11th Cir. Reverses Mais Decision on Consent under TCPA; Clarifies Scope of Prior Express Consent under TCPA

In Mais v. Gulf Coast Collection Bureau, 2014 WL 4802457 (11th Cir. 2014), the Court of Appeals for the 11th Circuit reversed the District Court’s decision holding that it was not bound by the FCC’s determination of “prior express consent” under the TCPA.   The 11th Circuit found that “The district court exceeded its jurisdiction by declaring the 2008 FCC Ruling to be inconsistent with the TCPA”  under the Hobbs Act, 28 U.S.C. 2342.  The 11th Circuit found that the TCPA applied to the medical debt at issue; the FCC’s 2008 consent ruling applies to all creditors and collectors when calling wireless telephone numbers to recover goods and services received by consumers. The collection of medical debt falls within the purview of the FCC’s 2008 consent ruling.

The district court found that the 2008 FCC Ruling did not apply to the medical debt in this case because the Commission had addressed consent only in the context of consumer credit. But the FCC did not distinguish or exclude medical creditors from its 2008 Ruling. Quite the opposite, the FCC’s general language sends a strong message that it meant to reach a wide range of creditors and collectors, including those pursuing medical debts. The 2008 FCC Ruling clarified the meaning of “prior express consent” for all “creditors and collectors when calling wireless telephone numbers to recover payments for goods and services received by consumers.” 23 FCC Rcd. at 563. Moreover, the FCC noted that the debt collection calls at the heart of the 2008 Ruling are primarily regulated under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p, which includes medical bills within its broad definition of “debt”: “any obligation . . . of a consumer to pay money arising out of a transaction . . . primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a. Indeed, we have recognized that the collection of medical debt can give rise to an FDCPA violation. See, e.g., Bradley v. Franklin Collection Serv., Inc., 739 F.3d 606, 607 (11th Cir. 2014) (per curiam).

The 11th Circuit found that Mais “made available” his cellular telephone number to the creditor when he sound medical treatment; hence he consented to receive cellular telephone calls.

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 transactiont hat 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. 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.  Mais, through his wife, gave the hospital just such permission. On his behalf, Mais’s wife gave his cell phone number to a Hospital representative. She received the Hospital’s Notice of Privacy Practices, which informed her that “[w]e may use and disclose health information about your treatment and services to bill and collect payment from you, your insurance company, or a third party payer,” and that “[w]e may also use and disclose health information . . . [t]o business associates we have contracted with to perform the agreed upon service and billing for it.” The Notice explained that, when services are contracted with business associates, including “physician services in the emergency department and radiology,” the Hospital “may disclose your health information to our business associate so that they can perform the job we’ve asked them to do and bill you.” Mais’s wife signed a Conditions of Admission form in which she acknowledged receiving the Notice of Privacy Practices and “permit[ted] the hospital and the physicians or other health professionals involved in the inpatient or outpatient care to release the healthcare information for purposes of treatment, payment or healthcare operations.” We have little doubt that by signing the admissions forms Mais’s wife agreed to allow the Hospital to transmit his health information to Florida United so it could bill him for services rendered.

The 11th Circuit also found that the TCPA allows callers to obtain consent through “intermediaries” to preserve the intended protections of the TCPA;  Mais’s wife provided the cell phone number to the creditor through the hospital, as intermediary.

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.

The 11th Circuit held that

Ultimately, by granting the Hospital permission to pass his health information to Florida United for billing, Mais’s wife provided his cell phone number to the creditor, consistent with the meaning of prior express consent announced by the FCC in its 2008 Ruling. Gulf Coast is entitled to summary judgment precisely because the calls to Mais fell within the TCPA prior express consent exception as interpreted by the FCC. Under the Hobbs Act, the district court lacked jurisdiction to review the Commission’s interpretation. Therefore, we reverse the partial grant of summary judgment to Mais and remand to the district court with instructions to enter summary judgment in favor of Gulf Coast on its prior express consent defense.