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Mais v. Gulf Coast Collection Bureau, Inc.

United States Court of Appeals, Eleventh Circuit

September 29, 2014

MARK S. MAIS, on behalf of himself and all others similarly situated, Plaintiff - Appellee,
v.
GULF COAST COLLECTION BUREAU, INC., Defendant - Appellant

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:11-cv-61936-RNS.

For MARK S. MAIS, on behalf of himself and all others similarly situated, Plaintiff - Appellee: Deepak Gupta, Jonathan Ellis Taylor, Gupta Beck PLLC, Washington, DC; O. Randolph Bragg, Horwitz Horwitz & Associates, Ltd., Chicago, IL; Donald A. Yarbrough, Donald A. Yarbrough, Esq, Fort Lauderdale, FL.

For Gulf Coast Collection Bureau, Inc., Defendant - Appellant: Ernest H. Kohlmyer III, Urban Thier Federer & Chinner, PA, Orlando, FL.

For Aca International, Amicus Curiae: Brian Melendez, Dykema Gossett, PLLC, Minneapolis, MN.

For Federal Communications Commission, Amicus Curiae: Pamela Louise Smith, Federal Communications Commission, Office of General Counsel, Washington, DC.

Before HULL, MARCUS and HILL, Circuit Judges.

OPINION

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MARCUS, Circuit Judge:

Plaintiff Mark Mais filed a claim in federal district court against a hospital-based radiology provider and its debt collection agent for making autodialed or prerecorded calls in violation of the Telephone Consumer Protection Act of 1991 (TCPA), Pub. L. No. 102-243, 105 Stat. 2394 (codified at 47 U.S.C. § 227). Defendant Gulf Coast Collection Bureau, Inc. (" Gulf Coast" ) argued tat the calls fell within a statutory exception for " prior express consent," as interpreted in a 2008 declaratory ruling from the Federal Communications Commission (the " FCC" or " Commission" ). See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2008 FCC Ruling), 23 F.C.C.R. 559, 564. The district court granted Mais partial summary judgment against Gulf Coast for alternative reasons: the FCC's interpretation was inconsistent with the language of the TCPA and, regardless, the 2008 FCC Ruling did not apply on the facts of this case.

As we see it, the district court lacked the power to consider in any way the validity of the 2008 FCC Ruling and also erred in concluding that the FCC's interpretation did not control the disposition of the case. In the Hobbs Act, 28 U.S.C. § 2342, Congress unambiguously deprived the federal district courts of jurisdiction to invalidate FCC orders by giving exclusive power of review to the courts of appeals. See Self v. Bellsouth Mobility, Inc., 700 F.3d 453, 461 (11th Cir. 2012). And Mais's claim falls squarely within the scope of the FCC order, which covers medical debts. The 2008 FCC Ruling " conclude[d] that the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent to be contacted at that number regarding the debt." 23 F.C.C.R. at 564. There is no dispute that Mais's wife listed his cell phone number on a hospital admissions form and agreed to the hospital's privacy practices, which allowed the hospital to release his health information for billing to the creditor. As a result, the TCPA exception for prior express consent -- as interpreted in the 2008 FCC Ruling -- entitles Gulf Coast to judgment as a matter of law. Accordingly, we reverse the district court's grant of partial summary judgment to Mais and remand with instructions to enter final summary judgment for Gulf Coast.

I.

A.

The district court found the following facts to be material and undisputed, and indeed the parties have not disputed any of them on appeal. See Mais v. Gulf Coast Collection Bureau, Inc., 944 F.Supp.2d 1226, 1230-31 & n.1 (S.D. Fla. 2013). Mark Mais sought emergency room treatment at the Westside Regional Hospital (the " Hospital" ) in Broward County, Florida, in 2009. On behalf of her ill husband, Laura Mais completed and signed admissions documents, which she gave to a Hospital representative. She provided the admitting nurse with demographic and insurance information, including her husband's cell phone number. By signing a Conditions of Admission form, she acknowledged receiving the Hospital's Notice of Privacy Practices (the " Notice" ) and expressly agreed that " the hospital and the physicians or other health professionals involved in the inpatient or outpatient care [may] release [Plaintiff's] healthcare information

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for purposes of treatment, payment or healthcare operations," including " to any person or entity liable for payment on the patient's behalf in order to verify coverage or payment questions, or for any other purpose related to benefit payment." Id. at 1230-31 (alterations in original). Moreover, the Notice said the Hospital " may use and disclose health information about [Plaintiff's] treatment and services to bill and collect payment from [Plaintiff], [his] insurance company or a third party payor." Id. at 1231 (alterations in original). The Notice stated that " [w]e may also use and disclose health information . . . to business associates we have contracted with to perform agreed upon service and billing for it," including " physician services in the emergency department and radiology." In addition, the Notice told patients that the Hospital " may disclose your health information to our business associate[s] so that they can perform the job we've asked them to do and bill you." Finally, the Conditions of Admission form stated that services provided by " [h]ospital-based physicians," including " Radiologists," " are rendered by independent contractors" and " will be billed for separately by each physician's billing company."

