Eleventh Circuit Bolsters FCC Interpretation of “Prior Express Consent” under the TCPA

By Gregory N. Blase, Andrew C. Glass, and Samantha A. Miko

The U.S. Court of Appeals for the Eleventh Circuit recently bolstered the Federal Communications Commission’s (“FCC”) interpretation of “prior express consent,” a key term under the Telephone Consumer Protection Act (“TCPA”).

In Mais v. Gulf Coast Collection Bureau, Inc., the plaintiff’s wife provided the plaintiff’s cellphone number on a hospital admittance form.  The form disclosed that any information supplied could be shared with the hospital’s affiliates and used for any purpose, including for billing.  After the plaintiff failed to pay a hospital affiliate’s invoice for treatment services rendered, the affiliate provided the plaintiff’s contact information to the defendant, which initiated collection activity, including contacting the plaintiff at the cellphone number that was provided on his admittance form by his wife.

The plaintiff filed suit in federal district court, alleging that the defendant had called the plaintiff’s cellphone using an automatic telephone dialing system (“ATDS”) without prior express consent in purported violation of the TCPA.  The defendant sought summary judgment on the basis that the plaintiff’s provision of his cellphone number on his admittance form constituted prior express consent under a 2008 FCC declaratory ruling that found prior express consent for collection calls when a consumer provides a wireless number in connection with the transaction that gave rise to the call.

The district court disagreed and granted summary judgment to the plaintiff.  In reversing, the Eleventh Circuit found that the FCC’s 2008 declaratory ruling was entitled to deference, and the district court’s failure to do so and its finding that the provision of the number on the form was only “implied” rather than “express” consent, was essentially an impermissible collateral attack on that decision in violation of the Hobbs Act.

In so holding, the Eleventh Circuit also found that under the FCC’s declaratory ruling, prior express consent may be provided through an intermediary, here the wife.  The Eleventh Circuit reasoned that “the appropriate analysis turns on whether the called party granted permission or authorization, not on whether the creditor received the number directly.”  Thus, the Eleventh Circuit concluded that the plaintiff’s authorization of the transfer of his information to a third party for billing purposes was sufficient to convey his prior express consent to receive calls from the defendant debt collector.

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