In Hill v. Homeward Residential, here, the Court of Appeals for the Sixth Circuit rejected the contention that consent to be called on one’s cellular telephone can only be given at the inception of the transaction and not during the life of the transaction. “The Telephone Consumer Protection Act prohibits companies from making automated calls to a person’s cellphone without that person’s prior express consent. We must primarily decide whether a person gives his “prior express consent” when he gives his creditor his cellphone number in connection with a debt he owes. In line with the agency in charge of enforcing the Act, we conclude that his constitutes “prior express consent” to be called on that number about the debt. Because the district court’s decision reflects that rule, and because the court did not commit any other error, we affirm”. The Sixth Circuit explained why:
Stephen Hill claims he received well over a hundred of these prohibited phone calls from his creditor, Homeward Residential, Inc., in connection to a debt he owed. His story began in 2003 when he obtained a mortgage loan from Jordan West Companies. He provided his home and work numbers on that loan. Three years later, though, he cancelled his home phone and replaced it with a cellphone. After his loan transferred to Homeward, he contacted the company to advise it that his primary phone number had changed. Homeward then replaced Hill’s obsolete home number with his cellphone number in its records. Hill knew that this number would be used if Homeward needed to reach him about his mortgage. . . This language [in the jury instruction Ed.] adequately reflects the legal definition of prior express consent promulgated by the Federal Communications Commission (FCC). It was taken directly from the FCC’s rulings—which shape the law in this area, see 47 U.S.C. § 227(b)(2) (charging the FCC with prescribing rules and regulations under the Act). The instructions paraphrased the FCC’s original definition on “prior express consent”—that a party who gives an “invitation or permission to be called at [a certain] number” has given its express consent with respect to that number. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (1992). And the instructions quote verbatim the FCC’s later clarification of that definition in the debtor–creditor context—that a creditor doesn’t violate the Act when it calls a debtor who has “provided [his number] in connection with an existing debt.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 564 (2008). A court does not misstate the law when it simply states the law. This jury instruction was proper.
The Sixth Circuit rejected the contention that consent can only be given at the initiation of the transaction and not during the life of the transaction.
Although the FCC has yet to explicitly address this issue, see FCC’s Letter Brief, 2014 WL 3612689 at *10–*11, courts interpreting the excerpt agree with our reading. A debtor consents to calls about “an existing debt” when he gives his number “in connection with” that debt, 23 F.C.C. Rcd. at 564—including after his initial signing of the loan. See Moore v. Firstsource Advantage, LLC, No. 07-CV-770, 2011 WL 4345703, at *10 (W.D.N.Y. Sept. 15, 2011). While debtors may “[t]ypically” give their cellphone number “as part of a credit application” at the beginning of the debtor–creditor relationship, see 23 F.C.C. Rcd. at 565 n.36, it doesn’t have to be that way. Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1122 (11th Cir. 2014); see, e.g., Sartori v. Susan C. Little & Associates, P.A., 571 F. App’x 677, 683 (10th Cir. 2014) (holding that the debtor gave his prior express consent, even though he didn’t give his number until one year after debt was incurred). Unsurprisingly, then, a person gives his “prior express consent” under the statute if he gives a company his number before it calls him.