Most courts that have confronted the application of the “prior express consent” requirement of the TCPA have taken their cues from and adhered to the policy set by the Federal Communications Commission – the federal agency charged with implementing the statute.  However, two recent federal district courts have departed from the FCC’s guidance and injected new uncertainty into TCPA enforcement and confusion over the process for review of TCPA interpretations.  In Mais v. Gulf Coast Collection Bureau, Inc. and Zyburo v. NCSPlus, Inc. the Southern District of Florida and the Southern District of New York overrode jurisdictional challenges to adopt statutory constructions in conflict with settled FCC policy that the voluntary provision of a telephone number constituted sufficient prior express consent to contact consumers with prerecorded calls under the Telephone Consumer Protection Act (TCPA).  See 47 U.S.C. § 227.^[1]  These courts remarkably declined to follow the FCC’s 2008 Declaratory Ruling holding that “prior express consent” is manifest where a consumer has provided a telephone number as part of a transaction.^[2]  Both decisions pose substantial challenges to the FCC’s authority and ability to coordinate national federal policy under the statute it is charged to administer with the predictable result of creating a cloud of uncertainty for industry that must meet the requirements of the TCPA in multiple jurisdictions.

One of these decisions has now been reversed, while the other awaits review soon.  Last week, a unanimous panel of the Eleventh Circuit reversed the Southern District of Florida’s ruling.^[3]  Importantly, the Eleventh Circuit rejected both of the premises on which the district court based its ruling.  First, the Eleventh Circuit concluded that the Hobbs Act granted the federal Courts of Appeal the exclusive power to review FCC Orders, therefore precluding review by the district court.  Opinion at 2.  This ruling represented a victory for the FCC, which had filed an amicus curiae brief arguing that the district court did not have jurisdiction under the Hobbs Act to review the 2008 FCC Ruling.  Second, the Eleventh Circuit also rejected the district court’s holding that the 2008 FCC Ruling did not apply to medical debt, finding that the FCC did not draw a “meaningful distinction” between retail purchasers and medical patients.  Opinion at 27.

Importantly, the Eleventh Circuit’s decision continues a trend whereby the “indirect” provision of a telephone number can satisfy the prior express consent standard.  In Mais, the plaintiff’s wife provided his telephone number on hospital admission forms.  The Eleventh Circuit explained that this arrangement satisfied the prior express consent requirement and that there was “no sign that the FCC thought a cell phone number could be ‘provided to the creditor’ only through direct delivery.”  Opinion at 29.  This is in line with recent FCC decisions holding that obtaining consent through intermediaries or agents does not violate the prior express consent standard.^[4]

The Eleventh Circuit’s ruling casts into serious doubt the validity of outlier rulings like  Zyburo that deviate from the FCC’s constructions of the TCPA.  Defendants have appealed the class-certification decision in Zyburo to the Second Circuit.  Industry participants and TCPA litigants will be watching with interest to see whether the Second Circuit follows the path set by the Eleventh Circuit in Mais and rules that the district court cannot overturn FCC decisions with novel statutory constructions that undermine the agency’s power to coordinate policy and provide for uniformity in application of the TCPA.

_{[1] Mais v. Gulf Coast Collection Bureau, Inc., 944 F.Supp. 2d 1226 (S.D. Fla. 2013); Zyburo v. NCSPlus, Inc., 2014 U.S. Dist. LEXIS 89258.}

_{[2] See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Request of ACA International for Clarification and Declaratory Ruling, 23 FCC Rcd 559, 564 (¶ 8) (2008) (“2008 FCC Ruling”).}

_{[3] Mais v. Gulf Coast Collection Bureau, Inc., 2014 U.S. App. LEXIS 18554.}

_{[4] See, e.g., GroupMe, Inc./Skype Communications S.A.R.L., Declaratory Ruling, CG Docket No. 02-78, FCC 14-33 (rel. Mar. 27, 2014).}