Caveat Vendor

TCPA Update: Eleventh Circuit Rejects District Court’s Attempt to Review the FCC’s Consent Policy for Debt Collection Calls

October 08, 2014

Matt Gibson

Sometimes weather looks threatening, but the rain never falls.  Such is the case with our recent post discussing a cluster of cases addressing whether federal district courts have the authority to consider the validity of the FCC’s debt collection consent policy under its Telephone Customer Protection Act rules.

In last month’s post, we noted that the Eleventh Circuit was considering an appeal of a district court ruling that took the unusual step of refusing to defer to the FCC’s 2008 Declaratory Ruling, in which the FCC determined that a consumer’s decision to provide a company with his or her mobile telephone number can be treated as “express consent” under the TCPA for the purpose of later autodialed or pre-recorded debt collection calls.   Following our post on the Mais v. Gulf Coast Collection Bureau appeal, the Eleventh Circuit released a decision in which it reversed the trial court’s grant of partial summary judgment to Mais on the basis that “[b]y refusing to enforce the FCC’s interpretation [in the 2008 Declaratory Ruling], the district court exceeded its power.” The court further noted that “Gulf Coast is entitled to summary judgment precisely because the calls to Mais fell within the TCPA prior express consent exception as interpreted by the FCC.”

In the same post, we also referenced a decision in the Southern District of New York, which adopted the trial court’s analysis in Mais in a class certification ruling in Zyburo v. NCSPlus.  After our post was published, NCSPlus filed with the Second Circuit an interlocutory appeal, which remains pending.
Finally, we also referenced the fact that the Supreme Court was considering whether to hear an appeal of a Sixth Circuit decision addressing the general question of a federal district court’s to consider the validity of the FCC’s TCPA regulations.  Yesterday, the Supreme Court denied the petition for certiorari and declined to review the case.  As a result, the Sixth Circuit’s decision – which found that district court lacked jurisdiction to review the FCC’s 2008 Declaratory Ruling – stands.
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