The TCPA's "Prior Express Consent" Exception is Broader Than Debtors May Think, Says the Eleventh Ci

October 16, 2014 by Isaac J. Colunga, Partner

The TCPA's "Prior Express Consent" Exception is Broader Than Debtors May Think, Says the Eleventh Circuit

Last month creditors and debt collectors scored a notable win in Florida, after the Eleventh Circuit held that “prior express consent” can be established in numerous debt collection-related contexts – not just in the consumer credit context – when a debtor provides its cell phone number to a creditor.  In Mais v. Gulf Coast Collection Bureau, Inc., -- F.3d -- , 2014 WL 4802457 (11th Cir. Sept. 29, 2014) the plaintiff’s wife listed his cell phone number on a hospital admissions form and agreed to the hospital’s privacy policies, which allowed the hospital to release Mais’s contact information for billing purposes.  Mais ultimately incurred a medical debt.  When his account remained unpaid, the billing company turned over his account to the defendant/debt collector, Gulf Coast, for collection.  Gulf Coast called Mais’s cell phone 15 to 20 times using an automated telephone dialing system.  In response, Mais sued Gulf Coast for violating the TCPA, which prohibits autodialed or prerecorded calls to cell phones without the recipient’s prior express consent to receive the call.
Gulf Coast moved for summary judgment at the outset, arguing that because Mais’s wife provided his cell phone number on the hospital’s admission forms, Mais consented to receive debt collection calls.  Gulf Coast relied on the FCC’s 2008 Order, which concluded that “prior express consent” can be established when a debtor provides its cell phone number to a creditor during a transaction that resulted in the debt owed.  In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 564 (2008).  Mais argued that the FCC’s 2008 Order did not apply to medical debts, but was instead limited to the consumer credit context.  The Eleventh Circuit shot down the argument and clarified the reach of the FCC’s 2008 Order.
The Eleventh Circuit held that “prior express consent” under the TCPA applied beyond the consumer credit context, as “the FCC’s general language sends a strong message that it meant to reach a wide range of creditors and collectors, including those pursuing medical debts.”  There was no carve out in the Order that limited its scope to a particular context, and thus Gulf Coast could rely on the exception when attempting to collect a medical debt.    
The Eleventh also found that “prior express consent” was not limited to circumstances in which the consumer provides its cell phone number directly to the creditor.  It was perfectly fine, in fact, if the creditor obtained the consumer’s cell phone number through an intermediary.  The Eleventh Circuit applied another recent ruling by the FCC in which it concluded “that the TCPA does not prohibit a call from obtaining consent through an intermediary.”  In re GroupMe, Inc./Skype Commc’ns Petition, 299 FCC Rcd. 3442, 3447 (2014).  This was the normal course in numerous business transactions, and neither the FCC nor the Eleventh Circuit sought to disturb the fact that in many instances consent can be gained and conveyed through intermediaries. 
“Prior express consent” is a hot issue at the moment, as there are few other defenses that companies have when defending TCPA class actions.  The Eleventh Circuit’s ruling aligns itself with other courts that have expanded the scope of consent under the TCPA, and clarifies the defense for creditors and debt collectors that rely on the FCC’s 2008 Order.  It’s a welcome opinion.          
Isaac J. Colunga has extensive experience in the TCPA and its corresponding regulations.  He actively defends companies against class actions in federal courts nationwide stemming from fax advertisements, autodialed calls and text messages to cell phones, and calls to registrants on the national Do Not Call list.  He can be reached at 312-726-1567 or        

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