On May 8, 2013, Judge Robert Scola, Jr. of the United States District Court for the Southern District of Florida rejected both the application of the Hobbs Act and the Federal Communications Commission’s (FCC) position that providing a cell phone number to a business/creditor is “prior express consent” under the Telephone Consumer Protection Act. By restricting what constitutes “express prior consent,” in contradiction to both the FCC’s position and other court rulings, Judge Scola’s opinion creates additional uncertainty as which autodialed or prerecorded/automated messages violate the TCPA.
In Mais v. Gulf Coast Collection Bureau, plaintiff Mark Mais’s wife included his cell phone number on the admission paperwork at a hospital. After Mais failed to pay his emergency room hospital bill, Gulf Coast Collection Bureau made autodialed calls to Mais’s cell phone as part of its collection efforts. Mais sued under the TCPA, which prohibits autodialed calls made to cell phones without the called party’s “express prior consent.”
Gulf Coast argued that, based on the FCC’s 2008 declaratory ruling that providing a cell phone number to a creditor, e.g., as part of a credit application, constitutes “prior express consent,” it had Mais’s “prior express consent” to call him because his wife, acting on his behalf, provided his cell phone to the hospital. The court disagreed. In granting summary judgment to Mais, the court held that the FCC’s position was based on implied and not express consent and was thus inconsistent with the TCPA’s plain language:
The FCC was not in fact talking about “express consent,” but is instead engraphing into the statute an additional exception for “implied consent” - - one that Congress did not include. Although it may be reasonable to presume that an individual, in providing his cell phone number on a credit application, consents to be called at that number by the creditor, such consent is “implied” through the individual’s conduct - -that is, his act of writing down his number on the application. He has not directly, clearly, and unmistakably stated that the creditor may call him, and so he has not given “express consent.” The FCC’s construction is inconsistent with the [TCPA]’s plain language, because it impermissibly amends the TCPA to provide an exception for ‘prior express or implied consent.’ Congress could have written the [TCPA] that way, but it didn’t. And because it didn’t, the FCC’s contrary construction is not entitled to deference.
The court’s holding that the provision of a cell phone number to a business is not “express prior consent” under the TCPA is inconsistent with the majority of court rulings, including the Ninth Circuit Court of Appeals’ December 28, 2012 Amended Opinion in Meyer v Portfolio Recovery Associates, LLC. Although only a district court decision, Mais highlights the need for more certainty in the interpretation of the TCPA. At this point, it appears only the United States Supreme Court is in a position to provide direction.