The U.S. Court of Appeals for the Eleventh Circuit Court recently reversed a federal district court’s order holding that a 2008 Federal Communications Commission (FCC) ruling on express consent was inconsistent with the definition of “prior express consent” under the Telephone Consumer Protection Act (TCPA), and consequently was not entitled to any deference. In Mark S. Mais v. Gulf Coast Collection Bureau, Inc., the Eleventh Circuit has provided an important ruling that will make an express consent defense more viable in many TCPA cases.

Mark Mais, a radiology patient, had filed a class action lawsuit alleging, among other things, that Gulf Coast Collection Bureau, a collection agent for the hospital that administered the treatment, violated 47 U.S.C. Section 227 of the TCPA by making approximately 15 predictive dialer calls to his cell phone regarding an outstanding medical debt.

Gulf Coast argued that the plaintiff had expressly consented to the calls by virtue of his wife listing his cell phone number on a hospital admissions form and acknowledging receipt of the hospital’s privacy practices. The company contended that this, in turn, authorized the hospital to release his health information “to bill and collect payment from [Plaintiff], his insurance company or a third party payor.” Specifically, in moving for summary judgment prior to class certification, Gulf Coast noted that a 2008 FCC ruling, In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, held that providing a cell phone number “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.”

The district court, however, granted summary judgment in favor of Mr. Mais on the prior express consent defense. In doing so, the district court first determined that it had authority under 47 U.S.C. Section 402(a), known as the Hobbs Act, to review the FCC ruling since the objective of the lawsuit was to obtain damages and not facially invalidate the order. The district court then reasoned that the FCC's ruling was inconsistent with the plain language of the TCPA because it essentially created an implied consent exception, while 47 U.S.C. Section 227(b)(1)(A)(iii) of the TCPA required “prior express consent.” The district court also held that the 2008 FCC ruling was not intended to “apply to medical care transactions.”

In reversing the district court decision, the Eleventh Circuit held that the lower court did not have the authority under the Hobbs Act to review the validity of the FCC action. The court noted that “the Hobbs Act does not ask whether an FCC order was first invoked as part of a plaintiff’s claim or as an affirmative defense.” The Eleventh Circuit also rejected the district court’s conclusion that the 2008 FCC ruling did not apply to the collection of medical debts. The court noted that the FCC not only failed to explicitly carve out an exception for medical debt in its ruling, but also that the language noted it was intended to govern “all creditors and collectors when calling wireless telephone numbers.”

Lastly, the Eleventh Circuit also rejected Mr. Mais’ contention that the 2008 FCC ruling only applies when the cell phone number is given directly to the creditor, as opposed to an intermediary. In citing other FCC rulings, the court explained “the appropriate analysis turns on whether the called party granted permission or authorization, not on whether the creditor received the number directly.”

The Eleventh Circuit’s ruling stands in contrast to a recent federal district court decision out of New York on September 15, 2014. In Edward Zyburo v. NCSPlus, Inc., the Southern District of New York agreed with the district court in Mais that the 2008 FCC ruling on express consent is inconsistent with the plain language of the TCPA, and thus, not entitled to deference.

Ballard Spahr’s Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs). Our attorneys, including the attorneys who joined us from the New York City litigation firm Stillman & Friedman, P.C., to form Ballard Spahr Stillman & Friedman LLP, have substantial experience in handling litigation with DFS and the New York Attorney General.

For more information, please contact CFS Practice Leader Alan S. Kaplinsky at 215.864.8544 or kaplinsky@ballardspahr.com, John Culhane, Jr., at 215.864.8535 or culhanej@ballardspahr.com, or Marjorie J. Peerce at 212.223.0200 x8039 or peercem@bssfny.com.


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