Fober v. Mgmt. & Tech. Consultants, LLC

• Decision Date: 29 March 2018
• Docket Number: No. 16-56220,16-56220
• Parties: Audrey FOBER, on behalf of herself and all others similarly situated, Plaintiff–Appellant, v. MANAGEMENT AND TECHNOLOGY CONSULTANTS, LLC ; Does, 1 through 10, inclusive, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

886 F.3d 789

Audrey FOBER, on behalf of herself and all others similarly situated, Plaintiff–Appellant,

v.MANAGEMENT AND TECHNOLOGY CONSULTANTS, LLC ; Does, 1 through 10, inclusive, Defendants–Appellees.

No. 16-56220

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2018, Pasadena, California

Filed March 29, 2018

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.

Before: Susan P. Graber and Andrew D. Hurwitz, Circuit Judges, and Algenon L. Marbley,^* District Judge.

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 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 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 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 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 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. 20...