Eleventh Circuit Clarifies Prior Express Consent Under TCPA, Reverses Mais

eleventh_appellate_court_seal[1]With its decision in Crawford v. LVNV Funding, LLC still leaving a bad taste in the collection industry’s mouth, the Eleventh Circuit has provided some solace to the financial services industry with its decision in Mais v. Gulf Coast Collection Bureau, Inc., No. 13-14008 (11th Cir. Sept. 29, 2014).  The key holding was the reversal of the district court’s interpretation of “prior express consent” under the Telephone Consumer Protection Act.

Plaintiff sued the medical service provider and its debt collection agent for making autodialed or prerecorded calls to his cellular telephone in violation of the TCPA.  His wife had given his cellular telephone number to a hospital representative at the time of his admission. The collector argued that this was prior express consent under the TCPA and relied on the 2008 FCC Ruling in support of that argument.  The district court rejected the 2008 FCC Ruling as inconsistent with the TCPA and further held that it did not apply to the facts of this case because the ruling was meant to cover consumer and commercial contexts and not medical settings.

The Eleventh Circuit began by noting that the district court exceeded its jurisdiction by declaring the 2008 FCC Ruling to be inconsistent with the TCPA.  The court held that the federal courts of appeals have “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of such FCC orders.”  As a result, the district court did not have jurisdiction to challenge the 2008 FCC Ruling.  The court also reversed the district court’s holding that the 2008 FCC Ruling did not apply to medical debts noting that the ruling did not distinguish between the types of debts at issue.

As far as “consent” was concerned, the Eleventh Circuit rejected Mais’ argument that he did not provide his number to the “creditor” but rather to hospital representatives at the time of his admission.  The court reasoned that because it was known that the intermediary would ultimately be providing the phone number to the creditor it was no different than if Mais (or his wife) had given the number to the creditor himself as the 2008 FCC Ruling finds prior express consent when the subscriber “made the number available to the creditor regarding the debt.”  The court also cited a recent FCC ruling that held that consent may be obtained through intermediaries.  Ultimately, the Eleventh Circuit held that this interpretation supported the legislative history of the TCPA because “if a person knowingly releases his phone number . . . the called party has in essence requested the contact by providing the caller with their telephone number for use in normal business communications.”

Finally, the Eleventh Circuit rejected Mais’ argument that the “health information” that he authorized the medical provider to share did not include his cell phone number.  The court noted that “health information” included “billing-related information” in addition to other medical information.

This is the second significant decision from the Eleventh Circuit this year addressing TCPA prior express consent.  Osorio v. State Farm, was handed down in March. The Eleventh Circuit’s opinion in Mais is a major victory for the credit and collection industry in the TCPA arena and adds clarity to an otherwise confusing regulatory landscape.

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Tom Dominczyk is based in Maurice Wutscher's New Jersey office and supports the firm's matters in its New York and Pennsylvania offices, practicing in the firm's Commercial Litigation, Consumer Credit Litigation and Bankruptcy groups. Tom has successfully represented financial institutions and law firms throughout the country for claims filed under the Fair Debt Collection Practices Act, Fair Credit Reporting Act and various state consumer protection statutes. In addition to his litigation practice, Tom represents national, regional and local creditors in a variety of bankruptcy matters ranging from the defense of adversary actions to complex non-dischargeability litigation and preference defenses. He served as a Judicial Clerk to the Honorable Graham T. Ross, P.J.F.P., Superior Court of New Jersey, Somerset County.