In Baisden v. Credit Adjustments, Inc., No. 15-3411 (6th Cir. Feb. 12, 2016), the Sixth Circuit affirmed summary judgment in favor of Credit Adjustments, Inc. in a putative class action alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227. The plaintiffs, Zachary Baisden and Brenda Sissoko, alleged that Credit Adjustments violated the TCPA when it made calls to their cellular phones using an automatic telephone dialing system (ATDS) and using a prerecorded voice in an attempt to collect debts they owed to a third-party. Credit Adjustments did not deny that it used an ATDS and prerecorded voices on the calls, but contended that they had the plaintiffs’ consent to make the calls. Before determining class certification, Credit Adjustments moved for summary judgment, which the district court entered in its favor. On appeal, the Sixth Circuit affirmed.
The plaintiffs had received medical care from Mount Carmel Hospital in Columbus, Ohio. As part of their intake process at the hospital, the plaintiffs voluntarily provided their telephone numbers and were informed those numbers could be contacted for any reason, including debt collection. While at the hospital, a third-party in-hospital medical provider, Consultant Anesthesiologists, provided anesthesiology services to both plaintiffs. After the plaintiffs did not pay their bills, Consultant Anesthesiologists transferred the plaintiffs’ delinquent accounts to Credit Adjustments, which then called the plaintiffs’ cell phones.
In 1992, the Federal Communications Commission (“FCC”) held that a person gives “prior express consent” by knowingly releasing his or her telephone number to a person or entity for use in normal business communications. The Sixth Circuit also recognized that, in 2008, the FCC similarly held that calls placed by a debt collector are treated as if the creditor had placed the call itself; i.e., that if a consumer provided the creditor with prior express consent to make calls, such consent flowed to the debt collector who calls on behalf of the creditor. The plaintiffs, however, argued that while they provided prior express consent to the hospital, they did not provide prior express consent to Credit Anesthesiologists, the actual creditor.
Noting that the “context of the consent is critical,” the Sixth Circuit rejected the plaintiffs’ overly restrictive reading of prior express consent. In making this determination, the Sixth Circuit relied upon the FCC’s 2014 GroupMe Declaratory Ruling, in which the FCC recognized that consent could extend to a wide range of calls “regarding” the particular transaction in which consent was originally given. The Sixth Circuit held consent was not necessarily limited solely to instances where a consumer directly provided his or her telephone number to the creditor, but that consent could be given through an intermediary.
The Sixth Circuit concluded that “prior express consent” was satisfied when a consumer voluntarily provides a telephone number to one entity (such as a hospital) “as part of a commercial transaction,” which then provides it to another entity (such as Consultant Anesthesiologists) “from which the consumer incurs a debt that is part of parcel of the reason they gave the [telephone] number in the first place.” In making this determination, the Sixth Circuit joins the Eleventh Circuit which reached an identical conclusion under nearly identical facts in Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir. 2014).
The key takeaway from the Sixth Circuit’s decision is that consent is not necessarily limited solely to the entity to whom a telephone number is provided. Rather, the context of the consent is critical and providing prior express consent to one entity may extend to another entity, depending on the context and particular facts of the commercial transaction.
