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If you are autodialing cell numbers, you should be aware of a recent decision that could affect how courts are interpreting the “prior express consent” provision of the Telephone Consumer Protection Act (TCPA).

Pursuant to the TCPA, it is permissible to place autodialed or prerecorded message calls to a cell if “made with the prior express consent of the called party.”  In a 2008 Federal Communications Commission Ruling (FCC Ruling), the FCC ruled that “prior express consent” exists when a consumer provides a cell number to a creditor (e.g., on a credit application) in connection with the transaction that resulted in the debt. 

In Mais v. Gulf Coast Collection Bureau, Inc., a federal district court in Florida ruled that a collector did not have “prior express consent” to call a number provided by the debtor’s wife when the debtor was admitted to the hospital.

In Mais, the debtor visited the hospital’s emergency room but was treated by a hospital-based provider.  The debtor’s wife provided a cell number to the hospital and signed a consent form where she agreed that the hospital could disclose the debtor’s information to collect.  The collector believed that it had “prior express consent” because the number was provided to the hospital in connection with the medical services. 

The Court ignored the FCC Ruling and determined that the ruling amended the TCPA to include “implied consent,” an exception that was not written into the TCPA.  The Court noted that the hospital’s admission paperwork did not provide express permission to call the cell using an autodialer or artificial prerecorded message for payment purposes. 

The Court also noted that even if the FCC Ruling was applicable, the ruling does not apply to medical transactions because it is limited to situations when a cell is provided “as part of a [consumer] credit application.” 

The Court further noted that there was no consent because the wife provided the number to the hospital instead of the creditor, i.e., the hospital-based provider.  The Court pointed out that the FCC Ruling did not provide consent for a creditor’s agents and affiliates to call a number provided.
Does Mais open the door for other courts to challenge the FCC’s dialer rulings?  Will courts begin to rule that the FCC exceeded its rule-making authority regarding autodialing cell numbers?
There is uncertainty regarding how the Mais decision could affect the FCC Ruling because it is not binding precedent that other courts have to follow. 

As a general rule, you may place autodialer calls to cell numbers provided to a creditor.  Be mindful of the gray areas in the law that may be challenged in the future. 

We will keep you posted on the issue.  Please call us with any questions.