Audrey Fober v. Mgmt. & Tech. Consultants, LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AUDREY FOBER, on behalf of herself No. 16-56220
and all others similarly situated,
Plaintiff-Appellant, D.C. No.
8:15-cv-01673-
v. CJC-DFM
MANAGEMENT AND TECHNOLOGY
CONSULTANTS, LLC; DOES, 1 OPINION
through 10, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted February 8, 2018
Pasadena, California
Filed March 29, 2018
Before: Susan P. Graber and Andrew D. Hurwitz, Circuit
Judges, and Algenon L. Marbley,* District Judge.
Opinion by Judge Graber
*
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
2 FOBER V. MTC
SUMMARY**
Telephone Consumer Protection Act
Affirming the district court’s summary judgment in favor
of the defendant in an action under the Telephone Consumer
Protection Act, the panel held that the plaintiff consented to
receive quality assurance calls when she signed a health
insurance enrollment form.
COUNSEL
Adrian Bacon (argued) and Todd M. Friedman, Law Offices
of Todd M. Friedman, Woodland Hills, California, for
Plaintiff-Appellant.
Harrison Maxwell Brown (argued), Yosef Mahmood, and
Ana Tagvoryan, Blank Rome LLP, Los Angeles, California,
for Defendant-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FOBER V. MTC 3
OPINION
GRABER, Circuit Judge:
In a putative class action complaint, Plaintiff Audrey
Fober alleged that Defendant Management and Technology
Consultants, LLC (“MTC”) violated the Telephone Consumer
Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, by calling
her repeatedly through an automatic telephone dialing system.
The district court entered summary judgment for MTC on the
ground that Plaintiff had consented to the calls. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The following facts are undisputed. At all relevant times,
Plaintiff was a member of the Health Net of California, Inc.
(“Health Net”) insurance plan. Upon enrolling in that plan,
Plaintiff completed and signed an “Enrollment and Change
Form for Small Business Group” (“Enrollment Form”).
Plaintiff provided her phone number on the Enrollment Form.
In the Enrollment Form, she agreed to the following terms:
THE USE AND DISCLOSURE OF
PROTECTED HEALTH INFORMATION:
I acknowledge and understand that health care
providers may disclose health information
about me . . . to Health Net Entities . . . .
Health Net Entities . . . may disclose this
information for purposes of treatment,
payment and health plan operations,
including but not limited to, utilization
4 FOBER V. MTC
management, quality improvement, disease or
case management programs.
(Emphases added.)
Health Net assigned Plaintiff to a medical group,
Affiliated Doctors of Orange County (“ADOC”), and selected
Dr. Barry Schwartz, a member of ADOC, to serve as her
primary care physician. ADOC and Regal Medical Group
(“Regal”) are affiliated medical groups of the Heritage
Provider Network. The Heritage Provider Network has a
contract with MTC, under which MTC conducts patient
satisfaction surveys and quality-of-care analysis regarding the
Heritage Provider Network’s affiliated medical groups,
including ADOC. Regal manages that enterprise on behalf of
ADOC.
Plaintiff visited Dr. Schwartz’ office twice. During her
first visit, Plaintiff completed a Patient Registration Form
(“Intake Form”) and, once again, provided her phone number.
After each of Plaintiff’s visits, Regal gave MTC Plaintiff’s
name, contact information, treating physician’s name, and
date of office visit so that MTC could conduct quality
assurance survey calls. Regal received Plaintiff’s contact
information directly from Health Net before passing that
information to MTC. MTC called Plaintiff several times to
ask about the quality of her experience with Dr. Schwartz.
Plaintiff then brought this action, alleging that MTC had
violated the TCPA by calling her. MTC moved for summary
judgment on the ground that Plaintiff had given “prior
express consent,” 47 U.S.C. § 227(b)(1), to being called. The
district court granted the motion, holding that Plaintiff
FOBER V. MTC 5
consented to the calls when she submitted the Enrollment
Form. Plaintiff timely appeals.
DISCUSSION1
The TCPA prohibits “any person within the United
States” from using an “automatic telephone dialing system or
an artificial or prerecorded voice” to call a phone number
assigned to a “cellular telephone service.” 47 U.S.C.
§ 227(b)(1). But the statute excepts calls made with the
recipient’s “prior express consent.” Id. The only issue before
us is whether Plaintiff gave “prior express consent” to
receiving MTC’s calls.
