In its recent opinion affirming the district court’s summary judgment in favor of a debt collection agency under the Telephone Consumer Protection Act (TCPA), the Sixth Circuit determined that the phrase “prior express consent” applies broadly to include the use of a cell number obtained through an intermediary. In so ruling, the Court has, effectively, created the affirmative defense of “consent” in TCPA cases, which may be pled by both the party in direct privity with the consumer and as extended to an intermediary who gains access to the called number because part of the same transaction.

In this putative class action, the consumers alleged a TCPA violation for a debt collector’s use of an “automatic dialing system” and an “artificial or prerecorded voice” to place collection calls to the consumers’ cell phones. The consumers provided their cell numbers as part of their initial hospital visit when executing various consent authorizations. The forms authorized the use of the completed information – including their cell phone numbers – for billing, payment and collections, among other uses. However, the consumers never specifically provided their cell numbers to the anesthesiologist, whom the consumers failed to pay, nor the collection agent hired once their accounts were placed for collection by the anesthesiologist. Thus, the consumers claimed a violation of the TCPA when the collection agency, through an auto dialer, used their cell numbers.

To maintain a viable TCPA claim, the putative class was required to demonstrate that defendants lacked “prior express consent” from the consumers to make the calls. The Sixth Circuit harmonized various FCC interpretations of the TCPA element requiring “prior express consent” to conclude that the TCPA cannot be read so narrowly as only authorizing consent by the specific creditor with whom the consumer provided a cell number (i.e., not limited to “direct delivery” cases).

Specifically, based on the FCC’s 2008 ruling that the TCPA allows a caller to obtain consent through an intermediary, the Sixth Circuit concluded that “permission or authorization” to receive the call is the critical inquiry (as opposed to whether the caller received the number directly) and can be discerned where, as here, the anesthesiologist is an affiliated provider whose treatment arose out of the same authorization and transaction as that granted to the original provider, in this case the hospital, thereby giving rise to consent as an affirmative defense.

On the basis of the Sixth Circuit’s opinion, putative class claims for violations under the TCPA are gutted when the class representatives are unable to effectively rebut the TCPA target’s defense of consent – either directly or as an intermediary – to the use of a phone number that was part of the same authorization and transaction under which the phone number was provided initially.

This opinion gives rise to a more critical and potentially sustained burden for class claimants during the pleading and class certification stages of this popular area of consumer class litigation.