Florida Judge Rejects Long-Standing Definition of Express Consent Under Telephone Consumer Protection Act

On May 8, 2013, Florida Judge Robert Scola, Jr. rejected the Federal Communications Commission’s long-standing definition of express consent. In Mais v. Gulf Coast Collection Bureau, plaintiff Mark Mais went to the emergency room at the Westside Regional Hospital in Broward County, Florida for treatment. His wife completed the admission paperwork and provided his cell phone number on the form. When Mais did not pay a Florida United Radiology bill of $49.03 for emergency room services, the debt was referred to Gulf Coast Collection. The collection agency made between 15 and 30 autodialed calls to Mais' cell phone

Mais sued under the Telephone Consumer Protection Act, which prohibits autodialed calls made to cell phones without the called party's express consent. The court granted Mais summary judgment, finding that Gulf Coast lacked prior express consent to call Mais using an autodialer. It stated that the FCC's 2008 ruling that 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 was inconsistent with the TCPA's plain language. The court applied the dictionary definitions of express and implied to reach its conclusion. It stated:

The FCC was not in fact talking about "express consent," but is instead engraphing into the statute an additional exception for "implied consent" — one that Congress did not include. Although it may be reasonable to presume that an individual, in providing his 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." Congress could have written the statute that way but it didn't. And because it didn't, the FCC's contrary construction is not entitled to deference.

The court further explained that the cases where mere provision of a telephone number was found to be express consent arose in the debtor creditor context. It made a distinction for the situation before it where the number was provided in a hospital emergency room. However, that distinction was not critical to the ruling.

This case questions not only the 2008 TCPA Ruling but also the FCC's original 1992 Report and Order, which provided, "telephone subscribers who knowingly release their phone numbers to a business will be deemed to have given their invitation or consent to the called at the number which they have given, absent instruction to the contrary." This case, along with Thrasher-Lyon v. CCS Commercial, LLC, which is currently pending in the Seventh Circuit Court of Appeals, questions not only the FCC orders but 20 years of jurisprudence around this important issue.

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Michael C. Lueder
Milwaukee, Wisconsin
414.297.5643
mlueder@foley.com