Menu

Eleventh Circuit Reverses Mais

Consumer Finance   |   Telecommunications   |   Telephone Consumer Protection Act   |   December 22, 2014
Download   
Share Page

In what promises to have significant implications for litigation under the Telephone Consumer Protection Act (TCPA), the Eleventh Circuit Court of Appeals reversed the decision issued by Judge Robert Scola of the Southern District of Florida in Mais v. Gulf Coast Collection.

The Eleventh Circuit ruled that Judge Scola exceeded his jurisdiction—as a district court judge—to “enjoin, set aside, annul, or suspend” an FCC Order, based on the Hobbs Act, which provides that any “proceeding to enjoin, set aside, annul, or suspend any order of the Commission” must be brought under the Hobbs Act’s procedures.

Judge Scola acknowledged that his “Black’s Law Dictionary” reading of the term “express consent” was explicitly contrary to the FCC’s definition of the term, but found that, as a district court judge, he was not bound to follow the Hobbs Act. He also ruled that a patient who provides his cell phone number in connection with medical treatment is not consenting to be called at that number for TCPA purposes.

The Eleventh Circuit’s decision clarifies the meaning of express consent: releasing a number to a creditor in connection with a transaction that results in a debt, even if the number is provided in connection with medical treatment, constitutes consent for the debtor to call about the debt.

The decision will have far-reaching consequences, as other FCC orders are often at issue in TCPA cases. Additional significant aspects of the opinion include:

  • The prior express consent language in the 2008 FCC Ruling indicates that it applies to “a wide range of creditors and collectors, including those pursuing medical debts.” Mais involved a phone number provided on a hospital admission form, and in the context of medical debt collection, the term “health information” included use of plaintiff’s cell phone number for billing purposes.
  • The court also held that an intermediary may provide consent to call a cell phone. So, it was acceptable for the hospital that was given the number to provide it to a debt collection company.


©2020 Carlton Fields, P.A. Carlton Fields practices law in California through Carlton Fields, LLP. Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact Us form via the link below. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.

Subscribe to Publications

Disclaimer

The information on this website is presented as a service for our clients and Internet users and is not intended to be legal advice, nor should you consider it as such. Although we welcome your inquiries, please keep in mind that merely contacting us will not establish an attorney-client relationship between us. Consequently, you should not convey any confidential information to us until a formal attorney-client relationship has been established. Please remember that electronic correspondence on the internet is not secure and that you should not include sensitive or confidential information in messages. With that in mind, we look forward to hearing from you.