Sixth Circuit Affirms Dismissal Of TCPA Claims Against Healthcare Providers’ Debt Collector
The Sixth Circuit recently affirmed the entry of summary judgment against plaintiffs who had not given their phone numbers to the debt collector that had called them or to the creditor to whom they owed money. See Baisden v. Credit Adjustments, Inc., No. 15-3411, 2016 U.S. App. LEXIS 2465 (6th Cir. Feb. 12, 2016). In doing so, it agreed with the FCC and the Eleventh Circuit that “prior express consent” can be “obtained and conveyed via intermediaries,” in this case the hospital to which the plaintiffs had voluntarily given their numbers.
The plaintiffs were former patients at a hospital (Mount Carmel Hospital) who owed debts that were transferred from an affiliated anesthesiology practice (Consultant Anesthesiologists) to a debt collector (Credit Adjustments, Inc.). Both of the plaintiffs had signed admission forms that permitted the hospital to release their “health information” to third parties for purposes of “billing and payment” or “billing and collecting monies due,” among other things. Id. at *2-6. After the plaintiffs received calls from the debt collector regarding their debts, they filed a putative class action against the debt collector, the anesthesiology practice, and the hospital.
The debt collector moved for summary judgment. Although it did not dispute that it had both (a) called the plaintiffs’ numbers and (b) used an ATDS to do so, it argued that it had not violated the TCPA because the plaintiffs had provided their “prior express consent” to such calls by virtue of providing their numbers on their admission forms. Id. at *1. The plaintiffs responded by arguing that they had provided their numbers to the hospital, not to the anesthesiology practice or the debt collector, and the scope of consent did not extend from the one to the others. Id. at *6. The trial court sided with the debt collector and entered judgment in its favor.
The Sixth Circuit affirmed. It began by summarizing the FCC’s prior statements on the issue, which have consistently concluded that consent can be obtained and conveyed by intermediaries. See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8769 (1992) (“[P]ersons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”); In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 565 (2008) (stating that debt collectors’ calls on behalf of creditors “are treated as if the creditor itself placed the call.”); In the Matter of GroupMe, Inc./Skype Comm. S.A.R.L Petition for Expedited Declaratory Ruling, 29 FCC Rcd. 3442, 3444, 3446 (2014) (stating that “the TCPA does not prohibit a caller … from obtaining the consumer’s prior express consent through an intermediary” because “consent to be called at a number in conjunction with a transaction extends to a wide range of calls ‘regarding’ that transaction, even in at least some cases where the calls were made by a third party.”); In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7990 (2015) (reiterating that callers may “obtain a consumer’s prior express consent through an intermediary”).
The court then held that “consent can be conveyed by another party,” as the TCPA makes no distinction between giving one’s number to a creditor and “taking steps to make that number available through other methods, like consenting to disclose that number to other entities for certain purposes.” Id. at *18-19 (emphasis in original). It explained that “consumers may give ‘prior express consent’ under the FCC’s interpretations of the TCPA 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. More specifically, the provision of a cell phone number to a hospital that then provides that cell phone number to an affiliated physicians’ group that provided medical services to a consumer arising out of the same occurrence can constitute ‘prior express consent’ under the TCPA.” Id. (citing Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1122-23 (11th Cir. 2014)).
The court then found that the plaintiffs had provided “prior express consent” in this case because their phone numbers fell within the definition of the “health information” that they had agreed could be given to third parties for purposes of collecting debts. Id. at *20-24. Although it acknowledged that telephone numbers may not intuitively fall within the definition of “health” information, it found that a contrary reading of the admission forms would be “nonsensical” and would render much of the consent language “inoperative.” Id. Additionally, the court rejected the plaintiffs’ narrow interpretation of the FCC’s 2008 TCPA Ruling, In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 559 (2008), which stated that a number must be “provided during the transaction that resulted in the debt owed.” Id. at *28. Specifically, the court declined to read that language as applying only if the plaintiffs’ numbers had been provided in connection with the specific anesthesiology services that resulted in their debts. Id. at *15-16.
The decision is notable because it follows the Eleventh Circuit’s Mais decision in rejecting plaintiffs’ hypertechnical readings of not only the statute’s consent requirement but also the plaintiffs’ consent documents.