Mark S. Mais v. Gulf Coast Collection Bureau, Inc.

Case: 13-14008 Date Filed: 09/29/2014 Page: 1 of 32
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14008
________________________
D.C. Docket No. 0:11-cv-61936-RNS
MARK S. MAIS,
on behalf of himself and all others similarly situated,
Plaintiff - Appellee,
versus
GULF COAST COLLECTION BUREAU, INC.,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 29, 2014)
Before HULL, MARCUS and HILL, Circuit Judges.
MARCUS, Circuit Judge:
Case: 13-14008 Date Filed: 09/29/2014 Page: 2 of 32
Plaintiff Mark Mais filed a claim in federal district court against a hospital-
based radiology provider and its debt collection agent for making autodialed or
prerecorded calls in violation of the Telephone Consumer Protection Act of 1991
(TCPA), Pub. L. No. 102-243, 105 Stat. 2394 (codified at 47 U.S.C. § 227).
Defendant Gulf Coast Collection Bureau, Inc. (“Gulf Coast”) argued that the calls
fell within a statutory exception for “prior express consent,” as interpreted in a
2008 declaratory ruling from the Federal Communications Commission (the
“FCC” or “Commission”). See In re Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991 (2008 FCC Ruling), 23 FCC Rcd.
559, 564. The district court granted Mais partial summary judgment against Gulf
Coast for alternative reasons: the FCC’s interpretation was inconsistent with the
language of the TCPA and, regardless, the 2008 FCC Ruling did not apply on the
facts of this case.
As we see it, the district court lacked the power to consider in any way the
validity of the 2008 FCC Ruling and also erred in concluding that the FCC’s
interpretation did not control the disposition of the case. In the Hobbs Act, 28
U.S.C. § 2342, Congress unambiguously deprived the federal district courts of
jurisdiction to invalidate FCC orders by giving exclusive power of review to the
courts of appeals. See Self v. Bellsouth Mobility, Inc., 700 F.3d 453, 461 (11th
Cir. 2012). And Mais’s claim falls squarely within the scope of the FCC order,
2
Case: 13-14008 Date Filed: 09/29/2014 Page: 3 of 32
which covers medical debts. The 2008 FCC Ruling “conclude[d] that 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
regarding the debt.” 23 FCC Rcd. at 564. There is no dispute that Mais’s wife
listed his cell phone number on a hospital admissions form and agreed to the
hospital’s privacy practices, which allowed the hospital to release his health
information for billing to the creditor. As a result, the TCPA exception for prior
express consent -- as interpreted in the 2008 FCC Ruling -- entitles Gulf Coast to
judgment as a matter of law. Accordingly, we reverse the district court’s grant of
partial summary judgment to Mais and remand with instructions to enter final
summary judgment for Gulf Coast.
I.
A.
The district court found the following facts to be material and undisputed,
and indeed the parties have not disputed any of them on appeal. See Mais v. Gulf
Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226, 1230-31 & n.1 (S.D. Fla.
2013). Mark Mais sought emergency room treatment at the Westside Regional
Hospital (the “Hospital”) in Broward County, Florida, in 2009. On behalf of her ill
husband, Laura Mais completed and signed admissions documents, which she gave
to a Hospital representative. She provided the admitting nurse with demographic
3
Case: 13-14008 Date Filed: 09/29/2014 Page: 4 of 32
and insurance information, including her husband’s cell phone number. By signing
a Conditions of Admission form, she acknowledged receiving the Hospital’s
Notice of Privacy Practices (the “Notice”) and expressly agreed that “the hospital
and the physicians or other health professionals involved in the inpatient or
outpatient care [may] release [Plaintiff’s] healthcare information for purposes of
treatment, payment or healthcare operations,” including “to any person or entity
liable for payment on the patient’s behalf in order to verify coverage or payment
questions, or for any other purpose related to benefit payment.” Id. at 1230-31
(alterations in original). Moreover, the Notice said the Hospital “may use and
disclose health information about [Plaintiff’s] treatment and services to bill and
collect payment from [Plaintiff], [his] insurance company or a third party payor.”
Id. at 1231 (alterations in original). The Notice stated that “[w]e may also use and
disclose health information . . . to business associates we have contracted with to
perform agreed upon service and billing for it,” including “physician services in
the emergency department and radiology.” In addition, the Notice told patients
that the Hospital “may disclose your health information to our business associate[s]
so that they can perform the job we’ve asked them to do and bill you.” Finally, the
Conditions of Admission form stated that services provided by “[h]ospital-based
physicians,” including “Radiologists,” “are rendered by independent contractors”
and “will be billed for separately by each physician’s billing company.”
4
Case: 13-14008 Date Filed: 09/29/2014 Page: 5 of 32
Mark Mais was admitted to the Hospital, where he received radiology
services from Florida United Radiology, L.C. (“Florida United”), a hospital-based
provider. Mais incurred a medical debt of $49.03 to Florida United. McKesson
Practice Services (“McKesson”), a billing company serving as Florida United’s
agent, electronically retrieved Mais’s telephone number and demographic
information from the Hospital and billed Mais. When Mais did not pay or dispute
the debt, McKesson forwarded his account to Gulf Coast for collection pursuant to
a written agreement between Gulf Coast and Florida United’s parent company,
Sheridan Acquisition, P.A. (“Sheridan”), that provided Gulf Coast would “perform
third party collection services on referred accounts receivable.” Gulf Coast is a
debt collector that uses a predictive dialer to dial telephone numbers through
automated technology. See In re Rules & Regulations Implementing the
Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14,014, 14,022 (2003)
(“Predictive dialers, which initiate phone calls while telemarketers are talking to
other consumers, frequently abandon calls before a telemarketer is free to take the
next call. Using predictive dialers allows telemarketers to devote more time to
selling products and services rather than dialing phone numbers, but the practice
inconveniences and aggravates consumers who are hung up on.” (footnote
omitted)); id. at 14,093 (“[T]he Commission finds that a predictive dialer falls
within the meaning and statutory definition of ‘automatic telephone dialing
5
Case: 13-14008 Date Filed: 09/29/2014 Page: 6 of 32
equipment’ and the intent of Congress.”). Gulf Coast called Mais’s cell phone
about the debt with its predictive dialer between fifteen and thirty times and left
four messages. Gulf Coast similarly placed calls to other putative class members
to collect medical debts owed to Florida United.
