On February 12, 2016, the United States Court of Appeals for the Sixth Circuit issued its opinion in Baisden v. Credit Adjustments, Inc., 15-3411 (CA 6) (for publication), affirming dismissal of a purported class action under the Telephone Consumer Protection Act (“TCPA”). In Baisden, plaintiffs were the recipients of medical services from Mount Caramel Hospital in Ohio. As part of the care provided, plaintiffs received anesthesiology services from Consultant Anesthesiologists, an anesthesiologist group working within the hospital. When plaintiffs failed to pay for the services rendered, Consultant Anesthesiologists sent their accounts to debt collector, Credit Adjustments. Credit Adjustments used an automatic telephone dialing system and prerecorded messages to contact plaintiffs on their cell phones to request payment.
In support of their claims, Plaintiffs argued that they had never provided “prior express consent” to Credit Adjustments to contact them on their cell phones, as required under the TCPA. In response, Credit Adjustments argued that plaintiffs’ provision of their cell phone numbers to Mount Caramel, along with their signing of Patient Consent and Authorization forms that detailed information collected could be used for billing and payment purposes, satisfied the “prior express consent” requirement of the TCPA.
In affirming the district court’s grant of summary judgment to Credit Adjustments, the Sixth Circuit held that plaintiffs provided “prior express consent” by providing their cell phone numbers to Mount Caramel; it was not necessary for plaintiffs to have provided their cell phone number to Consultant Anesthesiologists directly. The Court reasoned 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.
Id., p. 11.
Notably, the Sixth Circuit approvingly applied the Eleventh Circuit’s holding in Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir. 2014), adopting its reasoning that “the appropriate analysis turns on whether the called party granted permission or authorization, not on whether the creditor received the number directly.” Thus, plaintiffs’ agreement to be contacted for billing purposes, evidenced by the signed Patient Consent and Authorization forms, proved fatal to their claims—regardless of the entity actually making the calls.
Equally important to the direct-indirect consent issue, the Sixth Circuit also reinforced its view that the telephone number does not have to be provided at the “initial transaction that creates the debt” in order for it to be within the scope of the Federal Communication Commission’s 2008 requirement that it be provided “during the transaction that resulted in the debt owed.” See In the Matter of Rules & regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559 (2008). “During the transaction” is a much broader concept which allows for “prior express consent” when the telephone number is provided by the “called party” in connection with an existing debt, which the Sixth Circuit found existed on these facts.
The full text of the opinion can be read here.