express consent

SIXTH CIRCUIT REJECTS HYPERTECHNICAL READING OF TCPA CONSENT REQUIREMENT

The Sixth Circuit recently joined the Federal Communications Commission (FCC) and Eleventh Circuit in holding that “prior express consent” can be obtained and conveyed via intermediaries. In Braisden v. Credit Adjustments, Inc., plaintiffs filed a putative class action contending that defendant violated the Telephone Consumer Protection Act (“TCPA”) when it placed calls to their cell phone numbers using an automatic telephone dialing system and artificial or prerecorded voice in an attempt to collect a medical debt. Defendant did not dispute that it placed the calls or that it used an autodialer. Rather, defendant maintained that by virtue of giving their cell phone numbers to the hospital where they received medical care, plaintiffs gave their “prior express consent” to receive such calls. The district court entered summary judgment for defendant on this basis and the Sixth Circuit affirmed.

Specifically, plaintiffs had received medical care from a hospital which utilized the services of a third party anesthesiologist. When the anesthesiologist did not get paid, the anesthesiologist transferred the delinquent accounts to defendant for collection. Defendant contacted plaintiffs at the numbers provided by the anesthesiologist, which had received the numbers from the hospital. Notably, the plaintiffs had signed admission forms permitting the hospital to release their “health information” to third parties for purposes of “billing and payment” or “billing and collecting monies due.” Plaintiffs argued that because they had not given their numbers to defendant or the creditor on whose behalf it was calling, plaintiffs had not provided prior express consent to be called at those numbers. The Sixth Circuit disagreed, finding that the FCC held in a 2014 Declaratory Ruling that consent can be obtained and conveyed by intermediaries. The Sixth Circuit further found that cell phone numbers fell within the definition of “health information” under a logical reading of the admission forms and rejected plaintiffs’ narrow interpretation of a 2008 FCC Declaratory Ruling which stated that a number must be “provided during the transaction that resulted in the debt owed.” Relying on its own prior ruling on the matter, the Sixth Circuit found that “during the transaction that resulted in the debt owed” was to be read as only applying to the “ ‘initial transaction’ that creates the debt.” Thus, “consumers may give ‘prior express consent’ . . . when they provide a cell phone number to one entity as part of a commercial transaction, which then provides the number to another related entity from which the consumer incurs a debt that is part and parcel of the reason they gave the number in the first place.”

For more information on the Sixth Circuit’s decision, “prior express consent” or the TCPA generally, contact Katherine Olson at (312) 334-3444 or kolson@messerstrickler.com.

FCC Clarifies TCPA: Prior Express Consent May Be Obtained by a Third Party

On March 27, 2014, the Federal Communication Commission (“FCC”) released a Declaratory Ruling in the matter of GroupMe, Inc./Skype Communications S.A.R.L petition to clarify the rules and regulations implementing the Telephone Consumer Protection Act (“TCPA”) of 1991.  This ruling relates to situations in which a consumer may give their express consent to receive calls to an intermediary rather than to the calling party itself.

According to its petition, GroupMe provides a free group text messaging service for groups of up to 50 members.  Those creating groups must be registered member with GroupMe, and in so doing agree to GroupMe’sTerms of Service (TOS).  The TOS contains a representation that all members being added to the group have consented to receiving text messages.

Considering the consumer protection policies and goals underlying the TCPA the FCC ruled: “We clarify that text-based social networks may send administrative texts confirming consumers’ interest in joining such groups without violating the TCPA because, when consumers give express consent to participate in the group, they are the types of expected and desired communications TCPA was not designed to prohibit, even when that consent is conveyed to the text-based social network by an intermediary (emphasis added).”  The FCC added that consumer’s prior express consent may be obtained through and conveyed by an intermediary, such as the group organizer using GroupMe’s service.

The FCC’s ruling is helpful clarification that prior express consent as required under the TCPA may in certain circumstances be obtained through a third party.  To learn more about the TCPA and its restrictions on debt collection industry, you may contact Joseph Messer at jmesser@messerstrickler.com or at (312) 334-3440.