The Telephone Consumer Protection Act (TCPA), which, as we’ve reported, has been litigated a fair amount in the Sixth Circuit in recent years, was under scrutiny again last week in Hill v. Homeward Residential, Inc.
As the court outlined, the case primarily concerned what “prior express consent” means in the context of the TCPA and whether a debtor’s provision of his cellular telephone number to his creditor can prevent the debtor from recovering under the TCPA for unwanted calls related to his debt. Over the course of a decade, Stephen Hill provided his cellphone number to Homeward’s predecessor in interest and eventually to Homeward in connection to the mortgage he owed Homeward. After falling behind on the mortgage, Hill allegedly received 482 calls from Homeward about the debt from 2009 to 2013.
Hill sued Homeward for these calls under the TCPA, which prohibits the use of auto-dialers without prior express consent, and provides a hefty minimum penalty of $500 per violation. Relying on the FCC’s rules promulgated under the TCPA, the district court instructed the jury that “autodialed . . . calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt” do not violate the Act as they are made with the “prior express consent” of the debtor. The jury returned a verdict for Homeward, and a unanimous Sixth Circuit affirmed. Hill attempted to argue that only a number provided when the debt was incurred could constitute express consent, but the court pointed out that no such language exists in the TCPA. Further, the court reasoned that the FCC’s rules in this regard clarify that a creditor may call a number provided by the debtor only in connection with the debt (not other topics), but that the provision of the number at any time constitutes consent to live and automated calls regarding the debt.
Judge Clay wrote separately to emphasize that the decision did not outright affirm the FCC’s rules on this issue, nor did it foreclose a later challenge to what he proposed is a dubious interpretation of the TCPA by the FCC.