Court Disregards FCC Interpretation Of TCPA

In Mais v. Gulf Coast Collection Bureau, decided on May 8, 2013, in the Southern District of Florida, the court awarded the plaintiff $7500 for fifteen calls to his cell phone made by a debt collector. However, the court dismissed the companies that hired the debt collector. The ruling was significant because the court declined to follow FCC guidelines interpreting the Telephone Consumer Protection Act (TCPA). Aspects of the decision were both pro-plaintiff and pro-defendant.

The plaintiff was no doubt happy that his summary judgment motion was granted on the fifteen calls. The debt in question arose from a trip to the hospital, and the defendants argued that when the plaintiff's wife provided his cell phone number to the hospital as a contact number, that constituted express consent to be called by an auto-dialer. In defendant's favor was a 2008 FCC ruling saying that provision of a cell phone number to a creditor should qualify as prior consent to be called. The court did not defer to the FCC ruling because, according to the court, the TCPA requires express consent, and the FCC ruling allowed implied consent. The court held that the FCC had no authority to broaden express consent to include implied consent.

Defense attorneys can take comfort in a different part of the decision. Two of the defendants, the parties that provided the medical service and which hired the debt collector to collect their fees from the plaintiff, were let out of the case on their summary judgment motion. Since they hired the debt collector and did not make the illegal calls themselves, the court declined to hold them vicariously liable for the calls of the debt collector. This ruling also conflicted with the FCC's 2008 interpretation of the TCPA, but the court set aside the FCC's interpretation because it was at odds with the literal language Congress used when drafting the TCPA.

The precedential effect of the ruling is still to be determined because, on May 9, 2013, just one day after the decision in Mais was issued, the FCC reaffirmed the very principle that the Mais ruling shot down: the FCC reiterated that parties could be liable for TCPA violations caused by their agents even if the parties themselves did not actually make the call or send the unsolicited text.

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