To Call or Not To Call: Another Court Sides With FCC on “Prior Consent” under TCPA

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July 3, 2014 by Lisa Brammer

Last week on June 25, 2014. The Honorable Michael Anello, a U.S. District Court judge in the Southern District of California, dismissed a case brought by a consumer claiming that an autodialed debt collection call to her cell phone violated the Telephone Consumer Protection Act (TCPA).

In the case of Hudson v. Sharp Healthcare, the court agreed with the FCC position (in the January 2008 ruling) that providing a cell phone number to a business/creditor is prior express consent under the TCPA. Judge Michael Anello granted the defendant’s motion for summary judgment and instructed the court clerk to enter judgment in favor of the defendant and terminate the case.

Hudson and her minor child were hospitalized at Sharp Healthcare in September of 2012. During the hospital admission process Hudson provided her cell phone number as the only point of contact to the health care provider. When Hudson did not pay the amount owed for services rendered, Sharp Healthcare used an automated dialer to call her cell phone in an effort to collect on the past-due debt.

Hudson then filed a suit against Sharp Healthcare and sought class action status for her suit. She claimed that Sharp Healthcare had violated the TCPA by utilizing an automated telephone dialing system to call her cell phone when she had not given prior express consent during the admission process nor had she during her hospital stay.

Hudson’s arguments in the case relied, in part, on the 2013 controversial decision in Mais v. Gulf Coast Collection Bureau Inc. Hudson asked the court to agree with Judge Robert Scola, Jr’s (U.S. District Court for the Southern District of Florida.) decision and rule that the act of providing a cell phone number to a creditor does not constitute prior express consent.

Judge Michael Anello refused to accept that decision and addressed it directly by saying, “Mais is viewed as an outlier decision and is not otherwise binding in this Count…In line with other courts in this district; this Court treats the FCC Orders as binding.”

The decision in Hudson v. Sharp Healthcare is another instance where a district court rejected the determination of the Mais court—which is the only federal district court to determine that they have the authority to review FCC rulings and disregard the FCC’s position. The Hudson decision follows the reasoning behind the majority of cases ruling on the TCPA’s prior express consent provision. These cases normally agree that when a consumer provides a creditor with their cell phone number they are expressly consenting to receive calls and/or text messages at that number.

Founded in 1950, United Credit Service, Inc. is a full service revenue cycle management and debt collection agency in Wisconsin providing highly effective, customized one on one management and recovery solutions for our business partners. We offer pre-service collection solutions as well as traditional back-end collections. Visit our website at http://www.unitedcreditservice.com or call 877-723-2902.