We hold that Plaintiff, by completing and submitting the
Enrollment Form, gave “prior express consent” to the calls at
issue. We therefore need not and do not opine on the effect
of the Intake Form.
A. Statutory and Regulatory Framework
Congress enacted the TCPA to protect the interests of
telephone users by placing restrictions on “unsolicited,
automated telephone calls.” Satterfield v. Simon & Schuster,
Inc., 569 F.3d 946, 954 (9th Cir. 2009) (quoting S. Rep. No.
102-178, at 1 (1991)). That is, the statute aims to curb a
particular type of uninvited call. As a result, the statute omits
from its ambit those calls that a person agrees to receive. Id.The TCPA grants the Federal Communications
Commission (“FCC”) authority to implement its requirements
1
We review de novo an order granting summary judgment. Metro.
Life Ins. Co. v. Parker, 436 F.3d 1109, 1113 (9th Cir. 2006).
6 FOBER V. MTC
by prescribing rules and regulations. 47 U.S.C. § 227(b)(2).2
The FCC has long interpreted the TCPA to embody the
principle that “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 & Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C.
Rcd. 8752, 8769 (1992). That is, in the FCC’s view, the very
act of turning over one’s phone number demonstrates a
willingness to be called about certain things, barring
instructions to the contrary. Id.Merely providing a phone number, however, does not
evince a willingness to be called for any reason. Van Patten
v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1045–46 (9th
Cir. 2017). Thus, “FCC orders and rulings show that . . .
transactional context matters in determining the scope of a
consumer’s consent to contact.” Id. at 1046. To fall within
the “prior express consent” exception, a call must relate to the
reason why the called party provided his or her phone number
in the first place. Id.Importantly, though, the TCPA does not require any one
method for obtaining “prior express consent.” In re
GroupMe, Inc./Skype Commc’ns, 29 F.C.C. Rcd. 3442, 3444
(2014). Accordingly, as the Eleventh Circuit has explained,
the analysis under the FCC’s rulings turns on whether the
called party granted permission to be called concerning a
2
We presume the validity of the relevant FCC rules and regulations.
See US W. Commc’ns, Inc. v. Jennings, 304 F.3d 950, 958 n.2 (9th Cir.
2002) (noting that “[p]roperly promulgated FCC regulations currently in
effect must be presumed valid” for purposes of a case not brought
pursuant to the Hobbs Act).
FOBER V. MTC 7
particular topic and not on how the calling party received the
number. Mais v. Gulf Coast Collection Bureau, Inc.,
768 F.3d 1110, 1123–24 (11th Cir. 2014). Thus, a party that
receives an individual’s phone number indirectly may
nevertheless have consent to call that individual. Id.As an example, a person can consent to calls from a
creditor by affirmatively giving an “intermediary” (for
example, a hospital) permission to transfer her number to the
creditor for billing purposes. Id. at 1124. An intermediary
cannot, however, convey consent that has not been obtained;
in every case, “the scope of consent must be determined upon
the facts of [the] situation [in which the person gave
consent].” In re Rules & Regulations Implementing the Tel.
Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7990
(2015).
B. The Enrollment Form
On the Enrollment Form, Plaintiff provided her phone
number and agreed that Health Net could disclose her
information “for purposes of treatment, payment and health
plan operations, including but not limited to, utilization
management, quality improvement, disease or case
management programs.” (Emphasis added.) That is exactly
what happened. Health Net, albeit through an intermediary,
provided MTC with Plaintiff’s phone number. MTC then
called Plaintiff for a purpose expressly described in the
Enrollment Form—i.e., assessing the quality of Plaintiff’s
healthcare.
The key in determining whether a consumer has granted
“prior express consent” to a particular call is the nature of the
call. Van Patten, 847 F.3d at 1045–46. In completing the
8 FOBER V. MTC
Enrollment Form, Plaintiff agreed to receive calls meant to
improve the quality of her health plan. The calls that Plaintiff
ultimately received—calls to assess her satisfaction with Dr.
Schwartz’ services—were undoubtedly made with the
purpose of improving the quality of Plaintiff’s care. We thus
conclude that the calls, at least in terms of substance, fell
within the scope of the consent that Plaintiff gave.
