On Friday, the Sixth Circuit declared that a debtor who provides a cellphone number to a creditor has consented to receiving calls, and the creditor does not violate the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, by directing repeated, automated calls to his cellphone seeking payment.
In the case of Hill v. Homeward Residential, Inc., No. 2:13–CV–00388, 2015 WL 4978464 (6th Cir. August 21, 2015), the Sixth Circuit affirmed the lower court jury decision, determining that a person gives "prior express consent" when he gives a creditor his cellphone number in connection with a debt.
Mr. Stephen Hill brought suit in federal court, claiming he received 482 unsolicited calls to his cellphone from his creditor, defendant Homeward Residential, Inc. ("Homeward"), seeking to recover payment for his mortgage. Mr. Hill alleged that these repeated calls violated the TCPA. The TCPA, enacted in 1991, restricts telephone solicitations, prohibits the use of automated telephone dialing systems to place calls to a cellphone without an individual's "prior express consent," and provided for statutory damages of $500 per violation.
Originally, Mr. Hill supplied his home phone number to a lender in connection with a mortgage he obtained in 2003. Three years later he canceled his home phone line and provided his mortgage company, now Homeward, with his cellphone number as his primary phone number. Mr. Hill fell behind on his mortgage and worked out a loan modification with Homeward, where he again provided his cellphone number. When Mr. Hill failed to make timely mortgage payments after the modification, Homeward called his work number in an effort to collect payment. In July 2010, Mr. Hill told Homeward not to call him at work, instructing Homeward to call his cellphone instead, the only remaining phone number Homeward had to reach Mr. Hill.
The case went to a jury trial to determine, among other things, "whether Hill offered his cellphone number to Homeward, or whether Homeward ... called Hill outside the scope of his consent." For its jury instructions, the district court relied on the definition of "prior express consent" promulgated by Federal Communications Commission ("FCC") rulings, which states that a creditor does not violate the TCPA when it calls a debtor who has "provided [his number] in connection with an existing debt." The jury found in favor of Homeward and Mr. Hill appealed.
On appeal, the Sixth Circuit deemed the district court's definition of "prior express consent" was proper, adding that while the FCC had not explicitly addressed the issue, a debtor consents to calls about "an existing debt" when he gives his number "in connection with" that debt, as Mr. Hill did in the instant case. By providing his cellphone number, in writing, in connection with his credit application, the debtor grants general consent to the creditor to call his cellphone, including automated calls, as part of an attempt to collect on the debt.
A copy of the court's opinion in Hill v. Homeward Residential, Inc. can be found here.
This case follows the Sixth Circuit's recent decision in Sandusky Wellness Center v. Medco Health Solutions, 788 F.3d 218 (6th Cir. 2015), in which the court found that unsolicited faxes intended strictly for informational purposes were not "advertisements" and were therefore not actionable under the TCPA. You can read more about this case in our blog post here.
The Eleventh Circuit reached a similar conclusion in two other cases regarding the TCPA: see Murphy v. DCI Biologicals Orlando LLC, No. 14-10414, 2015 WL 4940800 (August 20, 2015), and Mais v. Gulf Coast Collection Bureau, Inc., 768 F. 3d 1110 (11th Cir. 2014), holding that callers had "prior express consent" from individuals who provided cellphone numbers on their hospital admission or medical donor forms.
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