The U.S. Court of Appeals for the Eleventh Circuit has clarified the standard for “prior express consent” under the Telephone Consumer Protection Act (TCPA) in a September 29, 2014 decision reversing an outlier ruling by a lower court. In Mais v. Gulf Coast Collection Bureau, Inc., 13-14008 (11th Cir. Sept. 29, 2014), the appellate court held that the district court erred in diverging from the standard set by the Federal Communications Commission (FCC) in a 2008 ruling. The FCC ruling stated that providing a cellular phone number to a creditor as part of a credit application constituted prior express consent to be contacted at that number regarding the debt. The decision in the lower court, which rejected the FCC standard in a case involving a medical debt, had created significant uncertainty over the appropriate standard for determining what constitutes prior express consent.

The case arose out of automated debt collection calls made to the plaintiff on behalf of a hospital-based radiology provider in an effort to collect payment for medical treatment. At the time of his admission to the hospital, the patient’s wife completed and signed admission forms on his behalf and provided his cell phone number. After the plaintiff failed to pay for the treatment, the hospital and its debt collector made several dozen automated calls to the cell number in an effort to collect payment for the unpaid bills. The plaintiff filed a putative class action alleging that the automated calls violated the TCPA because he had allegedly not consented to the communications.

The hospital and the debt collector moved for summary judgment on the affirmative defense that the calls did not violate the TCPA because they had received “prior express consent” when the wife provided the plaintiff’s cell phone number on the hospital admission forms. The defendants relied on a 2008 FCC ruling which concluded that “the provision of a cell phone number to a creditor,e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 564. Prior to Mais, district court decisions had uniformly followed the FCC standard.

The district court in Mais, however, rejected the FCC standard and granted summary judgment to the plaintiff. Mais v. Gulf Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226 (S.D. Fla. 2013). The district court stated that the FCC interpretation was not entitled to deference because, from the court’s perspective, it was inconsistent with the TCPA statutory language. According to the district court, implying consent from the provision of a cell phone number to a creditor impermissibly expanded the statutory exception to cover prior implied consent, when the statutory language required express consent. Id. at 1239.

On appeal, the Eleventh Circuit reversed. The Eleventh Circuit held that the issue was resolved by the Hobbs Act, which delegates exclusive jurisdiction to the courts of appeals to determine the validity of FCC orders. 47 U.S.C. §402(a); 28 U.S.C. §2342. Under the Hobbs Act, the district court exceeded its powers by refusing to apply the FCC interpretation. Accordingly, the FCC standard was controlling and should have been applied by the district court.

This Eleventh Circuit’s decision, which reverses the most prominent outlier case on the standard for prior express consent, may help to bring much needed clarity to this area of the TCPA. Although most courts have rejected the district court’s decision in Mais, a few courts have followed Mais and have diverged from the FCC standard. See Zyburo v. NCSPlus, Inc., 12-CV-6677, 2014 WL 4536932 (S.D.N.Y. Sept. 15, 2014) (agreeing with district court in Mais). A number of plaintiffs have relied on Mais in support of their argument that the FCC’s interpretation was not entitled to deference.

The issue of consent will continue to develop in TCPA litigation and before the FCC. Another contested issue is the scope of the consent provided by the consumer. (Click here for Sutherland’s Legal Alert: Is the Scope of Consent Unlimited?). More broadly under the TCPA, companies are continuing to adjust to new FCC rules that went into effect in late 2013, which set a higher standard for the type of consent required for marketing calls made to cell phones. (Click here for Sutherland’s Legal Alert on the FCC rules for marketing calls.) For marketing calls, unlike the collection calls at issue in Mais, the FCC rules now require prior express written consent.