The Eleventh Circuit Reaffirms FCCs Authority To Coordinate National TCPA Policy And Ensure Uniformity Of Enforcement In Mais v. Gulf Coast Collection Bureau
Courts that have confronted the application of the "prior express consent" requirement of the Telephone Consumer Protection Act, see 47 U.S.C. § 227 – a.k.a., the TCPA – have in the main taken their cues from and adhered to the policy set by the Federal Communications Commission ("FCC") – the federal agency charged with implementing the statute. Recently, however, two federal district courts 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 respectively 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 under the TCPA for contacting consumers through prerecorded calls.[1] These courts declined to follow a 2008 declaratory ruling from the FCC 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 communications policy under the statute that it is charged to administer with the predictable result of creating a cloud of uncertainty for those who must comply with the TCPA across 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 district courts. Mais, 2014 U.S. App. LEXIS at *2. This ruling represented a victory for the FCC, which filed a brief amicus curiae arguing that the district court did not have jurisdiction to review the agency's 2008 ruling. Second, the Eleventh Circuit also rejected the district court's holding that the 2008 ruling did not apply to medical debt calls, finding the FCC did not draw a "meaningful distinction" between retail purchasers and medical patients filling out admission forms. Mais, 2014 U.S. App. LEXIS at *27.
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