Sixth Circuit Court of Appeals Affirms “Prior Express Consent” Defeats TCPA Claim in Healthcare Collections Case

On February 12, 2016 the Court of Appeals for the Sixth Circuit issued an opinion affirming that “prior express consent” will defeat a claim in the Telephone Consumer Protection Act (TCPA). 47 U.S.C. § 227(b)(1)(A)(iii).  The case, Baisden, et al. v. Credit Adjustments, Inc., (U.S. Court of Appeals, Sixth Circuit, No, 15-3411) arose out of an appeal of a District Court Summary Judgment Order. A copy of the opinion can be found here.

The putative class action arose out of Credit Adjustments, Inc.’s (“CA”) attempts to collect a little over one thousand dollars of medical debt incurred by Zachary Baisden and Brenda Sissoko (“plaintiffs”). Plaintiffs contended that CA violated the TCPA when it placed debt collection calls to their cell phone numbers using an “automatic telephone dialing system” and an “artificial or prerecorded voice.” CA neither disputed that it placed calls to their cell phone numbers nor that it used the technologies as alleged. Rather, CA contends that by virtue of plaintiffs’ provision of their cell phone numbers to the hospital where they received medical care, plaintiffs gave their “prior express consent” to receive such calls and, thus, it did not violate the TCPA as interpreted by the Federal Communications Commission (“FCC”)

The underlying facts of the case distinguish this matter from a simple, direct “prior express consent” case. In this case consent was be obtained by and conveyed through an intermediary. (Editor’s Note: The prior express consent methodology described below in this case is prevalent in many healthcare accounts that originate out of a hospital visit.)

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