Joining other federal appellate courts, the Sixth Circuit Court of Appeals recently held that prior consent that is provided indirectly to a third party can be deemed express consent for purposes of TCPA compliance.

Two patients of Mount Carmel Hospital in Columbus, Ohio provided their cellphone numbers while completing authorization forms for medical care. Zachary Baisden agreed that Mount Carmel could use his "health information" for "billing and payment" purposes, which information could be released in a variety of forms, from electronic to verbal. Brenda Sissoko signed a different version of the form, permitting the release of her health information whether in electronic, written, or verbal form "to companies who provide billing services for physicians or other providers involved in my medical care."

Baisden and Sissoko owed $850 and $444.94, respectively to Consultant Anesthesiologists, which provided anesthesiology services to Mount Carmel. Consultant transferred their delinquent accounts to Credit Adjustments. The debt collector called their cellphone numbers in an attempt to collect on their accounts.

In response, Baisden and Sissoko filed suit. Because they never provided Credit Adjustments with their cellphone numbers, they claimed the debt collector violated the TCPA by calling them. Credit Adjustments moved for summary judgment, arguing that by providing their numbers to the hospital where they received medical care, the plaintiffs gave their prior express consent to receive such calls.

A federal district court agreed that the necessary consent can be provided indirectly and a panel of the Sixth Circuit affirmed.

The Federal Communications Commission has provided "extensive" guidance on what constitutes prior express consent, the court explained, referencing four interpretations pertinent to the case. In 1992, the FCC interpreted prior express consent to include a form of implied consent in a Report and Order, writing that "persons 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." For support, the agency relied upon the TCPA's legislative history.

In 2008, the FCC extended this proposition to cellphone numbers in a Ruling that placed the burden on callers to demonstrate that consent was provided. Applying both the 1992 Order and 2008 Ruling to intermediaries, a 2014 Declaratory Ruling from the FCC held "that the TCPA does not prohibit a caller … from obtaining the consumer's prior express consent through an intermediary[.]"

Most recently, the agency's 2015 Order affirmed the 2014 Declaratory Ruling, and stated again that consent can be provided more than one way and that the context in which consent is provided is important.

The plaintiffs took a narrow reading of the FCC guidance, zeroing in on language in the 2008 Ruling that "prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor."

Relying heavily on an Eleventh Circuit decision with similar facts (Mais v. Gulf Coast Collection Bureau Inc.), the Sixth Circuit rejected the plaintiffs' interpretation of the FCC guidance as well as their objections to the Maisruling.

Baisden and Sissoko argued that Mais was "seriously flawed" and enlarged the scope of the FCC rulings to read out the consumer protections found in the TCPA. But the court refused to opine on the validity of the FCC's rulings or ignore the agency's guidance. The 2014 Declaratory Ruling "stressed that 'allowing consent to be obtained and conveyed via intermediaries … facilitates … normal, expected, and desired business communications in a manner that preserves the intended protections of the TCPA.'"

The 2015 Order similarly stressed the importance of context when considering a consumer's consent, which depends on the facts of each situation, the court said. "[I]f 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."

"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," the court said. "And, the FCC's [Declaratory 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."

Considering the context of the consent provided by both Baisden and Sissoko, the panel found both forms satisfied the TCPA.

Sissoko's authorization form was nearly identical to that in Mais, the court noted, and it "could not be clearer … as to what Sissoko permitted Mount Carmel Hospital to do with her 'health information'—Mount Carmel Hospital could give it to Consultant Anesthesiologists for the purposes of debt collection, and Consultant Anesthesiologists could give the same to Credit Adjustments."

Further, the plaintiff's cellphone number was included within the scope of "health information," the panel found, concluding that a ruling it excluded would yield a nonsensical result. "[T]he authorization is a contract related to giving consent for medical care, and, as such, 'health information' must be read through this prism to give it a proper meaning," the court said. "Contact information most undoubtedly is any information that relates to a patient's payment for care provided."

As for Baisden, his authorization form allowed Mount Carmel to use his health information "for as many reasons as needed" and the court reiterated that contact information was included in the scope of "health information."

"[T]he context in which Baisden and Sissoko provided their cell phone numbers is essential to determining whether they provided 'prior express consent' to receive calls to those numbers," the panel concluded. "They sought medical treatment from Mount Carmel Hospital, and in the course of this relationship, both gave Mount Carmel Hospital their cell phone numbers and authorized it to disclose their cell phone numbers to others. The 'other' in this case—Consultant Anesthesiologists—has a significant relationship to Mount Carmel Hospital, plaintiffs, and most critically, the debts owed by plaintiffs that arose from the transactions in which plaintiffs provided their cell phone numbers. This case, therefore, fits comfortably within the 'prior express consent' limits set forth by the FCC."

To read the opinion in Baisden v. Credit Adjustments, Inc., click here.

Why it matters: Context is everything, the Sixth Circuit emphasized in its decision: the plaintiffs provided their cellphone numbers and authorization for the hospital to share them with third parties and the calls made were in direct relation to the services they received at the hospital. The panel joined the Ninth and Eleventh Circuits to recognize that prior express consent in satisfaction of the TCPA can be provided in a number of different ways, including indirectly.