Another Federal Court Grants Express Consent to Collector in TCPA Case

Ronald Canter

A federal judge in Maryland this week sided with a collection agency in a TCPA case involving the question of “prior express consent” to call a cell phone number that was provided by the consumer. The decision mirrors another recent case in a trend that shows judges moving away from the controversial Mais decision.

In Penn v. NRA Group, LLC (Case No. 1:13-CV-00785-JKB), decided July 1, 2014, the United States District Court for the District of Maryland held that the “prior express consent” clause of  the Telephone Consumer Protection Act permits a debt collector to call a debtor’s cell phone where a patient/ debtor provided the cell phone number to a hospital at the time medical treatment was sought.

NRA Group, LLC, the third party collector who called the debtor’s cell phone to collect the overdue medical bill, first argued that the calls were not made by an Automated Telephone Dialing System (ATDS) as defined by the TCPA.  NRA Group also advanced the alternative argument that regardless of whether the calls were made by an ATDS, Mr. Penn gave prior express consent to make the calls when he provided his cell phone number at the time he received medical treatment at Harbor Hospital in Baltimore, Maryland.

The Court found it unnecessary to decide whether or not the calls were made by an ATDS because the undisputed facts established that the patient provided his phone number to the hospital.  The Court held it was bound by the Federal Communication Commission’s interpretation of “prior express consent”, following a number of other decisions holding that this FCC order is binding on district courts.

The opinion explained that the contrary holding in Mais v. Gulf Coast Collection Bureau, Inc., 944 F.Supp.2d 1226 (S.D.Fla. 2013), certify, interloc. app. granted has  been “justly criticized because the District Court failed to recognize the exclusive statutory authority given by Congress to the courts of appeals to review FCC orders”. Penn at p. 6.

The Court relied on decisions from other courts including Chavez v. Advantage Group, 959 F.Supp.2d 1279 (D.Colo. 2013) and the recently decided Hudson v. Sharp Healthcare, 2014 WL 2892290 at *5 (S.D.Cal. June 25, 2014) in granting judgment for the debt collector on all TCPA claims.

Ronald S. Canter of The Law Offices of Ronald S. Canter, LLC represented NRA Group in this case.

Read the full decision.

Join Canter and other ARM legal experts at ARM-U (October 14-15 in Washington, DC) for a panel discussion of what the regulatory future looks like for debt collectors and how agencies can prepare for the future right now. Canter’s firm recently announced an Of Counsel relationship with Bedard Law Group.

NRA Group, LLC (d/b/a National Recovery Agency) is a women-owned business enterprise specializing in Revenue Recovery Solutions. The company has more than 250 employees at its two business operation centers. NRA Group has the following certifications: WBE; SSAE 16 Type II (Compliant); ACA International’s PPMS; and PCI-DSS. For seven consecutive years the company’s growth has been recognized in the Inc. 5000.