The Telephone Consumer Protection Act (TCPA) makes it unlawful for any person to place a call using any automatic telephone dialing system or any artificial or prerecorded voice to a cell phone number without obtaining the prior express consent of the called party. The FCC has interpretive authority over the TCPA and “has provided extensive guidance regarding what constitutes prior express consent.” On Friday, the Sixth Circuit decided a challenge to the district court’s finding of prior express consent in Baisden, et al. v. Credit Adjustments, Inc.

The cases, a putative class action, arose out of Credit Adjustments, Inc.’s attempt to collect slightly more than $1,000 of medical debt incurred by the plaintiffs. While the debt was incurred at the hospital, an independent anesthesiology group provided anesthesiology services, the fees for which are the basis of the unpaid medical bills. Plaintiffs claimed that Credit Adjustments, the collector hired by the anesthesiology group, used an automatic telephone dialing system in violation of the TCPA. While Credit Adjustment does not deny using an automatic telephone dialing system and an artificial or prerecorded voice, the company contends that by virtue of plaintiff’s provision of their cell phone numbers to the hospital where they received medical care, plaintiffs gave their prior express consent to receive such calls. The district court agreed and awarded summary judgment for Credit Adjustments.

The Sixth Circuit noted that the FCC has held that the TCPA does not prohibit a caller from obtaining the consumer’s prior express consent through an intermediary and that calls placed by a debt collector (such as the defendant) on behalf of a creditor (the anesthesiology group) are treated as if the creditor itself placed the call.  However, the plaintiffs claim that they provided their cell phone number to the hospital, not the anesthesiology group. Therefore, the anesthesiology group could not have transferred consent to Credit Adjustment unless plaintiffs provided their cell phone numbers directly to the anesthesiology group.

The Sixth Circuit, upholding the district court’s decision and adopting the Eleventh Circuit’s approach to the issue, rejected such a narrow interpretation of the TCPA exception. The Eleventh Circuit reasoned that the narrow reading “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.” In other words, the Eleventh Circuit approach allows for degrees of separation between the creditor and the consumer, so long as there are contractual bridges connecting the parties. The Sixth Circuit found justification to adopt this approach in the FCC’s finding that prior express consent exists when “one has made the number available to the creditor,” not just directly delivered the number. The Sixth Circuit’s adoption of the Eleventh Circuit approach expands the prior express consent exception to the TCPA, making it easier for creditors to contact debtors through automated telecommunication.