The Court of Appeals for the Ninth Circuit has upheld a lower court’s summary judgment ruling in favor of a defendant who was sued for allegedly violating the Telephone Consumer Protection Act because a third party had contacted the plaintiff using an automatic telephone dialing system (ATDS).
The Appeals Court ruled that the language of an enrollment form signed by the plaintiff included the required prior express consent for the third party to contact the individual.
A copy of the ruling in Audrey Fober v. Management and Technology Consultants, can be accessed by clicking here.
One law firm said the ruling underscores the importance of using carefully worded consent forms in order to avoid TCPA liability.
In this case, the plaintiff signed an enrollment form for health insurance, which included language that the company may disclose information about the plaintiff for the purposes of “quality improvement,” among other things. The plaintiff, after visiting a physician, was contacted by the defendant for the purposes of quality assurance. The defendant was seeking comments and insights into the plaintiff’s experience with her physician.
The plaintiff subsequently sued, saying the defendant did not have the right to contact her using an ATDS.
By authorizing the insurance company to be able to disclose her phone number, the plaintiff “necessarily authorized someone other than Health Net to make calls for those purposes,” the Appeals Court ruled.
Plaintiff argues that the calls at issue nevertheless fall outside the “prior express consent” exception because [the defendant] has not demonstrated that it called Plaintiff on Health Net’s behalf. There is no statutory or logical basis for imposing such a requirement. The TCPA aims to curb a particular kind of call: a call that a person does not expect to receive. So the statute’s applicability turns entirely on what conduct the called party authorized. Of course, as a theoretical matter, Plaintiff could have authorized only calls made on Health Net’s behalf. But that is not what happened. Instead, Plaintiff authorized callers to whom Health Net disclosed her information to make a particular type of call—one relating to the quality of Plaintiff’s healthcare. [The defendant] falls within the group of permissible callers, and the calls that it placed were of the kind that Plaintiff agreed to receive.
For collection agencies, the takeaway is to try and understand the language included in an agreement between an individual and the creditor or whatever type of company owns the debt. Ensuring that the proper consent has been disclosed and approved is essential to maintaining TCPA compliance.
