Under what circumstances does a person give his “prior express consent” to be contacted on his cellphone by a creditor? The Sixth Circuit recently examined that very question in Hill v. Homeward Residential, Inc., where it determined that consent exists if the debtor gives a cellphone in connection with an existing debt and that the number need not be provided during the initial transaction forming the debit. No. 14-4168 (6th Cir. Aug, 21, 2015).

Background

In Hill, Plaintiff initially obtained a mortgage in 2003 and provided his home and work phone numbers on the initial application. Plaintiff subsequently cancelled his home phone and replaced it with his cell phone. When Plaintiff’s mortgage was transferred to Defendant Homeward Residential, he contacted the company to alert them that his primary phone number was now his cellphone number. Plaintiff subsequently fell behind on his payments, attempted to work out a loan modification, and ultimately defaulted on his mortgage. Plaintiff repeatedly provided Defendant with his cellphone in connection with these transactions. Plaintiff also provided express written consent for Defendant to call his cellphone.

Defendant allegedly called Plaintiff regarding his mortgage 482 times between 2009 and 2013, 176 of which were with an autodialing device. Plaintiff sued Defendant for using auto-dialing devices to contact him without his consent, in violation of the TCPA. Cross motions for summary judgment were denied by the district court. At trial, the jury returned a verdict for Defendant. Plaintiff appealed, arguing amongst other things, that the jury instruction on “prior express consent” was too broad.

The Sixth Circuit Opinion

The Sixth Circuit ruled that the following jury instruction, set forth below, was not “confusing, misleading, or prejudicial”:

“Prior express consent means that before Defendant made a call to Plaintiff’s cellular telephone number, Plaintiff had given an invitation or permission to receive calls to that number. Autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ‘prior express consent’ of the called party.”

The Sixth Circuit found the jury instruction to be consistent with the legal definition of prior express consent found in various FCC rulings, which held a creditor does not violate the TCPA when it calls a debtor who has provided his number in connection with an existing debt. While Plaintiff attempted to argue that “prior express consent” must be given during the transaction that resulted in the debt owed, which in this case was the initial mortgage issued in 2003, the Court did not agree. Instead, the Court ruled that a person gives “prior express consent” if he gives a company his cellphone number before it calls him. Of further note, the Court did not distinguish between regular and autodialed calls in the context of prior express consent, ruling “once a debtor gives his consent to be called on his cellphone, the creditor can use automated calls to that number.”

Implications

The Sixth Circuit’s ruling provides important clarity as to when and how a person can give prior express consent to being contacted on their cellphone. An equally important take-away is the Court’s finding that a consumer does not need to specifically consent to auto-dialed calls.