Eleventh Circuit Allows Indirect Consent Under The TCPA

In Mais v. Gulf Coast Collection Bureau, decided on September 29, 2014, the Eleventh Circuit of Appeals ruled that a debt collector’s auto-dialed calls did not violate the Telephone Consumer Protection Act (TCPA) even though the consent for the call was given indirectly to the debt collection company that made the call. The ruling reversed a May 2013 decision issued in the Middle District of Florida, which had found the debt collection company liable for fifteen auto-dialed calls that attempted to collect a $49 debt.

Because there were three degrees of separation between the caller and the consent, the Eleventh Circuit decision significantly expands the boundaries of what constitutes prior express consent under the TCPA. Most published decisions approve consent to make auto-dialed calls or send text messages only when the consent comes directly from the called party and is given to the caller.

In this case, the plaintiff was admitted to the hospital and it was his wife who filled out the paperwork and provided his cell phone number to the hospital. Thus, the plaintiff did not personally provide any consent at all. While in the hospital, the plaintiff received radiology services from a separate company and was billed $49, which he never paid. The radiology company got the plaintiff’s cell phone number from the hospital and provided it to a debt collector, who placed 15 auto-dialed calls. This added two more degrees of separation to the consent, which can be summarized as follows: plaintiff to wife to hospital to radiology company to debt collector. A lawsuit followed and the district court initially awarded the plaintiff $7,500, finding that the TCPA was violated.

In the appeal, the Eleventh Circuit reversed, finding that the cell phone number did not have to be provided directly to the debt collector placing the calls. The facts of this case, with the three degrees of separation between the caller and the called party, make this holding a great departure from prior TCPA rulings. FCC regulations interpreting the TCPA require the consent to come from “the person called” and that the consent be given to “the person or entity on whose behalf a telephone call or message is initiated.” In this case, neither side of the equation was met: the wife, not the person called, provided the cell phone number, and she gave it to the hospital, who did not stand to benefit from the call in question. 

Takeaway:  While it remains to be seen if this case will be used as precedent outside the debt-collection context, the Eleventh Circuit’s ruling seems to be part of an emerging trend that, despite FCC regulations, TCPA consent can be indirectly obtained from persons other than the called party.  Besides this latest decision, 2014 has seen two FCC orders that allowed some form of third-party consent to pass TCPA muster: the GroupMe ruling allowed social network groups to send text messages inviting new members based on consent given by an intermediary, such as the invitee’s friend or the group organizer; and the Cargo Airline Association ruling allowed auto-dialed calls and text messages to be sent to package recipients based on consent given by the package sender.

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