Mais filed an amended class action complaint against Gulf Coast, Florida
United, and Sheridan (collectively, “Defendants”) in the United States District
Court for the Southern District of Florida, alleging that their collection activities
violated the Telephone Consumer Protection Act because Gulf Coast, acting on
behalf of Florida United and Sheridan, called Mais’s cell phone using an automatic
telephone dialing system or a prerecorded or artificial voice without his prior
express consent. 1 Before the district court considered the question of class
certification, the Defendants moved for summary judgment on the affirmative
defense that the calls could not and did not violate the TCPA because Mais
provided “prior express consent” to receive them when his wife completed in
writing the Hospital admissions forms. See 47 U.S.C. § 227(b)(1)(A)(iii). The
Defendants relied on a 2008 FCC Ruling, which concluded that “the provision of a
cell phone number to a creditor, e.g., as part of a credit application, reasonably
1
Mais’s amended complaint also named as a defendant Jack W. Brown, III, vice president and
part owner of Gulf Coast. The district court separately granted Brown summary judgment
because it found Mais pled no substantive cause against him individually and because it saw no
evidence that Brown committed, directly participated in, or otherwise authorized the commission
of wrongful acts. No appeal has been taken from that summary judgment order, and thus any
claims leveled against Brown are not part of this appeal.
6
Case: 13-14008 Date Filed: 09/29/2014 Page: 7 of 32
evidences prior express consent by the cell phone subscriber to be contacted at that
number regarding the debt.” 23 FCC Rcd. at 564. Defendants further argued that,
because the Hospital had consent to use and disclose Mais’s cell phone number
under the Health Insurance Portability and Accountability Act (HIPAA), Pub. L.
No. 104-191, 110 Stat. 1936 (1996), the TCPA prior express consent exception
was satisfied. Florida United and Sheridan also separately argued that they could
not be held vicariously liable for Gulf Coast’s calls because § 227(b)(1)(A) of the
TCPA only reaches those who “make any call” to a cell phone using automatic
dialing or a recorded voice. Mais likewise moved for partial summary judgment,
arguing that he had not given prior express consent for the calls because the 2008
FCC Ruling did not apply to medical debt and because his cell phone number had
been given to the Hospital, not the creditor, Florida United.
The district court found that Mais, not the Defendants, was entitled to
summary judgment on the prior express consent defense mounted by Gulf Coast,
Florida United, and Sheridan. The court began by explaining that satisfaction of
HIPAA did not automatically ensure compliance with the TCPA, “a separate
statute that imposes separate requirements.” Mais, 944 F. Supp. 2d at 1234. The
district court also determined that Defendants could not prevail on the basis of the
2008 FCC Ruling. While acknowledging that the Hobbs Act gave the federal
courts of appeals exclusive jurisdiction to review final FCC orders, the district
7
Case: 13-14008 Date Filed: 09/29/2014 Page: 8 of 32
court determined that it had jurisdiction to examine the FCC’s interpretation of the
TCPA because the central purpose of Mais’s suit was to obtain damages for
violations of the statute, not to collaterally attack or invalidate the 2008 FCC
Ruling. The court concluded that the Federal Communication Commission’s
interpretation of “prior express consent” embodied in its 2008 rule was not entitled
to any deference because it conflicted with the clear meaning of the TCPA. See
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9
(1984) (“The judiciary is the final authority on issues of statutory construction and
must reject administrative constructions which are contrary to clear congressional
intent.”). According to the district court, implying consent from the provision of a
cell phone number to a creditor impermissibly expanded the statutory exception to
cover “prior express or implied consent.” Mais, 944 F. Supp. 2d at 1239.
Compare Black’s Law Dictionary 346 (9th ed. 2004) (defining “express consent”
as “[c]onsent that is clearly and unmistakably stated”), with id. (defining “implied
consent” as “[c]onsent inferred from one’s conduct rather than from one’s direct
expression”). Cut loose from any FCC rulemaking concerning the meaning of
prior express consent, and thus interpreting the language found in the Act afresh,
the district court concluded that listing Mais’s cell phone number on the Hospital
admissions documents alone did not evince prior express consent to receive
autodialed or prerecorded calls. In the alternative, the district court also ruled that,
8
Case: 13-14008 Date Filed: 09/29/2014 Page: 9 of 32
even if the FCC’s interpretation of the meaning of prior express consent found in
the 2008 FCC Ruling was valid and binding, the rule would not apply under the
facts of this case because it was designed to cover consumer and commercial
contexts and did not reach medical settings. Moreover, the district court
determined, the FCC’s 2008 rulemaking would not apply here because Mais’s wife
gave his number only to the Hospital and not to the creditor, Florida United.
At the same time, the district court ruled that defendants Sheridan and
Florida United were entitled to summary judgment anyway because they could not
be held vicariously liable under the Telephone Consumer Protection Act for Gulf
Coast’s calls. Ultimately, the district court granted summary judgment to Mais
against Gulf Coast in part, ruling that he was entitled to $500 per call in statutory
damages for each of fifteen violative calls placed to his cell phone, as well as an
injunction ordering Gulf Coast not to place any further calls to Mais’s cell phone in
violation of the TCPA. The court left for trial the singular issue of whether Gulf
Coast willfully or knowingly violated the TCPA, and thus whether Mais would be
entitled to up to treble damages.
