Those of you who follow consumer law are well aware of the long awaited Decisions from the 7th Circuit in Thrasher-Lyon v. CCS Commercial LLC, 2012 WL 5389722, (N.D. Ill. 2012), and the 11th Circuit in Mais v. Gulf Coast Collection Bureau, Inc., No. 11-61936-CIV SCOLA, 2013 WL 1899616 (S.D.Fla., May 8, 2013).
The offending debt collectors are appealing the two District Court Rulings that state that the FCC's interpretation/definition of "prior express consent" runs contrary to the plain language of the TCPA.
The District Courts found that the FCC had written into the statute an additional exception for “implied consent” and not just as the plain language of the statute states "express consent" – one that Congress did not include.
The Courts reasoned that while it may be sensible to presume that an individual, in providing a cell phone number on a credit application, consents to be called at that number by the creditor, such consent is “implied” through the individual’s conduct – that is, his act of writing down his number on the application. He has not directly, clearly, and unmistakably stated that the creditor may call him, and so he has not given “express consent.”
Thus, the District Courts found that the FCC’s construction was inconsistent with the statute’s plain language because it impermissibly amends the TCPA to provide an exception for “prior express or implied consent.”
If the 7th and 11th Circuits follow the plain language of the statute (as they are required to do) the day these Decisions come out is going to be a very good day indeed!