Among other things, the TCPA prohibits making autodialed or artificial/prerecorded voice calls to a cell phone without prior express consent, and provides for a minimum of $500 statutory damages per call made in violation of the statute. 47 U.S.C. § 227(b). Thus, the existence of “prior express consent” to make such calls is an affirmative defense to a claim under the TCPA. The FCC—the regulatory body charged with adopting rules implementing the TCPA—issued a declaratory ruling in 2008 holding that, in the debtor/creditor context, “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C.R. 559, 564 (2008) (“2008 FCC Order”). Based on the 2008 FCC Order, the defendants in Mais moved for summary judgment, asserting that they had the requisite “prior express consent” for the autodialed collection calls because the plaintiff’s wife provided his cell phone number to the hospital on his behalf.
The court found that the 2008 FCC Order's holding that “prior express consent” to receive robocalls exists where a consumer simply provides his cell phone number to a creditor was not entitled to deference, finding that the FCC had incorrectly engrafted a kind of “implied consent” into the TCPA’s requirement that the consent be “express”:
Although it may be reasonable to presume that an individual, in providing a cell phone number on a credit application, consents to be called at that number by the creditor, such consent is “implied” through the individual’s conduct – that is, his act of writing down his number on the application. He has not directly, clearly, and unmistakably stated that the creditor may call him, and so he has not given “express consent.” The FCC’s construction is inconsistent with the statute’s plain language because it impermissibly amends the TCPA to provide an exception for “prior express or implied consent.”
The Mais decision was not entirely favorable to consumers, however. The court also rejected the 2008 FCC Order’s holding that “[c]alls placed by a third party collector on behalf of [a] creditor are treated as if the creditor itself placed the call." Id. at 12 (quoting In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C.R. 559, 565 (2008)). Referring to the absence of specific "on behalf of" language in Section 227(b)(1)(A) compared to the relief provided in Section 227(c)(5) for "[a] person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under [Section 227(c)]," the court held that Congress only intended liability to exist under Section 227(b)(1)(A) for those who directly "make" the prohibited calls. Id. at 13. As such, the court found that the healthcare provider and its holding company could not be held liable for the illegal calls made by the third-party debt collector on their behalf. Id. The court further hedged this result, determining that even if traditional tort rules of vicarious liability were to apply, these particular defendants lacked sufficient control over the third-party debt collector to permit them to be held vicariously liable for the calls. Id. at 14.
The Mais summary judgment order was issued the day before the FCC’s recent May 9, 2013 declaratory ruling, which affirmed—based on common law principles of agency—that a party can be held liable for autodialed or prerecorded voice calls to cell phones made by others on its behalf. It will be interesting to see how this recent FCC ruling will be treated by the courts.
Read the Mais summary judgment order here.