After unsuccessfully seeking reconsideration of the summary judgment
order, Gulf Coast asked the district court to certify the prior express consent issue
for interlocutory appeal because the “order involve[d] a controlling question of law
as to which there is substantial ground for difference of opinion” and because “an
9
Case: 13-14008 Date Filed: 09/29/2014 Page: 10 of 32
immediate appeal from the order may materially advance the ultimate termination
of the litigation.” 28 U.S.C. § 1292(b).2 The district court certified four questions
to this Court:
1) Whether a district court has jurisdiction under the Hobbs Act to
review an FCC order in a TCPA case when the plaintiff does not
challenge the validity of that order;
2) If the district court has such jurisdiction, whether the FCC’s
pronouncements on the issues of “prior express consent” and
vicarious liability are entitled to deference under Chevron;
3) If the district court lacks such jurisdiction, whether the FCC’s
opinion on “prior express consent” is limited to the consumer credit
transaction arena such that it does not apply to the medical care
setting; and
4) Whether a medical provider’s consent to use and disclose patient
information, including phone numbers, under HIPAA equates to
“prior express consent” for affiliates and agents of that provider to call
the patient on his cell phone for debt collection purposes using an
automated telephone dialing system.
This Court granted Gulf Coast’s timely petition for permission to appeal under
§ 1292(b).
2
In full, § 1292(b) provides:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for difference
of opinion and that an immediate appeal from the order may materially advance
the ultimate termination of the litigation, he shall so state in writing in such order.
The Court of Appeals which would have jurisdiction of an appeal of such action
may thereupon, in its discretion, permit an appeal to be taken from such order, if
application is made to it within ten days after the entry of the order: Provided,
however, That application for an appeal hereunder shall not stay proceedings in
the district court unless the district judge or the Court of Appeals or a judge
thereof shall so order.
10
Case: 13-14008 Date Filed: 09/29/2014 Page: 11 of 32
Though the certified questions may guide our analysis, “[t]he scope of
review on appeal under 28 U.S.C. § 1292(b) ‘is not limited to the precise question
certified by the district court because the district court’s order, not the certified
question, is brought before the court.’” Moorman v. UnumProvident Corp., 464
F.3d 1260, 1272 (11th Cir. 2006) (quoting Aldridge v. Lily-Tulip, Inc. Salary Ret.
Plan Benefits Comm., 40 F.3d 1202, 1207 (11th Cir. 1994)); accord Yamaha
Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996) (“[T]he appellate court
may address any issue fairly included within the certified order because ‘it is the
order that is appealable, and not the controlling question identified by the district
court.’” (quoting 9 James W. Moore & Bernard J. Ward, Moore’s Federal Practice
¶ 110.25[1], at 300 (2d ed. 1995))).
B.
A review of the statutory and regulatory background is critical to
understanding the proper resolution of the issues raised by this appeal. In response
to evidence “that automated or prerecorded calls are a nuisance and an invasion of
privacy,” Congress passed the Telephone Consumer Protection Act to balance
“[i]ndividuals’ privacy rights, public safety interests, and commercial freedoms of
speech and trade.” TCPA §2(9), (13), 105 Stat. at 2394, 2395. The TCPA
prohibits “any person . . . to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called party) using any
11
Case: 13-14008 Date Filed: 09/29/2014 Page: 12 of 32
automatic telephone dialing system or an artificial or prerecorded voice . . . to any
telephone number assigned to a . . . cellular telephone service.” 47 U.S.C.
§ 227(b)(1) (emphasis added). The TCPA also creates a private right of action that
allows a person to seek an injunction or monetary damages based on a violation of
§ 227(b) or a regulation promulgated thereunder. Id. § 227(b)(3). For each
violation, a plaintiff can recover the greater of actual monetary loss or $500. Id.
§ 227(b)(3)(B). Up to treble damages are available if the defendant committed a
violation willfully or knowingly. Id. § 227(b)(3)(C).
Moreover, Congress has conferred upon the FCC general authority to make
rules and regulations necessary to carry out the provisions of the TCPA. Id.
§ 227(b)(2) (“The Commission shall prescribe regulations to implement the
requirements of this subsection.”); see id. § 201(b) (“The Commission may
prescribe such rules and regulations as may be necessary in the public interest to
carry out the provisions of this chapter.”); id. § 303 (“Except as otherwise provided
in this chapter, the Commission from time to time, as public convenience, interest,
or necessity requires, shall -- . . . (r) Make such rules and regulations and prescribe
such restrictions and conditions, not inconsistent with law, as may be necessary to
carry out the provisions of this chapter . . . .”). The TCPA emphasizes that “the
[FCC] should have the flexibility to design different rules for those types of
automated or prerecorded calls that it finds are not considered a nuisance or
12
Case: 13-14008 Date Filed: 09/29/2014 Page: 13 of 32
invasion of privacy.” Pub. L. No. 102-243, § 2(13), 105 Stat. at 2395. As a result,
the TCPA permits the FCC to create exemptions “by rule or order” for certain
automatically dialed or prerecorded calls, such as calls not made for a commercial
purpose, 47 U.S.C. § 227(b)(2)(B)(i), calls that will not adversely affect privacy
rights and do not involve unsolicited advertisement, id. § 227(b)(2)(B)(ii), and
calls made to cell phones that are not charged to the called party, id.
§ 227(b)(2)(C).
