument turns on whether, under the FCC’s interpretation of prior express consent, a called party “provides” his cell phone number to a creditor when (during the transaction creating the debt) he authorizes an intermediary to disclose his number to the creditor for debt collection.
This is interesting and it is not something that is explained in the 2008 Ruling. Notice how the court handles this:
The 2008 FCC Ruling does not offer an explicit answer to this question because it does not spell out in detail the meaning of “provide.” Based on the regulatory and statutory context, however, we reject Mais’s argument that the 2008 FCC Ruling only applies when a cell phone number is given directly to the creditor. Mais’s narrow reading of the 2008 FCC Ruling would find prior express consent when a debtor personally delivered a form with his cell phone number to a creditor in connection with a debt, but not when the debtor filled out a nearly identical form that authorized another party to give the number to the creditor. Mais offers no functional distinction between these two scenarios, and we see no sign that the FCC thought a cell phone number could be “provided to the creditor” only through direct delivery. To the contrary, the 2008 FCC Ruling indicated that prior express consent existed when a cell phone subscriber “made the number available to the creditor regarding the debt.” 23 FCC Rcd. at 567. Plainly, Mais’s wife made his number available to Florida United by granting the Hospital permission to disclose it in connection with billing and payment.
In addition, the FCC recently ruled “that the TCPA does not prohibit a caller from obtaining consent through an intermediary.” In re GroupMe, Inc./Skype Commc’ns S.A.R.L. Petition, 29 FCC Rcd. 3442, 3447 (2014). A provider of text messaging services asked the Commission to “clarify that for non-telemarketing voice calls or text messages to wireless numbers . . . the caller can rely on a representation from an intermediary that they have obtained the requisite consent from the consumer.” Id. at 3444. The FCC after notice and comment issued a Declaratory Ruling that found “the TCPA is ambiguous as to how a consumer’s consent to receive an autodialed or prerecorded non-emergency call should be obtained.” Id. Exercising its interpretive discretion, the FCC explained that “allowing consent to be obtained and conveyed via intermediaries in this context facilitates these normal, expected, and desired business communications in a manner that preserves the intended protections of the TCPA.” Id. at 3445. Of particular note here, the FCC said that, though the 2008 FCC Ruling “did not formally address the legal question of whether consent can be obtained and conveyed via an intermediary,” the earlier order “did make clear that consent to be called at a number in conjunction with a transaction extends to a wide range of calls `regarding’ that transaction, even in at least some cases where the calls were made by a third party.” Id. at 3446. The FCC’s recognition of “consent obtained and conveyed by an intermediary,” id., strongly supports our conclusion that Mais’s wife “provided” the cell phone number to the creditor through the Hospital.
Other FCC explications of the prior express consent exception also show that the appropriate analysis turns on whether the called party granted permission or authorization, not on whether the creditor received the number directly. See 2012 FCC Order, 27 FCC Rcd. at 1839 (“[R]equiring prior written consent will better protect consumer privacy because such consent requires conspicuous action by the consumer – providing permission in writing – to authorize autodialed or prerecorded telemarketing calls . . . .”); 1992 FCC Order, 7 FCC Rcd. at 8769 (“[P]ersons 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.”). This conclusion is consistent with the legislative history: the House and Senate Reports explain that the TCPA imposes liability for calls made without the called party’s “prior express invitation or permission.” H.R. Rep. No. 102-317, at 2, 3, 13; S. Rep. No. 102-177, at 16 (1991). Thus, under the 2008 FCC Ruling a cell phone subscriber like Mais could provide his number to a creditor like Florida United – and grant prior express consent to receive autodialed or prerecorded calls – by affirmatively giving an intermediary like the Hospital permission to transfer the number to Florida United for use in billing.
This is a common sense approach. Sometimes we see companies try to make “consent” so broad that it loses all meaning. “Any number you have now or will in the future can be given to any company that we choose and you agree to never revoke consent.”
Things like this are absurd. But in the Mais case the court found the “intermediary” was a reasonable business practice — no evidence it was any company trying to get “too cute” to shield unrelated companies from TCPA liability.
Mais points out that the FCC concluded in its 2008 Ruling that “prior express consent provided to a particular creditor will not entitle that creditor (or third party collector) to call a consumer’s wireless number on behalf of other creditors, including on behalf of affiliated entities.” 23 FCC Rcd. at 565 n.38. Here, however, the Hospital did not call Mais on behalf of Florida United. Nor did the Hospital give Mais’s number to a debt collector to make unauthorized calls on behalf of other creditors. Instead, with explicit permission from Mais’s wife, the Hospital passed his cell phone number to Florida United, the creditor who provided radiology services to Mais during his hospitalization. Because Mais’s wife specifically authorized that transfer of health information for billing purposes, “the wireless number was provided by the consumer to the creditor” in satisfaction of the prior express consent exception. Id. at 564.
Bottom line is consent can be passed to other companies if it is done in a reasonable way that is fully disclosed.
Also, while it is not expressly discussed in detail, the wife gave the husband’s cell phone number when he presumably could not as he was admitted to the ER. No evidence he disapproved of this or revoked consent. This was not a spouse stealing an identity to get a cell phone, credit card, etc. This was one spouse taking another into an emergency room. It is unclear from Mais what the result would be if the wife, for example, for her own treatment listed her husband’s cell phone number.
But at least in this situation, it was proper consent.