Court Sides with FCC on TCPA "Prior Consent" Cell Phone Case

A U.S. District Court judge last week decided a case brought by a consumer claiming that an autodialed debt collection call to her cell phone violated the TCPA. The judge dismissed the case, ruling that by providing her cell number, she was consenting to being contacted using that method.

In a ruling in Hudson v. Sharp Healthcare, Judge Michael Anello – in the Southern District of California – determined that providing a cell phone number as the sole point of contact does constitute prior express consent under the TCPA, even if an autodialer is used to place the call.

The plaintiff in the case, and her minor child, received medical care at Sharp in September 2012. While the child was covered, the plaintiff’s healthcare coverage (unbeknownst to her) had lapsed.

During admission, the plaintiff provided her cell phone number as the sole point of contact. In addition, she signed paperwork that expressly consented to being contacted by Sharp should her bill fall into arrears.

So when Hudson fell behind on her payment, Sharp used an autodialer to contact her cell phone. The plaintiff filed a TCPA lawsuit in August 2013. Sharp moved for summary judgment, which Judge Anello granted on June 25.

In her arguments, Hudson relied in part on the controversial Mais decision last year in a district court in Florida. That case disregarded a Declaratory Ruling from the FCC, made at the request of ACA International, by finding that providing a cell number does not constitute prior express consent under the TCPA.

Anello directly addressed Mais, noting, “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.”

In a January 2008 ruling, the FCC determined that autodialed and prerecorded calls made to wireless numbers provided by the called party in connection with an existing debt are made with the “express prior consent” by the called party. The Mais decision is the only high-profile decision to go against that ruling. It is currently being challenged on appeal in the Eleventh Circuit.