Mark Mais was admitted to the Hospital, where he received radiology services from Florida United Radiology, L.C. (" Florida United" ), a hospital-based provider. Mais incurred a medical debt of $49.03 to Florida United. McKesson Practice Services (" McKesson" ), a billing company serving as Florida United's agent, electronically retrieved Mais's telephone number and demographic information from the Hospital and billed Mais. When Mais did not pay or dispute the debt, McKesson forwarded his account to Gulf Coast for collection pursuant to a written agreement between Gulf Coast and Florida United's parent company, Sheridan Acquisition, P.A. (" Sheridan" ), that provided Gulf Coast would " perform third party collection services on referred accounts receivable." Gulf Coast is a debt collector that uses a predictive dialer to dial telephone numbers through automated technology. See In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14,014, 14,022 (2003) (" Predictive dialers, which initiate phone calls while telemarketers are talking to other consumers, frequently abandon calls before a telemarketer is free to take the next call. Using predictive dialers allows telemarketers to devote more time to selling products and services rather than dialing phone numbers, but the practice inconveniences and aggravates consumers who are hung up on." (footnote omitted)); id. at 14,093 (" [T]he Commission finds that a predictive dialer falls within the meaning and statutory definition of 'automatic telephone dialing equipment' and the intent of Congress." ). Gulf Coast called Mais's cell phone about the debt with its predictive dialer between fifteen and thirty times and left four messages. Gulf Coast similarly placed calls to other putative class members to collect medical debts owed to Florida United.

Mais filed an amended class action complaint against Gulf Coast, Florida United, and Sheridan (collectively, " Defendants" ) in the United States District Court for the Southern District of Florida, alleging that their collection activities violated the Telephone Consumer Protection Act because Gulf Coast, acting on behalf of Florida United and Sheridan, called Mais's cell phone using an automatic telephone dialing system or a prerecorded or artificial voice without his prior express consent.[1] Before

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the district court considered the question of class certification, the Defendants moved for summary judgment on the affirmative defense that the calls could not and did not violate the TCPA because Mais provided " prior express consent" to receive them when his wife completed in writing the Hospital admissions forms. See 47 U.S.C. § 227(b)(1)(A)(iii). The Defendants relied on a 2008 FCC Ruling, which concluded that " the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt." 23 FCC Rcd. at 564. Defendants further argued that, because the Hospital had consent to use and disclose Mais's cell phone number under the Health Insurance Portability and Accountability Act (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996), the TCPA prior express consent exception was satisfied. Florida United and Sheridan also separately argued that they could not be held vicariously liable for Gulf Coast's calls because § 227(b)(1)(A) of the TCPA only reaches those who " make any call" to a cell phone using automatic dialing or a recorded voice. Mais likewise moved for partial summary judgment, arguing that he had not given prior express consent for the calls because the 2008 FCC Ruling did not apply to medical debt and because his cell phone number had been given to the Hospital, not the creditor, Florida United.

The district court found that Mais, not the Defendants, was entitled to summary judgment on the prior express consent defense mounted by Gulf Coast, Florida United, and Sheridan. The court began by explaining that satisfaction of HIPAA did not automatically ensure compliance with the TCPA, " a separate statute that imposes separate requirements." Mais, 944 F.Supp.2d at 1234. The district court also determined that Defendants could not prevail on the basis of the 2008 FCC Ruling. While acknowledging that the Hobbs Act gave the federal courts of appeals exclusive jurisdiction to review final FCC orders, the district court determined that it had jurisdiction to examine the FCC's interpretation of the TCPA because the central purpose of Mais's suit was to obtain damages for violations of the statute, not to collaterally attack or invalidate the 2008 FCC Ruling. The court concluded that the Federal Communication Commission's interpretation of " prior express consent" embodied in its 2008 rule was not entitled to any deference because it conflicted with the clear meaning of the TCPA. See Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 n.9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (" The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." ). According to the district court, implying consent from the provision of a cell phone number to a creditor impermissibly expanded the statutory exception to cover " prior express or implied consent." Mais, 944 F.Supp.2d at 1239. Compare Black's Law Dictionary 346 (9th ed. 2004) (defining " express consent" as " [c]onsent that is clearly and unmistakably stated" ), with id. (defining " implied consent" as " [c]onsent inferred from one's conduct rather than from one's direct expression" ). Cut loose from any FCC rulemaking concerning the meaning of prior express consent, and thus interpreting the language

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found in the Act afresh, the district court concluded that listing Mais's cell phone number on the Hospital admissions documents alone did not evince prior express consent to receive autodialed or prerecorded calls. In the alternative, the district court also ruled that, even if the FCC's interpretation of the meaning of prior express consent found in the 2008 FCC Ruling was valid and binding, the rule would not apply under the facts of this case because it was designed to cover consumer and commercial contexts and did not reach medical settings. Moreover, the district court ...


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