The first FCC rules implementing the Act came in a 1992 Report and Order
that concluded “persons who knowingly release their phone numbers have in effect
given their invitation or permission to be called at the number which they have
given, absent instructions to the contrary.” In re Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991 (1992 FCC Order),
7 FCC Rcd. 8752, 8769. Therefore, the FCC explained, “telemarketers will not
violate our rules by calling a number which was provided as one at which the
called party wishes to be reached.” Id. In reaching that conclusion, the FCC
specifically referenced the House Report on the TCPA, which recognized that, if a
person knowingly releases his phone number, calls are permitted because “the
called party has in essence requested the contact by providing the caller with their
telephone number for use in normal business communications.” Id. at 8769 n.57
(quoting H.R. Rep. No. 102-317, at 13 (1991)).
13
Case: 13-14008 Date Filed: 09/29/2014 Page: 14 of 32
In 2008, in response to a Petition for Expedited Clarification and
Declaratory Ruling filed by ACA International, a trade organization of credit and
collection companies, 3 the FCC after notice and comment issued a Declaratory
Ruling “clarify[ing] that autodialed and prerecorded message calls to wireless
numbers that are provided by the called party to a creditor in connection with an
existing debt are permissible as calls made with the ‘prior express consent’ of the
called party.” 2008 FCC Ruling, 23 FCC Rcd. at 559. Specifically, the FCC
“conclude[d] 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.” Id. at 564. The FCC
“emphasize[d] that prior express consent is deemed to be granted only if the
wireless number was provided by the consumer to the creditor, and that such
number was provided during the transaction that resulted in the debt owed.” Id. at
564-65. The Commission concluded that “the burden will be on the creditor to
show it obtained the necessary prior express consent” because “creditors are in the
best position to have records kept in the usual course of business showing such
consent.” Id. at 565. As in the 1992 FCC Order, the Commission found support
for its interpretation of prior express consent from the legislative history of the
TCPA, including the House Report, which stated that “[t]he restriction on calls to
3
ACA International filed a brief in this case as amicus curiae in support of Gulf Coast.
14
Case: 13-14008 Date Filed: 09/29/2014 Page: 15 of 32
emergency lines, pagers, and the like does not apply when the called party has
provided the telephone number of such a line to the caller for use in normal
business communications.” Id. at 564 (quoting H.R. Rep. No. 102-317, at 17).
In 2012, the FCC issued still another Report and Order that further
interpreted the meaning of the prior express consent exception embodied in
§ 227(b)(1)(A) of the statute, though the Commission did not change the standard
for debt collection calls made to cell phone numbers. See In re Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991 (2012
FCC Order), 27 FCC Rcd. 1830. The 2012 FCC Order required written prior
express consent for autodialed or prerecorded calls to wireless or residential
numbers that deliver a telemarketing message. Id. at 1838. It “eliminate[d] the
established business relationship exemption for prerecorded telemarketing calls to
residential lines” created by the FCC in 1992. Id. at 1845. And the Commission
added an exemption for “all prerecorded health care-related calls to residential
lines that are subject to HIPAA.” Id. at 1852.
II.
We review the grant or denial of a motion for summary judgment de novo.
See Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). In so doing, we draw
all inferences and review all evidence in the light most favorable to the non-
moving party. Id. Summary judgment is required when “the movant shows that
15
Case: 13-14008 Date Filed: 09/29/2014 Page: 16 of 32
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A.
The district court exceeded its jurisdiction by declaring the 2008 FCC
Ruling to be inconsistent with the TCPA. Section 402(a) of the Communications
Act provides that (except in limited circumstances not relevant here) any
“proceeding to enjoin, set aside, annul, or suspend any order of the Commission”
must be brought under the Hobbs Act. 47 U.S.C. § 402(a). The Hobbs Act, in
turn, expressly confers on the federal courts of appeals “exclusive jurisdiction to
enjoin, set aside, suspend (in whole or in part), or to determine the validity of”
such FCC orders. 28 U.S.C. § 2342; see FCC v. ITT World Commc’ns, Inc., 466
U.S. 463, 468 (1984) (“Exclusive jurisdiction for review of final FCC orders . . .
lies in the Court of Appeals.”). This procedural path created by the command of
Congress “promotes judicial efficiency, vests an appellate panel rather than a
single district judge with the power of agency review, and allows ‘uniform,
nationwide interpretation of the federal statute by the centralized expert agency
created by Congress’ to enforce the TCPA.” CE Design, Ltd. v. Prism Bus. Media,
Inc., 606 F.3d 443, 450 (7th Cir. 2010) (quoting United States v. Dunifer, 219 F.3d
1004, 1008 (9th Cir. 2000)); see Nack v. Walburg, 715 F.3d 680, 685 (8th Cir.
2013), cert. denied, 134 S. Ct. 1539 (2014). In explaining the reach of the Hobbs
16
Case: 13-14008 Date Filed: 09/29/2014 Page: 17 of 32
Act, the Supreme Court has instructed that, “[a]bsent a firm indication that
Congress intended to locate initial APA review of agency action in the district
courts, we will not presume that Congress intended to depart from the sound policy
of placing initial APA review in the courts of appeals.” Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 745 (1985).
