Sixth Circuit Clarifies TCPA’s Prior Express Consent

The Sixth Circuit has clarified what constitutes “prior express consent” in connection with debt collection. In Hill v. Homeward Residential, Inc., File No. 15a0201p.06, 2015 U.S. App. LEXIS 14703 (6^th Cir. Aug. 21, 2015) the consumer sued its mortgage company under the TCPA for calls made to his cell phone. The question presented to the court was whether Hill provided Homeward Residential with prior express consent. The debt at issue was originated by another mortgage company and in connection with obtaining the mortgage, Hill provided a home number and a work number. Ultimately, the home line was cancelled and the mortgage was transferred to Homeward Residential. Over the course of his dealings with Homeward Residential, Hill provided his cell number on a number of occasions, including: (1) by notifying Homeward Residential that his primary phone number had changed and providing his cell number; (2) by listing his cell number on the loan modification documents; and (3) by listing his cell number on a number of loss mitigation documents.

The court determined that Hill provided prior express consent.  The court additionally endorsed the FCC’s clarification of prior express consent in the debt context and the trial court’s jury instruction on the same which read as follows:

“’Prior express consent’ means that before Defendant made a call to Plaintiff’s cellular telephone number, Plaintiff had given an invitation or permission receive calls to that number.

Autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ‘prior express consent’ of the called party.”

In doing so, the court noted consent does not have to be given at the outset of the transaction, but can be provided during the transaction. Therefore, any “autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the ‘prior express consent’ of the called party.” Slip Op. at 7 (internal citations omitted). Importantly, the court also held that the debtor does not have to give his consent to automated calls specifically and general consent to being called on the cell phone will suffice.