Courts that have confronted the application of the “prior express consent” requirement of the Telephone Consumer Protection Act, see 47 U.S.C. § 227 – a.k.a., the TCPA – have in the main taken their cues from and adhered to the policy set by the Federal Communications Commission (“FCC”) – the federal agency charged with implementing the statute. Recently, however, two federal district courts departed from the FCC’s guidance and injected new uncertainty into TCPA enforcement and confusion over the process for review of TCPA interpretations. In Mais v. Gulf Coast Collection Bureau, Inc., and Zyburo v. NCSPlus, Inc., the Southern District of Florida and the Southern District of New York respectively overrode jurisdictional challenges to adopt statutory constructions in conflict with settled FCC policy that the voluntary provision of a telephone number constituted sufficient prior express consent under the TCPA for contacting consumers through prerecorded calls. These courts declined to follow a 2008 declaratory ruling from the FCC holding that “prior express consent” is manifest where a consumer provided a telephone number as part of a transaction. Both decisions pose substantial challenges to the FCC’s authority and ability to coordinate national communications policy under the statute that it is charged with administering with the predictable result of creating a cloud of uncertainty for those who must comply with the TCPA across multiple jurisdictions.
One of these decisions has now been reversed, while the other awaits review soon. Last week, a unanimous panel of the Eleventh Circuit reversed the Southern District of Florida’s ruling. Importantly, the Eleventh Circuit rejected both of the premises on which the district court based its ruling. First, the Eleventh Circuit concluded that the Hobbs Act granted the federal Courts of Appeal the exclusive power to review FCC Orders, therefore precluding review by district courts. Mais, 2014 U.S. App. LEXIS at *2. This ruling represented a victory for the FCC, which filed a brief amicus curiae arguing that the district court did not have jurisdiction to review the agency’s 2008 ruling. Second, the Eleventh Circuit rejected the district court’s holding that the 2008 ruling did not apply to medical debt calls, finding the FCC did not draw a “meaningful distinction” between retail purchasers and medical patients filling out admission forms. Id. at *27.
Importantly for the business community, the Eleventh Circuit’s decision is consistent with the view that the “indirect” provision of a telephone number can satisfy the prior express consent requirement. In Mais, the plaintiff’s wife provided his telephone number on hospital admission forms. The Eleventh Circuit explained that this arrangement satisfied the prior express consent requirement and that there was “no sign that the FCC thought a cell phone number could be ‘provided to the creditor’ only through direct delivery.” Id. at *29. This is in line with recent FCC decisions holding that obtaining consent through intermediaries or agents does not violate the prior express consent requirements.
The Eleventh Circuit’s ruling casts into doubt the validity of outlier rulings like Zyburo that deviate from the FCC’s constructions of the TCPA. Defendants in that case have appealed the district court’s class-certification decision to the Second Circuit. Industry participants and TCPA litigants will be watching with interest to see whether the Second Circuit follows the path set by the Eleventh Circuit in Mais and rules that the district court cannot overturn FCC decisions with novel statutory constructions that undermine the agency’s power to coordinate policy and provide for uniformity in application of the TCPA.
If you have any questions about this matter, or TCPA compliance in general, please contact Sheppard Mullin’s Communications attorneys.