On September 29, the Eleventh Circuit issued its highly anticipated decision in Mais v. Gulf Coast Collection Bureau, Inc., overturning the district court’s prior holding and providing defense-favorable law on prior express consent. The decision was in response to an unprecedented May 2013 ruling by the U.S. District Court for the Southern District of Florida, wherein the court determined that it could circumvent the authority of the FCC to hold that a 2008 FCC ruling on prior express consent was inconsistent with the language of the TCPA. The May 2013 decision has been touted by plaintiffs’ attorneys as narrowing the consent defense and making it inapplicable outside of the consumer collection context. But the tides have turned. The Eleventh Circuit’s decision reverses the District Court and holds that: (1) the district court exceeded its jurisdiction by declaring that a 2008 FCC ruling was inconsistent with the TCPA; (2) the 2008 FCC Ruling regarding prior express consent applies to medical creditors, in addition to consumer debt collectors; (3) consent may be obtained through an intermediary; and (4) the term “health information” may include consent to call a cell phone number.
Pertinent Facts: Mark Mais sought hospital treatment. On behalf of her husband, Mark’s wife, Laura, completed and signed various admission documents, including providing Mark’s cell phone number to the admitting nurse. Laura acknowledged receiving a copy of the hospital’s Notice of Privacy Practices, which expressly stated that the hospital or other health professionals may “release [Plaintiff’s] healthcare information for purposes of treatment, payment or healthcare operations … .” The Notice also stated that the hospital may use or disclose health information “to bill and collect payment from [Plaintiff], [his] insurance company or a third party payor,” including to business associates with which the hospital has contracted to perform services and billing. Mark incurred a hospital debt of $49.03. A hospital-based billing provider electronically received Mark’s telephone number and billed him. When Mark did not pay or dispute the debt, the billing provider forwarded the account to Gulf Coast for collection pursuant to a written agreement between Gulf Coast and the billing provider’s parent company. Gulf Coast called Mark’s cell phone with a predictive dialer 15 to 30 times, and left four messages.
Based on these facts, the Eleventh Circuit reached the following findings:
1. Under the Hobbs Act, federal courts of appeals have exclusive jurisdiction to enjoin, set aside, or determine the validity of FCC orders. The court found this to be true despite the lower court’s determination that Mais did not sue with the primary intent to set aside, annul, or suspend an FCC order. The Eleventh Circuit stated that “[t]he exclusive jurisdiction of the courts of appeals cannot be evaded simply by labeling the proceeding as one other than a proceeding for judicial review.”
2. The broad prior express consent language in the 2008 FCC Ruling indicates that it applies to “a wide range of creditors and collectors, including those pursuing medical debts.” A hospital patient, just like a retail purchaser, should have an expectation of receiving calls when the patient completes admission forms that state that he or she may be contacted about treatment and for payment and billing.
3. Consent to call a cell phone may be provided by an intermediary. Relying in part on the recent FCC ruling on the In re GroupMe, Inc. petition, the court found that “the TCPA does not prohibit a caller from obtaining consent through an intermediary.” The court stated that the appropriate analysis turns on whether the called party granted permission or authorization, not on whether the creditor received the number directly from the cell phone subscriber. On this basis, the court found both that Mark’s wife could give consent on his behalf, and that the plaintiff gave prior consent to be contacted by a debt collector for billing: “[W]ith explicit permission from Mais’s wife, the Hospital passed his cell phone number to … the creditor who provided … services to Mais during his hospitalization.”
4. As used in the Notice of Privacy Practices, the term “health information” included use of plaintiff’s cell phone number for billing purposes. The Notice disclosed that the hospital may use and disclose “health information” about treatment and for billing payment and collection. Additionally, the HIPAA definition of “health information” may include consent to the use of a plaintiff’s cell phone for payment purposes. In short, the Notice, along with the hospital form, were key documents in determining consent and allowing the hospital and its agent to place calls.
Thus, the Eleventh Circuit’s decision limits a plaintiff’s ability to bring a TCPA claim where the plaintiff has provided consent through an intermediary or where a collection call is placed by a related entity. The decision also expressly restricts TCPA actions related to provision of medical services, where the patient (or an intermediary) provided his or her cell phone number and signed documents acknowledging that contact information may be used for collection purposes.