May 11, 2013

Express Consent under the TCPA… Is it Safe?

In the 1976 movie The Marathon Man, Sir Laurence Olivier is torturing Dustin Hoffman in the attempt to discover if it is safe for Olivier to retrieve his cache of ill-gotten diamonds. Olivier believes Hoffman knows the location of the diamonds and whether the site is being watched. So as he drills into his teeth, Olivier continually asks Hoffman, “Is it safe?” At the time, Hoffman does not know.

In context, two, recent federal district court decisions show the evolving and yet contradictory landscape of TCPA compliance on the issue of “express consent” under the Telephone Consumer Protection Act, 47 U.S.C. § 227. As such, with regard to the safe harbor, “express consent,” defense, third party debt collectors are left to wonder, “is it safe?”

The TCPA prohibits making a call to a cellular telephone using an automatic telephone dialing system (ATDS) without the prior express consent of the called party. A debt collection company sued for violating the TCPA (either individually or in a class context) can defeat these TCPA claims by demonstrating the debtor gave “express consent” to be called on his/her cellular telephone.

The Federal Communications Commission has issued two relevant orders regarding consent to call a cell phone. In 1992, the FCC issued an order which stated that cellular carriers do not need consent from “their cellular subscribers prior to initiating autodialer … calls for which the cellular subscriber is not charged.” Thereafter, in 2008, the FCC expanded the issue of “consent” by stating that if a party provides a cell phone number to a creditor, for example, as part of a credit application, they are deemed to have provided express consent to be autodialed by the creditor at that cell number. The latter FCC ruling also states that calls “placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.”

These “express consent” provisions were tested in the case of Leckler v. Cash Call. The Leckler court held the FCC’s declaratory ruling regarding express consent was “manifestly contrary to the statute and unreasonable.” Thanks in great part to excellent work done by our colleague, David Kaminski, the Court vacated this order in November of 2008. The FCC rulings remained intact and could be relied upon by courts when considering the issue of consent.

Fast forward to May 8, 2013, when a federal district court in Florida rendered its opinion in Mais v. Gulf Coast Collection Bureau, Inc., The Mais court held it had jurisdiction to review the FCC’s 2008 Ruling. The court then determined that the provision in the 2008 FCC Ruling stating “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent … to be contacted at that number….” constitutes implied consent not express consent, and impermissibly amended the TCPA to provide an exception that Congress did not write in the TCPA. The court stated it could ignore the FCC’s ruling. The court continued on its path of holding Gold Coast liable when it held that even if applicable, the FCC ruling did not apply to medical debt, that the ruling only pertained to consumer retail credit transactions, and that even if applicable, a defendant had the burden of proof to prove “express consent.” The Mais court completed its autopsy on Gold Coast by holding that the FCC’s 2008 ruling, even if applicable, only applied to the creditor and in attempting to expand protection to the agent, the FCC impermissibly added a vicarious liability provision to the TCPA when Congress did not. [Since the underlying creditors in the Mais case did not make the alleged offensive calls, their motion for summary judgment was granted.] Mr. Kaminski broke down the Mais decision in a very thorough article on insideARM.com.

Less than three weeks after the Mais decision, a federal district court in Missouri issued its opinion in O’Connor v. Diversified Consultants, Inc. In the O’Connor case, the plaintiff sought certification of a nationwide class of persons who received on their cellular phone any telephone call from Diversified wherein Diversified utilized an ATDS and where the consumer failed to provide express consent. However, the O’Connor court gave deference to the FCC’s rulings and specifically held, “Diversified argues that in collecting the debt from these cellular customers it stands in the shoes of U.S. Cellular and is entitled to the shelter that the FCC has provided to cellular companies. I agree with Diversified’s position. I find that a debt collector for a cellular company may invoke the shelter given to the cellular company for calls to its subscribers.” The O’Connor court then went one step further when it held, “Because we find that autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the ‘prior express consent’ of the called party, we clarify that such calls are permissible. [emphasis added] We conclude 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.”

Because of this language, the argument can be made that the FCC’s rulings regarding express consent and the basis underlying the O’Connor decision are applicable to the collection of all consumer debts, and not just cellular telephone debt.

In addition, there are various ways a debtor can give “express consent.” Express consent can be verbal (Greene v. DirectTV, Inc.: orally providing cell number to credit bureau is prior express consent to potential creditor who receives fraud alert from credit bureau). Express consent can be written (Moore v. Firstsource Advantage: consent is proper if the wireless number was provided by the subscriber in connection with the existing debt). Consent can be provided by a spouse (Gutierrez v. Barclays Group).

With regard to the issue of “burden of proof” turned on its head by the Mais court, especially on class certification issues, a debt collector can rely not only on the O’Connor decision, but on the case of Forman v. Data Transfer, Inc. Although a fax case and not a cell phone case, in Forman, the plaintiff was seeking to certify a class of plaintiffs asserting claims under the TCPA. The court in Forman noted that the TCPA prohibits a person from sending an “unsolicited advertisement” to a fax machine, and that the TCPA defines an “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.” (emphasis added). On that basis, the court concluded that, by definition, “[T]he essential question of fact that each potential plaintiff must prove is whether a specific transmission to its [facsimile] machine was without express invitation or permission on its part.” (emphasis added)

Based on the requirement that each plaintiff must prove no express invitation or permission to establish a violation of the TCPA, Forman held that the individual issues of express invitation or permission predominated over common issues; thus, the court denied certifying a class alleging violations of the TCPA. The Forman court explained that “[p]laintiff’s proposed `common’ questions[, including whether or not express invitation or permission was given,] are inherently individualized, requiring inquiry into the particular circumstances of each transmission.”The court further explained that the “gravamen of [a] plaintiff’s complaint is not a common course of conduct by [a] defendant, but rather a series of individual transmissions under individual circumstances.”

In “The Marathon Man,” Olivier discovered that indeed, “it was not safe.” For the sake of the debt collection industry, the preponderance of the caselaw and FCC ruling interpretation give a roadmap to a safe harbor and courts should be encouraged not to stray from that course.

Steven R. Dunn graduated from the University of Houston Law Center in 1984 and has been a licensed attorney based in Dallas, Texas since that time. His practice primarily consists of representing third party debt collectors in all Texas state courts and federal courts not only in Texas, but also throughout the United States. His areas of expertise includes complex class related litigation, Fair Debt Collection Practices defense, Telephone Consumer Protection Act defense, premises liability, banking and U.C.C. law, business litigation, and employment law. His experience also includes overseeing compliance issues and corporate matters.

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