Plaintiff argues, though, that her consent extended only to
calls concerning the quality of Health Net’s services and not
to calls concerning the quality of Dr. Schwartz’ services. We
disagree because the text in the Enrollment Form sweeps
broadly.3 Plaintiff authorized calls pertaining to the operation
of her health plan and, relatedly, to the quality of her health
plan. The calls at issue were intended to measure whether
Plaintiff’s experience with a doctor that Health Net assigned
Plaintiff through her health plan was satisfactory. It takes
little imagination to see how that feedback might assist in
improving the quality of Plaintiff’s health plan generally.
Further, it does not matter that MTC, rather than Health
Net itself, ultimately placed the calls. As the Sixth Circuit
has explained, “[t]he FCC’s rulings in this area make no
distinction between directly providing one’s cell phone
number . . . and taking steps to make that number available
through other methods, like consenting to disclose that
number to other entities for certain purposes.” Baisden v.
Credit Adjustments, Inc., 813 F.3d 338, 346 (6th Cir. 2016).
Plaintiff “took steps” to make her number available to MTC.
True, Plaintiff could not have known the identity of the
3
Contrary to Plaintiff’s assertions, the Enrollment Form’s text is not
ambiguous. Rather, the text is broad. Breadth alone does not equal
ambiguity.
FOBER V. MTC 9
specific entity that would ultimately call her. But when
Plaintiff authorized Health Net to disclose her phone number
for certain purposes, she necessarily authorized someone
other than Health Net to make calls for those purposes.
Specifically, she authorized calls from entities to which
Health Net disclosed her information.4 MTC falls within that
category.
Plaintiff argues that the calls at issue nevertheless fall
outside the “prior express consent” exception because MTC
has not demonstrated that it called Plaintiff on Health Net’s
behalf. There is no statutory or logical basis for imposing
such a requirement. The TCPA aims to curb a particular kind
of call: a call that a person does not expect to receive. So the
statute’s applicability turns entirely on what conduct the
called party authorized. Of course, as a theoretical matter,
Plaintiff could have authorized only calls made on Health
Net’s behalf. But that is not what happened. Instead,
Plaintiff authorized callers to whom Health Net disclosed her
information to make a particular type of call—one relating to
the quality of Plaintiff’s healthcare. MTC falls within the
group of permissible callers, and the calls that it placed were
of the kind that Plaintiff agreed to receive.
The facts of Baisden provide a useful analogy. There, the
plaintiff authorized a hospital to “use her health information
for a range of purposes including billing and collecting
money[]” and to “release her health information to such
employees . . . as are necessary for these purposes.” Id. at
4
Plaintiff’s argument that the Enrollment Form provides for the
disclosure of information only to Health Net Entities, the SafeGuard
Entities, or Fidelity Entities is unavailing. The Enrollment Form goes on
to say that those entities may further disclose Plaintiff’s information.
10 FOBER V. MTC
346 (alterations omitted). The Sixth Circuit explained that
such consent permitted the hospital to give the plaintiff’s
information to its anesthesiology provider for purposes of
debt collection and further permitted the anesthesiology
provider to pass the plaintiff’s information on to its debt
collector. Id. at 347. The decision did not turn on whether
the debt collector called the plaintiff on the hospital’s behalf,
or even on whether the debt collector knew that the plaintiff
had authorized certain calls. Rather, the dispositive factor
was—as it is in every case concerning “prior express
consent”—the scope of contact that the plaintiff authorized.
Baisden’s reasoning applies persuasively here. Just as the
Baisden plaintiff, through her hospital, granted the debt
collector permission to call her about her debts, Plaintiff,
through Health Net, granted MTC the right to call her about
the quality of care that she received.
Our decision in Satterfield is not to the contrary. In fact,
it supports our conclusion. In Satterfield, the plaintiff
consented to calls from a particular entity and its “affiliates,”
but the defendant, Simon & Schuster, was neither that entity
nor one of its affiliates. 569 F.3d at 954–55. This case
differs in that Plaintiff’s consent contained no such limitation.
To the contrary, Plaintiff granted Health Net broad authority
to disclose her information for certain purposes, of which
quality assurance was one. We hold that Plaintiff, by
completing and submitting the Enrollment Form, gave “prior
express consent” to receiving the calls at issue.
AFFIRMED.