Despite these statutory strictures, the district court asserted jurisdiction to
review the 2008 FCC Ruling because Mais did not sue with the primary intent “to
enjoin, set aside, annul, or suspend” an FCC order, 47 U.S.C. § 402(a), and
because Mais’s claim did not necessarily depend on invalidation of the agency’s
ruling. The district court reasoned that the FCC’s interpretation of the meaning of
the term “prior express consent” could not be reconciled with the statutory
language, and therefore it discarded the administrative agency’s rulemaking
determination. In doing so, the district court exceeded its jurisdiction. “Because
the courts of appeals have exclusive jurisdiction over claims to enjoin, suspend, or
invalidate a final order of the FCC, the district courts do not have it.” Self, 700
F.3d at 461. “That means district courts cannot determine the validity of FCC
orders.” Id. By refusing to enforce the FCC’s interpretation, the district court
exceeded its power. “[D]eeming agency action invalid or ineffective is precisely
the sort of review that the Hobbs Act delegates to the courts of appeals in cases
challenging final FCC orders.” CE Design, 606 F.3d at 448.
17
Case: 13-14008 Date Filed: 09/29/2014 Page: 18 of 32
Moreover, Hobbs Act jurisdictional analysis looks to the “practical effect” of
a proceeding, not the plaintiff’s central purpose for bringing suit. B. F. Goodrich
Co. v. Nw. Indus., Inc., 424 F.2d 1349, 1353-54 (3d Cir. 1970) (“The statutory
procedure for review is applicable although an order is not directly attacked -- so
long as the practical effect of a successful suit would contradict or countermand a
Commission order.”). The district courts lack jurisdiction to consider claims to the
extent they depend on establishing that all or part of an FCC order subject to the
Hobbs Act is “wrong as a matter of law” or is “otherwise invalid.” Self, 700 F.3d
at 462. The Hobbs Act does not ask whether an FCC order was first invoked as
part of a plaintiff’s claim or as an affirmative defense. See Nack, 715 F.3d at 686
(“‘[W]here the practical effect of a successful attack on the enforcement of an
order involves a determination of its validity,’ such as a defense that a private
enforcement action is based upon an invalid agency order, ‘the statutory procedure
for review provided by Congress remains applicable.’” (quoting Sw. Bell Tel. v.
Ark. Pub. Serv. Comm’n, 738 F.2d 901, 906 (8th Cir. 1984))).
In other words, “[w]hichever way it is done, to ask the district court to
decide whether the regulations are valid violates the statutory requirements.”
United States v. Any and All Radio Station Transmission Equip., 207 F.3d 458,
463 (8th Cir. 2000). “The exclusive jurisdiction of the courts of appeals cannot be
evaded simply by labeling the proceeding as one other than a proceeding for
18
Case: 13-14008 Date Filed: 09/29/2014 Page: 19 of 32
judicial review.” Id. (quoting Sw. Bell Tel., 738 F.2d at 906). And “[a] defensive
attack on the FCC regulations is as much an evasion of the exclusive jurisdiction of
the Court of Appeals as is a preemptive strike.” Id.; see ITT World Commc’ns,
466 U.S. at 468 (“Litigants may not evade [the Hobbs Act] by requesting the
District Court to enjoin action that is the outcome of the agency’s order.”). Put still
another way, whether the challenge to an FCC order “arises in a dispute between
private parties makes no difference -- the Hobbs Act’s jurisdictional limitations are
‘equally applicable whether [a party] wants to challenge the rule directly . . . or
indirectly, by suing someone who can be expected to set up the rule as a defense in
the suit.’” CE Design, 606 F.3d at 448 (alterations in original) (quoting City of
Peoria v. Gen. Elec. Cablevision Corp., 690 F.2d 116, 120 (7th Cir. 1982)). In the
face of ample federal appellate precedent undermining his argument, Mais has
pointed us to no decision from any other court concluding that a district court had
jurisdiction to invalidate an order like the 2008 FCC Ruling in a dispute between
private litigants.4
4
In Leyse v. Clear Channel Broadcasting Inc., 697 F.3d 360 (6th Cir. 2012), a panel of the Sixth
Circuit originally held that the Hobbs Act only deprived a district court of jurisdiction “if the
action’s central object is to either enforce or undercut an FCC order.” Id. at 374. Thereafter,
however, the panel filed an amending and superseding opinion that abandoned the “central
object” analysis and concluded that the Hobbs Act limited the district court’s jurisdiction over
the plaintiff’s claims. See Leyse v. Clear Channel Broad., Inc., 545 F. App’x 444, 459 (6th Cir.
2013) (unpublished) (“[Plaintiff] knew that Clear Channel’s defense would depend on the FCC’s
exemption provision.”).
19
Case: 13-14008 Date Filed: 09/29/2014 Page: 20 of 32
Regardless of which party invoked the 2008 FCC Ruling, then, the district
court lacked jurisdiction “to enjoin, set aside, annul, or suspend” it -- precisely
what the court did. 47 U.S.C. § 402(a). “To hold otherwise” and permit a
challenge to the 2008 FCC Ruling “merely because the issue has arisen in private
litigation would permit an end-run around the administrative review mandated by
the Hobbs Act.” Nack, 715 F.3d at 686. Mais is free to ask the Commission to
reconsider its interpretation of “prior express consent” and to challenge the FCC’s
response in the court of appeals. See Self, 700 F.3d at 462 (citing 28 U.S.C.
