Baisden v. Credit Adjustments, Inc.

• Decision Date: 12 February 2016
• Docket Number: No. 15–3411.,15–3411.
• Citation: 813 F.3d 338
• Parties: Zachary BAISDEN and Brenda L. Sissoko, Plaintiffs–Appellants, v. CREDIT ADJUSTMENTS, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

813 F.3d 338

Zachary BAISDEN and Brenda L. Sissoko, Plaintiffs–Appellants,

v.CREDIT ADJUSTMENTS, INC., Defendant–Appellee.

No. 15–3411.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 9, 2015.

Decided and Filed: Feb. 12, 2016.

ARGUED:Daniel R. Freytag, Freytag Carpenter LLC, Columbus, Ohio, for Appellants. Brian M. Spiess, Montgomery, Rennie & Jonson, Cincinnati, Ohio, for Appellee. ON BRIEF:Daniel R. Freytag, Kendra L. Carpenter, Freytag Carpenter LLC, Columbus, Ohio, for Appellants. Brian M. Spiess, George D. Jonson, Montgomery, Rennie & Jonson, Cincinnati, Ohio, for Appellee.

Before: BATCHELDER and GRIFFIN, Circuit Judges; and CARR, District Judge.^*

OPINION

GRIFFIN

, Circuit Judge.

This putative class action arises out of Credit Adjustments, Inc.'s attempts to collect a little over one thousand dollars of medical debt incurred by Zachary Baisden and Brenda Sissoko ("plaintiffs"). Plaintiffs contend Credit Adjustments violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii)

, when it placed debt collection calls to their cell phone numbers using an "automatic telephone dialing system" and an "artificial or prerecorded voice." Credit Adjustments neither disputes that it placed calls to their cell phone numbers nor that it used the technologies as alleged. Rather, Credit Adjustments contends that by virtue of plaintiffs' provision of their cell phone numbers to the hospital where they received medical care, plaintiffs gave their "prior express consent" to receive such calls and, thus, it did not violate the TCPA as interpreted by the Federal Communications Commission ("FCC"). The district court entered summary judgment for Credit Adjustments on this basis, and we affirm.

I.

Plaintiffs received medical care from Mount Carmel Hospital in Columbus, Ohio. Consultant Anesthesiologists provided anesthesiology services to each at Mount Carmel Hospital, billing Baisden $850.00 in 2011, and Sissoko $273.42 in 2009 and $171.52 in 2011. After plaintiffs did not pay these bills, Consultant Anesthesiologists transferred these delinquent accounts to Credit Adjustments. Credit Adjustments called plaintiffs' cell phone numbers, despite never having received their contact information directly from them. Instead, Credit Adjustments received the numbers from Consultant Anesthesiologists, which received them from Mount Carmel Hospital.

As part of their admission for services to Mount Carmel Hospital, Baisden and Sissoko signed Patient Consent and Authorization forms covering "all medical and surgical care." Baisden's authorization provides, in pertinent part, as follows:

2. Release of information

I understand Mount Carmel may use my health information for many reasons as needed:

— insurance information

— billing and payment

— discharge planning and other health care providers

— quality improvement reviews

— Medicare, Medicaid, and other government programs

— Bureau of Workers' Compensation

— my employer if I am injured on the job

— medical and nursing education programs

— public health reporting

— legal, regulatory, and accreditation agencies

Mount Carmel may receive or release my health information, whether written, verbal, fax, or electronic using secured internet web sites.

The above also allows Mount Carmel to release medical information about drug and/or alcohol abuse, HIV (Human Immunodeficiency

Virus) testing or HIV infection related conditions. This authorization shall remain valid for one (1) year.

3. Acknowledgement of notice of privacy practices

I have received or been offered a copy of Mount Carmel's Notice of Privacy Policies. I have had a chance to object to the use or release of my information to the hospital directory or to my family or persons involved in my care.

