On Sept. 29, 2014, the Eleventh Circuit Court of Appeals ruled 3-0 in favor of the credit and collection industry in the case of Gulf Coast Collection Bureau, Inc. v. Mais, No. 13-14008 (11th Cir., Sept. 29, 2014). At issue was the district court’s refusal to apply the Federal Communications Commission’s interpretation of the term “prior express consent” in the Telephone Consumer Protection Act.
The Eleventh Circuit ruled that the district court lacked the power to review the validity of the FCC’s 2008 declaratory ruling interpreting the term “prior express consent” under the TCPA. The court also held that the FCC’s 2008 declaratory ruling applies to a wide range of creditors and collectors, including those pursuing medical debt.
In so ruling, the court found that the consumer’s act of providing a mobile contact number to a creditor is consistent with the meaning of “prior express consent” announced by the FCC in its 2008 ruling, and the debt collector’s calls to the consumer fell within the TCPA prior express consent exception as interpreted by the FCC. This is the first federal appellate court opinion to clarify the scope of the FCC’s consent ruling.
In the Mais case, the underlying facts provided that, in 2009, the consumer went to the emergency room while wife interacted with the admissions staff on his behalf. She provided her husband’s cellular telephone number to the admissions representative, identifying it as a residential line. The consumer’s wife signed additional paperwork for her husband, including a “Notice of Privacy Practices” that stated the hospital “may use and disclose health information about [the consumer’s] treatment and services to bill and collect payment.”
Neither the consumer nor his wife ever provided his number to any other provider/creditor related to his hospital stay. Instead, a hospital-based radiology provider electronically retrieved his cellular telephone number and other information from the hospital. After not paying the charges, the consumer’s account was forwarded to a third-party debt collector who used a predictive dialer to dial telephone numbers through automated technology without human involvement.
Using its predictive dialer, the third-party debt collector placed calls to the consumer in an effort to collect the medical debt owed. The third-party debt collector attempted between 15 and 30 debt collection calls to the consumer’s cellular telephone and left four messages relating to the debt.
On appeal, the Eleventh Circuit reversed every material aspect of the lower court’s controversial ruling. First, the Eleventh Circuit held that district courts do not have jurisdiction to challenge FCC rulings. According to the court, district courts are prevented from issuing a ruling that is contrary to an FCC ruling even if the primary purpose of the underlying lawsuit is not to directly challenge the ruling.
Second, the court held that the FCC did not distinguish between medical debt and commercial debt in its prior express consent ruling; therefore, calls to collect medical debt should not be treated any differently than calls to collect commercial debt.
Third, the court held that the consumer “provided” his cell phone number to the creditor even though it was provided indirectly through the hospital administrator. In reaching this conclusion, the court noted that the hospital was authorized to provide the phone number to the creditor on the consumer’s behalf. The court also pointed to the FCC’s recent declaratory rulings clarifying that the “TCPA does not prohibit a caller from obtaining consent through an intermediary.”
On Nov. 1, 2013, ACA International submitted an amicus brief to the Eleventh Circuit in the Mais appeal. ACA submitted the “friend of the court” brief to support its member’s case, and to provide insight to the court with respect to how the TCPA is interpreted and applied by the credit and collection industry and why the TCPA must be consistently and predictably applied.
ACA argued that the district court’s decision not only runs contrary to the statutory scheme and results in bad public policy, it also deprives the credit and collection industry of fair notice of what the TCPA both requires and prohibits. In the Eleventh Circuit’s decision in Mais, the court not only acknowledged ACA’s amicus brief, it quoted ACA’s amicus brief almost directly when it rejected “Mais’ argument that the 2008 FCC Ruling was not an order within the meaning of the Hobbs Act.”
ACA’s efforts to proactively support the credit and collection industry are part of the association’s Industry Advancement Program, and are made possible by funding through ACA’s Industry Advancement Fund. More information: www.acainternational.org/iap.aspx