Reversing summary judgment in favor of a Telephone Consumer Protection Act plaintiff, the Eleventh U.S. Circuit Court of Appeals held that a cell phone number provided on a hospital admissions form constituted express consent to be contacted by a third-party debt collector.
While Mark Mais was being treated in the emergency room of Westside Regional Hospital, his wife filled out an admissions form. She provided his cell phone number and signed the form, which stated that the information included could be shared with third parties for billing purposes. Mais allegedly received between 15 and 30 prerecorded calls from Gulf Coast Collection Bureau, a debt collector seeking to recover for radiology costs incurred during Mais’s hospital visit.
Mais filed a putative class action suit under the TCPA. Gulf Coast moved for summary judgment, arguing that it could not be liable because Mais expressly consented to be contacted when his wife gave his cell phone number and signed the admissions form. The calls fell within a statutory exception for “prior express consent” as interpreted in a 2008 declaratory ruling from the Federal Communications Commission, the defendant told the court.
A federal district court disagreed, finding the Ruling did not apply. But on appeal, the Eleventh Circuit reversed and entered summary judgment in the debt collector’s favor.
Pursuant to the Hobbs Act, Congress unambiguously deprived the federal district courts of jurisdiction to invalidate FCC orders by granting the exclusive power of review to the federal appellate courts, the unanimous panel explained, and the lower court should never have reviewed the validity of the 2008 Ruling.
Mais’s claims fell squarely within the scope of the FCC order, the court said, providing an exception to liability under the TCPA.
“The 2008 FCC Ruling ‘conclude[d] that the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent to be contacted at that number regarding the debt,” the panel wrote. “There is no dispute that Mais’s wife listed his cell phone number on a hospital admissions form and agreed to the hospital’s privacy practices, which allowed the hospital to release his health information for billing to the creditor. As a result, the TCPA exception for prior express consent – as interpreted in the 2008 FCC Ruling – entitles Gulf Coast to judgment as a matter of law.”
The TCPA permits the FCC to create exemptions by rule or order for certain automatically dialed or prerecorded calls, the panel noted. The 2008 FCC Ruling, issued after notice and comment, established an exception to the “prior express consent” requirement where a cell phone number was provided to a creditor during the transaction resulting in the debt owed.
The district court exceeded its jurisdiction by considering the wisdom and efficacy of the Ruling, the court said, recognizing its validity and finding that it governed Mais’s claims.
Further, the FCC did not distinguish or exclude medical debt in the 2008 Ruling, the panel added. “Quite the opposite, the FCC’s general language sends a strong message that it meant to reach a wide range of creditors and collectors, including those pursuing medical debts,” the court wrote, and the use of the term “credit application” was meant to be an illustration, not an exclusive description.
“When it comes to expectations for receiving calls, we see no evidence that the FCC drew a meaningful distinction between retail purchasers who complete credit applications and medical patients who fill out admissions forms like the Hospital’s,” the court said.
Mais’s contention that he did not “provide” his cell phone number to Gulf Coast because the hospital passed it along also failed to sway the panel. “[W]e reject Mais’s argument that the 2008 FCC Ruling only applies when a cell phone number is given directly to the creditor,” the court said. “Mais’s narrow reading of the 2008 FCC Ruling 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 a creditor.”
The plaintiff offered no functional distinction between the two scenarios and “[p]lainly, Mais’s wife made his number available” by granting the Hospital permission to disclose it in connection with billing and payment, the panel said, noting an FCC ruling from earlier in the year that the TCPA doesn’t prohibit a caller from obtaining consent through an intermediary.
“Ultimately, by granting the Hospital permission to pass his health information [along] for billing, Mais’s wife provided his cell phone number to the creditor, consistent with the meaning of prior express consent announced by the FCC in its 2008 ruling,” the panel concluded. “Gulf Coast is entitled to summary judgment precisely because the calls to Mais fell within the TCPA prior express consent exception as interpreted by the FCC.”
To read the opinion in Mais v. Gulf Coast Collection Bureau Inc., click here.
Why it matters: In a positive development for both debt collectors and the medical industry, the federal appellate panel resoundingly upheld the FCC’s 2008 Ruling as well as its application to the calls at issue in the case. The FCC intended to include a broad range of creditors in the scope of the Ruling, the panel found, including medical debt. Coupled with a ruling from the agency on consent provided by intermediaries issued earlier this year, the court found it clear that when the plaintiff’s wife shared his cell phone number with the hospital, she provided prior express consent to be contacted by third-party debt collectors.