(Emphasis in italics added.) Sissoko signed two different forms. In 2011, she agreed to the same terms set forth for Baisden. The 2009 form, however, is different and provides in pertinent part as follows:

2. Release of information

I understand Mount Carmel may use my health information for a range of purposes including insurance/payment eligibility verification; billing and collecting moneys due from me, private and public payors or their agents including insurance companies, managed care entities, my employer, state and federal government programs and the Bureau of Workers' Compensation; obtaining pre-admission or continued length of stay certification; quality of care assessment and improvement activities; evaluating the performance or qualifications of physicians and health care workers; conducting medical and nursing training and education programs; conducting or arranging for medical review and audit services; ensuring compliance with legal, regulatory and accreditation requirements, performance of autopsies, and; public health activities. I authorize Mt. Carmel to receive or release my health information, whether written, verbal, electronic including secured internet web sites or by facsimile to such employees, agents or third parties as are necessary for these purposes and to companies who provide billing services for physicians or other providers involved in my medical care.

I understand that complete, accurate health information must be readily available for my medical care. Therefore, I authorize Mount Carmel to release health information to my family physician, referring physician or agency(ies) in order to facilitate continuity of care. I understand that the information shared with health care professionals as a result of this authorization will remain confidential.

The preceding authorizations for release of medical information include authorization for the release of information regarding drug and/or alcohol abuse, HIV (Human Immunodeficiency

Virus) testing or HIV infection related conditions. This authorization shall remain valid for one (1) year.

3. Acknowledgement of notice of privacy practices

I acknowledge that I have received or been offered a copy of Mount Carmel's Notice of Privacy Practices and have had a chance to object to the use or discharge of my information for directory, disaster relief or to provide information to family or persons involved in my care.

(Emphasis added.)

Plaintiffs allege Credit Adjustments violated the TCPA by using an "automatic telephone dialing system" and an "artificial or prerecorded voice" to place calls to their cell phone numbers because they had not given their numbers to Credit Adjustments, or the creditor on whose behalf it was calling, Consultant Anesthesiologists. The district court granted summary judgment in favor of Credit Adjustments, reasoning that plaintiffs had given their "prior express consent" by way of providing their contact information to Mount Carmel Hospital and therefore were precluded from bringing claims under the TCPA. Plaintiffs timely appeal.

II.

A.

The TCPA regulates the use of certain technology when placing calls to consumers.¹ It makes it unlawful for any person to place a call "using any automatic telephone dialing system or an artificial or prerecorded voice" to a cell phone number without obtaining the "prior express consent of the called party." 47 U.S.C. § 227(b)(1)(A)(iii)

. "[T]he FCC has interpretive authority over the [TCPA]," Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 467 (6th Cir.2010), and its "rulings ... shape the law in this area[.]" Hill v. Homeward Residential, Inc., 799 F.3d 544, 551 (6th Cir.2015). Because this is not a direct agency appeal challenging the validity of the FCC's interpretations, we lack jurisdiction to consider whether the FCC's interpretations regarding "prior express consent" are consistent with the TCPA.²

See Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627, 637 (6th Cir.2015) ("[T]he Hobbs Act confers jurisdiction on Courts of Appeal to review FCC regulations only by direct appeal from the FCC."). Accordingly, this case turns only on whether the district court properly granted summary judgment on the basis that Credit Adjustments had "prior express consent" to call plaintiffs' cell phone numbers, which we review de novo. Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 526 (6th Cir.2014).

B.

The FCC has provided extensive guidance regarding what constitutes "prior express consent," and four of its interpretations are particularly pertinent. First, in 1992, the FCC interpreted "prior express consent" to include a form of implied consent, reasoning in a Report and Order 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 the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8769 (1992)

(footnote omitted) (the "1992 Order "). In support of this construction, the FCC relied upon the TCPA's legislative history, "noting that in such instances, ‘the called party has in essence requested the contact by providing the caller with the telephone number for use in normal business communications.’ " Id. at 8769 n. 57 (citation omitted). The FCC was careful to distinguish between these permissible contacts where a party "call[s] a number which was provided as one at which the called party wishes to be reached" and impermissible contacts where a party learns of a telephone number in another way, such as by capturing a telephone number via Caller ID. Id. at 8769. The essence of this distinction is that in contrast to the former, the latter involves a situation where "the caller cannot be considered to have given an invitation or permission[.]" Id. See also Hill, 799 F.3d at 551 ("[A] party who gives an ‘invitation or permission to be called at [a certain] number’ has given its express consent with respect to that number.") (alteration in original) (citing the 1992 Order ).

Second, the FCC extended this general proposition in 2008 to cell phone numbers: "autodialed and prerecorded message calls to wireless numbers that are...