6th Cir. Says Patient Who Gave Cell Phone Number to Hospital Gave Consent to Be Called by Hospital and Hospital’s Debt Collectors

In Baisden v. Credit Adjustments, Inc., 2016 WL 561735, at *5-7 (C.A.6 (Ohio),2016), the Court of Appeals for the Sixth Circuit applied the doctrine of intermediary consent to find that a hospitals debt collectors had authority to call the hospital’s debtors on their cell phones when the written consent was broad enough to include disclosure of such phone numbers “to others”.

Baisden and Sissoko contend the FCC’s rulings do not apply where, as here, a consumer provides his cell phone number to one entity during the course of a business relationship, which then provides that number to a related entity, which then provides that number to a debt collector to call on its behalf. Plaintiffs focus on the 2008 Ruling’s statement that “prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor.” 2008 Ruling, 23 FCC Rcd. at 564 (emphasis added). The essence of their argument is that in order for the FCC’s rulings to apply, plaintiffs needed to provide their cell phone numbers to their creditor, Consultant Anesthesiologists, which they did not do. We reject this narrow reading of the FCC’s interpretations.  We recently (and “[u]nsurprisingly”) held in Hill that “a person gives his ‘prior express consent’ under the [TCPA] if he gives a company his number before it calls him.” 799 F.3d at 552. There, we emphasized that the context in which a debtor provides his cell phone number matters: the concept of “prior express consent” “ensures that a debtor who gives his number outside the context of the debt has not given his consent to be called regarding the debt.” Id. Importantly, we noted that while debtors “typically give their cellphone number as part of a credit application at the beginning of the debtor-creditor relations, it doesn’t have to be that way.” Id. (alterations and internal citations omitted).. . .Baisden and Sissoko argue Mais is “seriously flawed” because, they contend, it enlarges the scope of the FCC’s rulings in four key ways. First, they claim Mais construed the phrase “provide” too broadly to mean something more than just “directly giving a cellular telephone number to a creditor” and thus read out its consumer protection construction, especially in light of criticism that the rule is “manifestly contrary to the statute and unreasonable.” We find this contention to be meritless because it would require us to both opine on the validity of the FCC’s rulings (which we cannot do) and ignore the FCC’s use of the word “available,” as well as its clear directive that there is no one way for a party to provide consent.  Second, plaintiffs argue that “prior express consent” is an exception and thus must be strictly construed. This may be true, but to follow this logic, we must reject the FCC’s guidance—which again, we cannot do in this procedural posture.  Third, plaintiffs contend that none of the FCC’s rulings relied upon by the Eleventh Circuit support its conclusion. Notably, according to plaintiffs, the Mais court misread GroupMe to apply to the provision of cell phone numbers by an intermediary as opposed to “prior express consent.” They also contend that GroupMe’s holding that “the TCPA does not prohibit a caller … from obtaining the consumer’s prior express consent through an intermediary” is narrow because the service at issue there both obtained “prior express consent” from consumers and then represented that “prior express consent” to others, and note that there is no record evidence that Mount Carmel Hospital both obtained “prior express consent” and then represented to Consultant Anesthesiologists that it had done so. We disagree. GroupMe stressed that “allowing consent to be obtained and conveyed via intermediaries in this context facilitates … normal, expected, and desired business communications in a manner that preserves the intended protections of the TCPA.” 29 FCC Rcd. at 3445 (emphasis added). The 2015 Order also emphasized that consent depends “upon the facts of each situation.” 30 FCC Rcd. at 7990. Similarly, if one provides a cell phone number to a health organization seeking medical treatment, and a provider affiliated with that health organization treats that person for the same ailment, it is normal, expected, and desired to interpret that provision of the cell phone number as an invitation for an entity affiliated with that organization to call for something arising out of one’s treatment.  Fourth, Baisden and Sissoko argue that Mais undermines the rationale of the “prior express consent” exception. That is, the rule codifies social practice: if one gives a number (especially when requested), it is an invitation to be called. From this, they contend there is no social practice to extend the giving of a number to be an invitation for a third party to call. This argument, again, asks us to opine on the validity of the FCC’s interpretations. And, for the reasons already stated, one could argue that there is a social practice applicable to the facts at issue here.  In sum, we find Mais persuasive and adopt its conclusion that consumers may give “prior express consent” under the FCC’s interpretations of the TCPA when they provide a cell phone number to one entity as part of a commercial transaction, which then provides the number to another related entity from which the consumer incurs a debt that is part and parcel of the reason they gave the number in the first place. More specifically, the provision of a cell phone number to a hospital that then provides that cell phone number to an affiliated physicians’ group that provided medical services to a consumer arising out of the same occurrence can constitute “prior express consent” under the TCPA. The FCC’s rulings in this area make no distinction between directly providing one’s cell phone number to a creditor and taking steps to make that number available through other methods, like consenting to disclose that number to other entities for certain purposes. And, the FCC’s GroupMe ruling and 2015 Order make clear that there is no one way for a caller to obtain consent, and that such consent can be conveyed by another party. The district court did not err in concluding the FCC’s interpretations applied to this matter.