In Penn v. NRA Group, LLC, 2014 WL 2986787 (D.Md. 2014), Judge Bredar granted summary judgment to a debt collector on a Plaintiff’s TCPA claim, stating that the customer’s providing his cellular telephone number to his doctor was the same as providing it to the doctor’s collector once the Plaintiff defaulted on the debt.
The undisputed facts show that Penn’s provision of his cell phone number to Harbor Hospital was in relation to the medical services received by Penn in 2008–services for which he left a balance owing. The facts are also clear that Harbor Hospital provided Penn’s cell phone number to NRA as a contact number for him in reference to his unpaid debt. Under the FCC’s interpretations of the TCPA, NRA lawfully called Penn’s cell phone number to collect his debt to the hospital. Penn presents no evidence to support his contention that NRA did not have his prior express consent to call his cell phone number in an effort to collect on the debt referred to NRA by Harbor Hospital. (Pl.’s Opp’n 9–10.) He says he did not provide that number to NRA but only provided it to the doctor from whom he sought treatment. ( Id. at 9.) He ignores the FCC’s opinions to the effect that providing a cell phone number to the creditor is the same as providing it to a third-party collector working on behalf of the creditor. Instead, he relies upon a lone district court decision from the Southern District of Florida to the effect that the FCC’s 2008 Ruling does not apply to the medical care setting and also to the effect that prior express consent to the medical provider is inapplicable as to automated debt collection calls. Mais v. Gulf Coast Collection Bureau, Inc., 944 F.Supp.2d 1226 (S.D.Fla.), certif. interloc. app. granted (2013). The Mais decision has been justifiably criticized because the district court failed to recognize the exclusive statutory authority given by Congress to the courts of appeals to review FCC orders. See Chavez v. Advantage Group, 959 F.Supp.2d 1279, 1282 (D.Colo.2013) (citing 28 U.S.C. § 2342(1), 47 U.S.C. § 402(a)). Thus, instead of deferring to the FCC’s rulings-in this case, the ones defining what constitutes prior express consent under the TCPA, the Mais court created distinctions under the TCPA that are contrary to the FCC’s rulings. This Court agrees with the Chavez court that the district courts have no authority to annul the effect of FCC rulings as the Mais court has purported to do. See also Hudson v. Sharp Healthcare, Civ. No. 13–1807–MMA (NLS), 2014 WL 2892290, at *5 (S.D. Cal. June 25, 2014) (rejecting Mais as outlier decision and treating FCC orders as binding on district courts); Murphy v. DCI Biologicals Orlando, Civ. No 12–1459–Orl–36KRS, 2013 WL 6865772, at *8 (M.D.Fla. Dec. 31, 2013) (agreeing with Chavez and finding 2008 Ruling binding on district courts); Sacco v. Bank of America, N.A., Civ. No. 12–006–RLV–DCK, 2012 WL 6566681, at *9 (W.D.N.C. Dec. 17, 2012) (“Because the courts of appeals have been vested with exclusive jurisdiction to review the validity of FCC rulings, this Court will here accept as valid [the 2008 Ruling], which is a ‘final order’ for the purposes of 28 U.S.C. § 2342 because it was the agency’s final decision interpreting the ‘prior express consent’ provision of the TCPA and determines legal rights and obligations.”); Moise v. Credit Control Servs., Inc., 950 F.Supp.2d 1251, 1254 (S.D.Fla.2011) (FCC’s 2008 Ruling unreviewable by district courts); Frausto v. IC System, Inc., Civ. No. 10–1363, 2011 WL 3704249, at *2 (N.D.Ill. Aug. 22, 2011) (same); Leckler v. Cashcall, Inc., Civ. No. 07–04002–SI, 2008 WL 5000528, at *2–3 (N.D.Cal. Nov. 21, 2008) (same). . . . ¶ . . . In Chavez, the court held that an individual’s providing a cell phone number to a medical provider constitutes prior express consent to receive calls at that number from the medical provider’s debt collector. 959 F.Supp.2d at 1281. That holding is consistent with the FCC’s rulings. Accord Kenny v. Mercantile Adjustment Bureau, Civ. No. 10–1010, 2013 WL 1855782, at *7 (W.D.N.Y. May 1, 2013); Mitchem v. Illinois Collection Serv., Inc., Civ. No. 09–7274, 2012 WL 170968, at *2 (N.D.Ill. Jan. 20, 2012); Pollock v. Bay Area Credit Serv., LLC, Civ. No. 08–61101, 2009 WL 2475167, *9–10 (S.D.Fla. Aug. 13, 2009). Likewise, here, the Court holds that Penn’s provision of his cell phone number to Harbor Hospital in conjunction with his patient registration in 2008 constituted his prior express consent for the hospital or a debt collector acting on behalf of the hospital to call him on his cell phone number for the purpose of collecting the debt arising from that registration. Therefore, NRA’s calls to him on his cell phone number were lawfully made.