Another Court Refuses to Defer to FCC's Express Consent Ruling in TCPA Case

A district judge in New York this week certified a class action TCPA case against a debt collection agency where the defendant argued it had express prior consent to call a cell phone because the plaintiff had provided that number to the creditor. The ruling referenced and ignored an FCC order that allowed for autodialed calls to cell phones with express consent.

In Zyburo v. NCSPlus, Inc., before the U.S. District Court in the Southern District of New York, the plaintiff alleged that the defendant had repeatedly called his cell phone using an automated dialing system in violation of the TCPA. When Zyburo moved to certify a class, NCSPlus strongly defended.

The defendant argued the case was improper for class certification because many of the proposed class members had allegedly provided the defendant — or at least the underlying creditor — with consent. The defendant based this argument on the 2008 ruling by the FCC in which the Commission held the “provision of a cell phone number to a creditor…reasonably evidences prior express consent to be contacted at that number regarding the debt.”

The plaintiff, meanwhile, urged the court to adopt the position of the Mais court, which explicitly rejected the FCC’s order.

The judge in the Zyburo case sided with the Mais court and likewise rejected the FCC’s order, writing “this Court agrees with the Mais Court that ‘[t]he FCC’s construction is inconsistent with the statute’s plain language because it impermissibly amends the TCPA to provide an exception for ‘prior express or implied consent.’”

The Mais decision and the use of the FCC’s 2008 order has proven highly controversial in TCPA cases, especially within the ARM industry. But collection defense attorney David Kaminski said that many courts are adhering to the FCC order.

“It should be noted that while the Courts in Mais and Zyburo have declined to give deference to the FCC ruling, the vast majority of district courts have taken the opposite position and given deference to the FCC ruling,” he said. “Furthermore, the Mais decision is currently being appealed before the 11th Circuit.”

Indeed, in late June insideARM covered a district court case that saw a judge speak directly to the controversy. Judge Michael Anello of the Southern District of California wrote in Hudson v. Sharp Healthcare, “Mais is viewed as an outlier decision and is not otherwise binding on this Court…In line with other courts in this district, this Court treats the FCC Orders as binding.”