§ 2344). But he “may not seek collateral review . . . by filing claims in the district
court.” Id.Moreover, we see no merit to Mais’s argument that the 2008 FCC Ruling
was not an order within the meaning of the Hobbs Act. Orders “adopted by the
Commission in the avowed exercise of its rule-making power” that “affect or
determine rights generally . . . have the force of law and are orders reviewable
under the” Hobbs Act. Columbia Broad. Sys. v. United States, 316 U.S. 407, 417
(1942); see id. at 416 (“The particular label placed upon [an order] by the
Commission is not necessarily conclusive, for it is the substance of what the
Commission has purported to do and has done which is decisive.”). The 2008 FCC
Ruling is a Hobbs Act final order. ACA International filed a petition seeking a
declaratory ruling clarifying the TCPA’s prior express consent exception. See 47
20
Case: 13-14008 Date Filed: 09/29/2014 Page: 21 of 32
C.F.R. § 1.2(a) (“The Commission may, in accordance with section 5(d) of the
Administrative Procedure Act, on motion or on its own motion issue a declaratory
ruling terminating a controversy or removing uncertainty.”). The FCC sought
public comment in accordance with its rulemaking procedures. Consumer &
Governmental Affairs Bureau Seeks Comment on ACA International’s Petition, 21
FCC Rcd. 3600 (2006); see 47 C.F.R. § 1.415(a) (“After notice of proposed
rulemaking is issued, the Commission will afford interested persons an opportunity
to participate in the rulemaking proceeding through submission of written data,
views, or arguments . . . .”). Creditors and collectors filed comments in support of
the petition, while consumer groups and individual consumers submitted
comments in opposition. 2008 FCC Ruling, 23 FCC Rcd. at 563-64. Thereafter,
the FCC issued its Declaratory Ruling pursuant to its general rulemaking authority
to carry out the TCPA. See id. at 567 (citing 47 U.S.C. §§ 227, 303(r)). The 2008
FCC Ruling thus has the force of law and is an order reviewable under the Hobbs
Act in the courts of appeals. See Leyse v. Clear Channel Broad., Inc., 545 F.
App’x 444, 455 (6th Cir. 2013) (unpublished) (“[T]here is little question that
Congress intended FCC rules of the type at issue here to have force of law.”). In
short, we hold that the district court was without jurisdiction to consider the
wisdom and efficacy of the 2008 FCC Ruling.5
5
Mais also cites to United States v. Any and All Radio Station Transmission Equipment, 204
21
Case: 13-14008 Date Filed: 09/29/2014 Page: 22 of 32
B.
Although the district court lacked the power to review the validity of the
FCC’s interpretation of prior express consent, we are obliged to address the
alternate holding of the court, that is, whether the facts and circumstances of this
case somehow fall outside the scope of the 2008 FCC Ruling. See Osorio v. State
Farm Bank, F.S.B., 746 F.3d 1242, 1257 (11th Cir. 2014) (“[W]e are not called
upon here to assess the order’s validity. We are instead simply deciding whether
the FCC’s . . . ruling is applicable to the present case.”); Self, 700 F.3d at 463
(determining “the scope” of an FCC order).
The district court found that the 2008 FCC Ruling did not apply to the
medical debt in this case because the Commission had addressed consent only in
the context of consumer credit. But the FCC did not distinguish or exclude
medical creditors from its 2008 Ruling. Quite the opposite, the FCC’s general
language sends a strong message that it meant to reach a wide range of creditors
and collectors, including those pursuing medical debts. The 2008 FCC Ruling
clarified the meaning of “prior express consent” for all “creditors and collectors
when calling wireless telephone numbers to recover payments for goods and
services received by consumers.” 23 FCC Rcd. at 563. Moreover, the FCC noted
F.3d 658 (6th Cir. 2000), for the proposition that the Hobbs Act does not always strip the district
courts of jurisdiction to review FCC orders. The problem is that case is wholly different. It
involved, as the Sixth Circuit noted, a forfeiture action, which that court characterized as “quasi-
criminal” in nature. Id. at 667.
22
Case: 13-14008 Date Filed: 09/29/2014 Page: 23 of 32
that the debt collection calls at the heart of the 2008 Ruling are primarily regulated
under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p,
which includes medical bills within its broad definition of “debt”: “any obligation
. . . of a consumer to pay money arising out of a transaction . . . primarily for
personal, family, or household purposes.” 15 U.S.C. § 1692a. Indeed, we have
recognized that the collection of medical debt can give rise to an FDCPA violation.
See, e.g., Bradley v. Franklin Collection Serv., Inc., 739 F.3d 606, 607 (11th Cir.
2014) (per curiam).
While the 2008 FCC Ruling listed the completion of “a credit application”
as an example of the provision of a cell phone number to a creditor, the
Commission did so illustratively, not exclusively. 23 FCC Rcd. at 564. Similarly,
the fact that the FCC’s interpretation often is invoked in the context of consumer or
commercial creditors does not lessen its application to medical debt collection.
See Mitchem v. Ill. Collection Serv., Inc., No. 09 C 7274, 2012 WL 170968, at *1-
2 (N.D. Ill. Jan. 20, 2012) (unpublished); Moise v. Credit Control Servs., Inc., 950
F. Supp. 2d 1251, 1253 (S.D. Fla. 2011) (“Based on the plain language of the
TCPA and the [2008] FCC order, it is clear that if Plaintiff gave his cell phone
number directly to [a medical laboratory], that would constitute express consent.”);
Pollock v. Bay Area Credit Serv., LLC, No. 08-61101-CIV, 2009 WL 2475167, at
*1 (S.D. Fla. Aug. 13, 2009) (unpublished) (applying the 2008 FCC Ruling to calls
23
Case: 13-14008 Date Filed: 09/29/2014 Page: 24 of 32
made by a defendant “attempting to collect a debt . . . that arose from personal
medical care”).
When it comes to expectations for receiving calls, we see no evidence that
the FCC drew a meaningful distinction between retail purchasers who complete
credit applications and medical patients who fill out admissions forms like the
Hospital’s. A patient filling out a form from a healthcare provider may very well
expect to be contacted about his health and treatment. But if the form explicitly
states that the provided information will be used for payment and billing, the
patient has the same reason to expect collection calls as a retail consumer. Though
Mais might prefer a different rule, the FCC in no way indicated that its 2008 order
distinguishes medical debtors. Florida United, which sought payment for medical
services performed for Mais, qualifies as creditor under the 2008 FCC Ruling.
