Mais Reversed: If You Give Me Your Number, I Can Call It, However I Want.

Foley & Lardner LLP

“If you give me your number, I can call it, however I want.” For more than twenty years this statement has summarized the Federal Communications Commission view of prior express consent under the Telephone Consumer Protection Act. On September 29, 2014, the United States Court of Appeals for the Eleventh Circuit vindicated that view by overruling an outlier federal district court decision which caused trepidation among businesses using automatic telephone dialing system to reach customers.

Here is a reminder of the facts of Mais v. Gulf Coast Collection Bureau: In 2009, Mark Mais went to the Westside Regional Hospital emergency room in Broward County, Florida for treatment. His wife Laura completed the admission paperwork and provided his cell phone number to the hospital admitting staff. Florida United Radiology provided services for Mais that day. It later sent Mais a bill for $49.03. Mais did not pay. His debt was referred to the Gulf Coast Collection Agency. Gulf Coast uses an automatic telephone system to call debtors. It called Mais somewhere between 15 and 30 times with an automatic telephone dialing system in an effort to collect.

Mais filed suit under the TCPA on behalf of himself and others arguing that Gulf Coast did not have prior express consent to call him using an automatic telephone dialing system. U.S. District Court Judge for the Southern District of Florida, Robert Scola, agreed and granted Mais’s motion for summary judgment. To decide this prior express consent issue, the district court had to jump some thorny hurdles. First and foremost, the FCC has long held that “telephone subscribers who knowingly release their phone numbers to a business will be deemed to have given their invitation or consent to be called at [that number], absent instructions to the contrary.” Given that Mais’s wife provided the number on Mais’s admitting papers, it no doubt seemed to defendant that it had a strong position.

But the district court refused to defer to the FCC. It acknowledged that the Hobbs Act vests in the Federal Courts of Appeal with the exclusive jurisdiction to enjoin, set aside, suspend or determine the validity of final orders of the FCC. However, Mais had not filed any proceeding to enjoin, set aside, annul or suspend an FCC order. Instead he was seeking damages for illegal debt collection calls. Because the central purpose of the lawsuit was not to set aside an FCC order, the district court found the Hobbs Act did not apply.

The Eleven Circuit disagreed. It found that the district court had exceeded its authority by declaring the FCC’s definition of prior express consent inconsistent with the TCPA. The appellate court concluded that the district court lacked jurisdiction to consider any claim to that of an FCC order (subject to the Hobbs Act) is “wrong as a matter of law” or is “otherwise invalid.”

The Eleventh Circuit also rejected the district court’s alternative reason for granting summary judgment to Mais. Judge Scola had held that Laura Mais’s providing her husband’s number to one creditor (the hospital) did not and could not amount to consent for a collection agency working on behalf of another creditor (Florida United Radiology) to call. Judge Scola agreed with Mais’s argument that providing his cell phone number to the hospital could not be construed as consent for the radiology company to call, because consent cannot be transferred from one creditor to another.

For the Eleventh Circuit the core issue was “whether a called party ‘provides’ his cell number to a creditor when (during the transaction creating the debt) he authorizes an intermediary to disclose his number to the creditor for a debt collection.” The appellate court found that Mais’s wife made his number available to Florida United when she granted the hospital permission to disclose it in connection with billing and payment. According to the appellate court, the key is whether the called party granted permission or authorization for the calls, not whether the creditor received the number directly. Because Mais gave the hospital permission to use and disclose his health information for purposes of billing and collection, such information could be given to business associates with whom the hospital had contracted to provide services in the emergency room.

With this decision, the Eleventh Circuit reversed what was probably the worst case in the United States on the issue of prior express consent and provided favorable language about the ability of an intermediary to obtain prior express consent from a consumer for use by another.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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