A U.S. District Court last week dismissed a class-action lawsuit citing Telephone Consumer Protection Act (TCPA) violations related to a series of autodialed collection calls made by a hospital provider to an individual's cell phone.
The judge in Hudson v. Sharp Healthcare was asked to find that the act of providing a mobile number to a creditor does not constitute prior express consent to be called at that number using an autodialer, notwithstanding the Federal Communication Commissions express finding that such an act does constitute prior express consent. But U.S. District Court Judge Michael M. Anello in the Southern District of California said the actions taken by Sharp Healthcare fell under the consumers prior express consent to contact her via cell phone. He granted the providers motion for summary judgment.
The court in ruling against the consumer flatly rejected a 2013 decision in Mais v. Gulf Coast Collection Bureau Inc., stating: ". . . Mais is viewed as an outlier decision and is not otherwise binding on this Court . . . In line with other courts in this district; this Court treats the FCC Orders as binding."
The Mais ruling is the only federal district court to conclude that district courts have jurisdiction to review FCC rulings and disregard FCC interpretation. In Mais, the U.S. District Court for the Southern District of Florida rejected an implied consent exception to the TCPA where the calls to the consumer concerned the collection of a past-due debt. In doing so, the Mais court specifically rejected a 2008 FCC ruling allowing implied consent where a call is made in an attempt to collect a debt.
In the Hudson case, the court agreed with the provider, ruling the consumer provided her prior express consent to receive calls on her cell phone when she voluntarily provided the number as her sole point of contact during the hospital admission process. The ruling follows the logic and result of the majority of cases ruling on the TCPAs prior express consent provisions. The cases generally hold that when consumers provide a creditor with their cell number they expressly consent to receive calls and text messages at that number relating to their relationship with the creditor.
ACA International, the largest association representing collection agencies and creditors, submitted an amicus brief in the Mais case last November to "provide assistance and insight" to the Eleventh Circuit with respect to the public-policy and due process implications of how the TCPA is interpreted and applied by the credit and collection industry. The Eleventh Circuit has set the Mais case for oral argument during the week of Sept. 15, in Jacksonville, Fla.