Mais also suggests that the 2008 FCC Ruling does not affect his claim
because he did not “provide” his number to “the creditor” -- neither he nor his wife
personally transferred his cell phone number to Florida United or its collection
agent, Gulf Coast. After all, his wife submitted the admissions forms and the cell
phone number to a representative of the Hospital, an entity separate from Florida
United and Gulf Coast, and the 2008 FCC Ruling “emphasize[d] that prior express
consent is deemed to be granted only if the wireless number was provided by the
consumer to the creditor, and that such number was provided during the transaction
24
Case: 13-14008 Date Filed: 09/29/2014 Page: 25 of 32
that resulted in the debt owed.” 23 FCC Rcd. at 564-65 (emphasis added). Boiled
down, Mois’s argument turns on whether, under the FCC’s interpretation of prior
express consent, a called party “provides” his cell phone number to a creditor when
(during the transaction creating the debt) he authorizes an intermediary to disclose
his number to the creditor for debt collection.
The 2008 FCC Ruling does not offer an explicit answer to this question
because it does not spell out in detail the meaning of “provide.” Based on the
regulatory and statutory context, however, we reject Mais’s argument that the 2008
FCC Ruling only applies when a cell phone number is given directly to the
creditor. Mais’s narrow reading of the 2008 FCC Ruling would find prior express
consent when a debtor personally delivered a form with his cell phone number to a
creditor in connection with a debt, but not when the debtor filled out a nearly
identical form that authorized another party to give the number to the creditor.
Mais offers no functional distinction between these two scenarios, and we see no
sign that the FCC thought a cell phone number could be “provided to the creditor”
only through direct delivery. To the contrary, the 2008 FCC Ruling indicated that
prior express consent existed when a cell phone subscriber “made the number
available to the creditor regarding the debt.” 23 FCC Rcd. at 567. Plainly, Mais’s
wife made his number available to Florida United by granting the Hospital
permission to disclose it in connection with billing and payment.
25
Case: 13-14008 Date Filed: 09/29/2014 Page: 26 of 32
In addition, the FCC recently ruled “that the TCPA does not prohibit a caller
from obtaining consent through an intermediary.” In re GroupMe, Inc./Skype
Commc’ns S.A.R.L. Petition, 29 FCC Rcd. 3442, 3447 (2014). A provider of text
messaging services asked the Commission to “clarify that for non-telemarketing
voice calls or text messages to wireless numbers . . . the caller can rely on a
representation from an intermediary that they have obtained the requisite consent
from the consumer.” Id. at 3444. The FCC after notice and comment issued a
Declaratory Ruling that found “the TCPA is ambiguous as to how a consumer’s
consent to receive an autodialed or prerecorded non-emergency call should be
obtained.” Id. Exercising its interpretive discretion, the FCC explained that
“allowing consent to be obtained and conveyed via intermediaries in this context
facilitates these normal, expected, and desired business communications in a
manner that preserves the intended protections of the TCPA.” Id. at 3445. Of
particular note here, the FCC said that, though the 2008 FCC Ruling “did not
formally address the legal question of whether consent can be obtained and
conveyed via an intermediary,” the earlier order “did make clear that consent to be
called at a number in conjunction with a transaction extends to a wide range of
calls ‘regarding’ that transaction, even in at least some cases where the calls were
made by a third party.” Id. at 3446. The FCC’s recognition of “consent obtained
26
Case: 13-14008 Date Filed: 09/29/2014 Page: 27 of 32
and conveyed by an intermediary,” id., strongly supports our conclusion that
Mais’s wife “provided” the cell phone number to the creditor through the Hospital.
Other FCC explications of the prior express consent exception also show
that the appropriate analysis turns on whether the called party granted permission
or authorization, not on whether the creditor received the number directly. See
2012 FCC Order, 27 FCC Rcd. at 1839 (“[R]equiring prior written consent will
better protect consumer privacy because such consent requires conspicuous action
by the consumer -- providing permission in writing -- to authorize autodialed or
prerecorded telemarketing calls . . . .”); 1992 FCC Order, 7 FCC Rcd. at 8769
(“[P]ersons who knowingly release their phone numbers have in effect given their
invitation or permission to be called at the number which they have given, absent
instructions to the contrary.”). This conclusion is consistent with the legislative
history: the House and Senate Reports explain that the TCPA imposes liability for
calls made without the called party’s “prior express invitation or permission.”
H.R. Rep. No. 102-317, at 2, 3, 13; S. Rep. No. 102-177, at 16 (1991). Thus,
under the 2008 FCC Ruling a cell phone subscriber like Mais could provide his
number to a creditor like Florida United -- and grant prior express consent to
receive autodialed or prerecorded calls -- by affirmatively giving an intermediary
like the Hospital permission to transfer the number to Florida United for use in
billing.
27
Case: 13-14008 Date Filed: 09/29/2014 Page: 28 of 32
Mais, through his wife, gave the hospital just such permission. On his
behalf, Mais’s wife gave his cell phone number to a Hospital representative. She
received the Hospital’s Notice of Privacy Practices, which informed her that “[w]e
may use and disclose health information about your treatment and services to bill
and collect payment from you, your insurance company, or a third party payer,”
and that “[w]e may also use and disclose health information . . . [t]o business
associates we have contracted with to perform the agreed upon service and billing
for it.” The Notice explained that, when services are contracted with business
associates, including “physician services in the emergency department and
radiology,” the Hospital “may disclose your health information to our business
associate so that they can perform the job we’ve asked them to do and bill you.”
