This article previously appeared on the Maurice Wutscher Consumer Financial Services Blog and is republished here with permission.

The U.S. Court of Appeals for the Ninth Circuit recently held that calls from a survey company that received the called party’s contact information through an intermediary did not violate the federal Telephone Consumer Protection Action (TCPA) because the called party provided prior express consent.

In so ruling, the Court held that “a party that receives an individual’s phone number indirectly may nevertheless have consent to call that individual,” and it did not matter that the defendant, rather than the entity that actually obtained the called party’s consent, placed the calls.

A copy of the opinion in Fober v. Management and Technology Consultants, LLC is available at:  Link to Opinion.

The plaintiff enrolled in an insurance plan with an insurance provider (“insurer”). Upon enrolling, the plaintiff completed an enrollment form and provided her phone number.  The relevant terms of the enrollment form are as follows:

THE USE AND DISCLOSURE OF PROTECTED HEALTH INFORMATION:  I acknowledge and understand that health care providers may disclose health information about me . . . to [insurer] entities . … [Insurer] entities … may disclose this information for purposes of treatment, payment and health plan operations, including but not limited to, utilization management, quality improvement, disease or case management programs.

Thereafter, the insurer assigned the plaintiff to a medical group and selected a doctor from the group to serve as her primary physician.  The group was an affiliated medical group of a provider network the insurer utilized.

The provider network had a contract with the defendant to conduct patient satisfaction surveys and quality-of-care analyses regarding the provider network’s affiliated medical groups.  Another of the provider network’s affiliated medical groups (“manager”) managed the defendant’s operations on behalf of the group.

The plaintiff visited the doctor’s office twice.  During the first visit, the plaintiff completed an intake form and listed her phone number again.  The manager received the plaintiff’s contact information directly from the provider network and passed the information along to the defendant.  The defendant was given the plaintiff’s name, contact information, treating physician’s name, and date of office visit so the defendant could conduct quality assurance survey calls.  The defendant called the plaintiff several times to discuss the quality of her experience with the doctor.

The plaintiff brought suit alleging the defendant violated the TCPA, 47 U.S.C. § 227, by calling her.  The trial court granted the defendant’s motion for summary judgment finding the plaintiff had given “prior express consent” under 47 U.S.C. § 227(b)(1) when she submitted the enrollment form.  The plaintiff appealed.

The issue on appeal was whether the plaintiff gave “prior express consent” to receiving the defendant’s calls.

As you may recall, the TCPA prohibits “any person within the United States” from using an “automatic telephone dialing system or an artificial or prerecorded voice” to call a phone number assigned to a “cellular telephone service.”  47 U.S.C. § 227(b)(1).  However, the statute excepts calls made with a recipient’s “prior express consent.” Id.

The Ninth Circuit noted that, in the Federal Communication Commission’s view, the very act of turning over one’s phone number demonstrates a willingness to be called about certain things, barring instructions to the contrary. Citing In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (1992).

However, the Court explained that merely providing a phone number does not evince a willingness to be called for any reason.  The “transactional context matters in determining the scope of a consumer’s consent to contact.”  Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1045–46 (9th Cir. 2017).  Thus, “to fall within the ‘prior express consent’ exception, a call must relate to the reason why the called party provided his or her phone number in the first place.” Id.

The Ninth Circuit further explained that the “scope of consent must be determined upon the facts of [the] situation [in which the person gave consent].”  In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7990 (2015).  Thus, the analysis under the FCC’s rulings turns on whether the called party granted permission to be called regarding a particular topic, not on how the calling party received the number.  Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1123–24 (11th Cir. 2014).

Therefore, the Court held, “a party that receives an individual’s phone number indirectly may nevertheless have consent to call that individual.”

The Ninth Circuit noted that the plaintiff provided her number on the enrollment form and agreed that the provider could disclose her information “for purposes of treatment, payment and health plan operations, including but not limited to, utilization management, quality improvement, disease or case management programs. (Emphasis added.)”  The Court found that this is exactly what happened.  The provider network, albeit through an intermediary (manager), provided the defendant with the plaintiff’s phone number.  The defendant then called the plaintiff for a purpose expressly described on the enrollment form, i.e. to assess the quality of the plaintiff’s healthcare.

The Court found that the plaintiff consented to receive calls meant to improve the quality of her health plan by submitting the enrollment form.  The Court further found that the calls the plaintiff received from the defendant, to assess her satisfaction with the doctor’s services, “were undoubtedly made with the purpose of improving the quality of Plaintiff’s care.”  Thus, the Court held, the calls fell within the scope of the consent the plaintiff gave.

The Ninth Circuit rejected the plaintiff’s argument that her consent only extended to calls concerning the quality of the insurer’s services, not calls concerning the quality of the doctor’s services.  The Court noted that the language in the enrollment form was broad and the plaintiff “authorized calls pertaining to the operation of her health plan and, relatedly, to the quality of her health plan.”  The calls at issue were intended to measure whether the plaintiff’s experience with the doctor assigned through the provider network’s health plan was satisfactory, and therefore, were related to improving the quality of the plaintiff’s health plan generally.

The Court further explained that it did not matter that the defendant, rather than the insurer, placed the phone calls, as the “FCC’s rulings in this area make no distinction between directly providing one’s cell phone number . . . and taking steps to make that number available through other methods, like consenting to disclose that number to other entities for certain purposes.”  Baisden v. Credit Adjustments, Inc., 813 F.3d 338, 346 (6th Cir. 2016).

The Ninth Circuit explained that the plaintiff “took steps” to make her number available to the defendant by authorizing the insurer to disclose her phone number for certain purposes.  Thus, the plaintiff authorized someone other than the insurer to make calls for those purposes.

The Court also rejected the plaintiff’s argument that the calls at issue fall outside the “prior express consent” exception because the defendant did not demonstrate the calls were made on the insurer’s behalf.

The Ninth Circuit explained that the TCPA’s purpose is to curb calls that a person does not expect to receive.  Here, the plaintiff authorized “callers to whom [insurer] disclosed her information to make a particular type of call — one relating to the quality of Plaintiff’s healthcare.” Thus, the Court held that the defendant fell within the group of permissible callers and the calls it placed were in the category of calls the plaintiff agreed to receive.

The Court again cited Baisden v. Credit Adjustments, Inc., 813 F.3d 338, 346 (6th Cir. 2016) as illustrative.  There, as here, the dispositive factor was the scope of contact the plaintiff authorized.

Thus, the Ninth Circuit found the plaintiff granted the insurer broad authority to disclose her information for certain purposes, including quality assurance, and therefore, by completing the enrollment form, the plaintiff gave “prior express consent” to receive the calls at issue from the defendant.

Accordingly, the Ninth Circuit affirmed the ruling of the trial court granting summary judgment in favor of the defendant.

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