A plaintiff agreed to be contacted on her cell phone when she completed paperwork upon admission for medical services, a California federal court has ruled when dismissing a putative class action complaint alleging violations of the TCPA.
Seeking treatment for possible food poisoning, Jane Hudson and her child went to Sharp Grossmont Hospital in San Diego. Upon admission, Hudson received and acknowledged several documents, including an admission agreement, an attestation, and a notice of privacy practices. In the attestation, Hudson verified her cell phone number as her sole point of contact with Sharp by initialing the number and signing the same page.
The privacy notice stated that Sharp might disclose information for billing purposes. A dispute about payment arose and Sharp made a series of autodialed calls to Hudson’s cell phone, some referencing her payment and other payments for her child. Hudson filed suit alleging the calls violated the TCPA, and both parties moved for summary judgment.
Finding both that Sharp had prior express consent to call Hudson’s cell phone and that the purpose of the calls was within the scope of consent, U.S. District Court Judge Michael M. Anello sided with defendant.
The hospital provided evidence that its admissions policies were followed with regard to Hudson and her paperwork, the court noted. Relying upon Federal Communications Commission regulations – and not Mais v. Gulf Coast Collection Bureau Inc., a Florida case with similar facts that the judge described as “an outlier decision” – the court said Sharp “provided substantial evidence” that it had prior express consent to call Hudson, particularly as she conceded in her deposition that she may have provided her number and simply forgot.
Hudson’s argument that Sharp must have obtained her number from another source was “wholly speculative,” Judge Anello wrote, noting that her initials appeared directly adjacent to her telephone number on the attestation form, which she also signed. Such “verifying” of a cellular number “does not substantively differ from ‘providing’ that number for purposes of determining prior express consent,” the court said.
Turning to the scope of Hudson’s consent, the court rejected her contention that it was limited to phone calls regarding test results or medical information. The TCPA does not require that calls be made for the exact purpose for which the number was provided, Judge Anello said, but must bear “some relation” to the product or service.
“The Court concludes that the subject calls were within the scope of consent,” he wrote. “Regardless of what Plaintiff may have believed regarding Sharp’s reason for having her cellular telephone number, the Court finds that the calls were directly related ‘to the product or service for which the number was provided.’ ”
Did Hudson revoke her consent? She claimed that she did during multiple phone conversations with Sharp representatives, although she agreed that she never stated “Don’t call me on this cell phone anymore!” or words to that effect. The court bifurcated the calls she received and concluded that Sharp stopped placing calls to Hudson regarding her own account after she confirmed healthcare coverage.
As for calls relating to her child’s account, Judge Anello reviewed the transcripts and found “no evidence of any agreement to actually remove Plaintiff from the dialer, nor did Plaintiff ask to be removed from the dialer.” The Sharp representative indicated that she did not think Sharp should be calling Hudson, but merely stated that she would send an e-mail to see if Hudson could be taken “off the dialer,” the court noted.
“There is no evidence that Plaintiff demonstrated any unwillingness – through words or conduct – for Sharp to continue calling her cellular telephone number to obtain payment,” the judge wrote. “Although the Court recognizes that Sharp agents believed Plaintiff should not have been called, those agents merely indicated they would ‘send an e-mail’ or ‘suppress calls’ for a period of time.”
To read the order in Hudson v. Sharp Healthcare, click here.
Why it matters: The Hudson decision takes a different approach than that recently seen in a Florida federal court, and affirms that consumers provide consent for later calls by verifying their contact information. More importantly, the Hudson decision held that affirmative steps can aid in arguments about consent to receive calls at a telephone number, such as having a customer initial by his or her phone number with a signature on the same page. The court also adopted a broad interpretation of the scope of a customer’s consent and set a standard for revoking consent.