Mais’s wife signed a Conditions of Admission form in which she acknowledged
receiving the Notice of Privacy Practices and “permit[ted] the hospital and the
physicians or other health professionals involved in the inpatient or outpatient care
to release the healthcare information for purposes of treatment, payment or
healthcare operations.” We have little doubt that by signing the admissions forms
Mais’s wife agreed to allow the Hospital to transmit his health information to
Florida United so it could bill him for services rendered.6
6
Mais relies on a materially distinguishable district court case. In Moise, a plaintiff claimed that
she had not given prior express consent as interpreted in the 2008 FCC Ruling because she had
not provided her cell phone number to the creditor, an independent medical laboratory, and
28
Case: 13-14008 Date Filed: 09/29/2014 Page: 29 of 32
Mais points out that the FCC concluded in its 2008 Ruling that “prior
express consent provided to a particular creditor will not entitle that creditor (or
third party collector) to call a consumer’s wireless number on behalf of other
creditors, including on behalf of affiliated entities.” 23 FCC Rcd. at 565 n.38.
Here, however, the Hospital did not call Mais on behalf of Florida United. Nor did
the Hospital give Mais’s number to a debt collector to make unauthorized calls on
behalf of other creditors. Instead, with explicit permission from Mais’s wife, the
Hospital passed his cell phone number to Florida United, the creditor who provided
radiology services to Mais during his hospitalization. Because Mais’s wife
specifically authorized that transfer of health information for billing purposes, “the
wireless number was provided by the consumer to the creditor” in satisfaction of
the prior express consent exception. Id. at 564.
Mais finally argues that the term “health information” as used in the
Hospital admissions forms does not include his cell phone number. We disagree.
The Notice of Privacy Practices refers to “health information” as the contents of
instead had given it only to her doctor. 950 F. Supp. 2d at 1252-53. The district court explained,
“if the number was given only to Plaintiff’s treating physician, then Plaintiff did not give prior
express consent to [the laboratory] or its third party collector.” Id. at 1253. However, the court
concluded that “[t]o whom Plaintiff gave his number remains an issue for trial.” Id. In addition,
and in contrast to this case, the district court noted that “the facts do not indicate whether
Plaintiff gave his number to his doctor knowing that the doctor would share that number with
other creditors of Plaintiff or for the express purpose of giving his number to other creditors.”
Id. at 1254. Here, Mais’s wife gave the Hospital permission to pass on the cell phone number to
Florida United in connection with the debt.
29
Case: 13-14008 Date Filed: 09/29/2014 Page: 30 of 32
the record created by a health care provider, which includes a patient’s “symptoms,
examination and test results, diagnoses, treatment, a plan for future care or
treatment and billing-related information.” The cell phone number listed by
Mais’s wife on the Hospital admission form was part of the record from his visit
and was contact information related to billing. Mais observes that, at one point, the
Notice explains that the Hospital “may use and disclose health information about
your treatment and services to bill and collect payment.” (emphasis added). This
additional language does not exclude cell phone numbers; after all, contact
information can be quite relevant to treatment and services. Other provisions
describe the hospital’s policy of disclosing health information for billing and
payment without the “treatment and services” qualifier. And the Notice elsewhere
makes clear that “health information” covers contact information like cell phone
numbers because it tells patients that the Hospital may “use and disclose health
information . . . [t]o remind you that you have an appointment for medical care;
[t]o assess your satisfaction with our services; . . . [and] [t]o contact you as part of
fundraising efforts.” It is hard to see how the Hospital or outside entities could
communicate appointment reminders, survey patient satisfaction, or make
fundraising requests without using contact information like cell phone numbers.
Statutory definitions found in HIPAA also support this interpretation. We
agree with the district court that HIPAA compliance does not automatically ensure
30
Case: 13-14008 Date Filed: 09/29/2014 Page: 31 of 32
that a defendant falls within the prior express consent exception to the TCPA. The
two statutes provide separate protections, and satisfaction of the first does not
trigger compliance with the second. Nor has the FCC issued an order ruling that
satisfaction of HIPAA amounts to prior express consent to make autodialed or
prerecorded debt collection calls to a cell-phone number. Still, HIPAA’s definition
of “health information” informs the meaning of the term when the Hospital used it
in a required HIPAA notice. See 45 C.F.R. § 164.520(a)(1) (“[A]n individual has a
right to adequate notice of the uses and disclosures of protected health information
. . . .”). In line with the Hospital’s Notice, HIPAA defines “health information” to
include “any information . . . created or received by a health care provider” that
“relates to . . . the past, present, or future payment for the provision of health care
to an individual.” 42 U.S.C. § 1320d(4); see id. § 1320d(6) (“The term
‘individually identifiable health information’ means any information, including
demographic information collected from an individual, that -- (A) is created or
received by a health care provider . . . and (B) relates to . . . the past, present, or
future payment for the provision of health care to an individual, and -- (i) identifies
the individual; or (ii) with respect to which there is a reasonable basis to believe
that the information can be used to identify the individual.”). As reflected on a
Registration Form, the Hospital received Mais’s wireless number, a piece of
information related to future payment.
31
Case: 13-14008 Date Filed: 09/29/2014 Page: 32 of 32
Ultimately, by granting the Hospital permission to pass his health
information to Florida United for billing, Mais’s wife provided his cell phone
number to the creditor, consistent with the meaning of prior express consent
announced by the FCC in its 2008 Ruling. Gulf Coast is entitled to summary
judgment precisely because the calls to Mais fell within the TCPA prior express
consent exception as interpreted by the FCC. Under the Hobbs Act, the district
court lacked jurisdiction to review the Commission’s interpretation. Therefore, we
reverse the partial grant of summary judgment to Mais and remand to the district
court with instructions to enter summary judgment in favor of Gulf Coast on its
prior express consent defense.
REVERSED AND REMANDED.
32