In Hill v. Homeward Residential, Inc., No. 2:13–CV–00388, 2015 WL 4978464 (6th Cir. August 21, 2015), the 6th Circuit Court of Appeals has expressed a willingness to overturn the FCC's declaratory ruling defining "express consent" under the TCPA.
Other Circuits have expressed the same willingness.
They just need some good plaintiff's bar attorneys to bring the case!
CLAY, Circuit Judge, concurring. I join the majority opinion in full. I write separately
only to highlight the limited scope of the primary question presented in today’s case. Plaintiff
Stephen Hill challenges the district court’s interpretation of the Federal Communications
Commission (FCC) regulations concerning the circumstances under which a debtor gives a
creditor “prior express consent” to call his cellphone. Hill does not challenge the FCC’s
interpretation of 47 U.S.C. § 227(b)(1)(A)(iii) as promulgated in paragraphs 9 and 10 of In the
Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991,
23 F.C.C. Rcd. 559 (2008).
I agree with the majority that “a debtor does not need to give his consent to automated
calls specifically” because the FCC regulations say as much. Majority Op. at 8. However, I
express serious doubt as to whether the FCC correctly interpreted the statute when it
promulgated its regulations. The notion that a debtor gives his prior express consent to receiving
calls from a creditor using an auto-dialer or prerecorded voice simply by giving his cellphone
number to the creditor strikes me as contrary to both the plain language of the statute and the
underlying legislative intent. See id. at 2 (quoting Mims v. Arrow Fin. Servs., LLC, 132 S. Ct.
740, 744 (2012)). But because the plaintiff in this case does not challenge the FCC regulation
itself, we do not have occasion to pass judgment on it. I concur in the majority opinion on the
understanding that such a challenge is not foreclosed in a future case.