Zachary Baisden v. Credit Adjustments, Inc. , 813 F.3d 338 ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0037p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ZACHARY BAISDEN and BRENDA L. SISSOKO, ┐
Plaintiffs-Appellants, │
│
│
v. │
> No. 15-3411
│
CREDIT ADJUSTMENTS, INC., │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:13-cv-00992—Edmund A. Sargus, Jr., Chief District Judge.
Argued: December 9, 2015
Decided and Filed: February 12, 2016
Before: BATCHELDER and GRIFFIN, Circuit Judges; and CARR, District Judge.*
_________________
COUNSEL
ARGUED: Daniel R. Freytag, FREYTAG CARPENTER LLC, Columbus, Ohio, for
Appellants. Brian M. Spiess, MONTGOMERY, RENNIE & JONSON, Cincinnati, Ohio, for
Appellee. ON BRIEF: Daniel R. Freytag, Kendra L. Carpenter, FREYTAG CARPENTER
LLC, Columbus, Ohio, for Appellants. Brian M. Spiess, George D. Jonson, MONTGOMERY,
RENNIE & JONSON, Cincinnati, Ohio, for Appellee.
*
The Honorable James G. Carr, Senior United States District Judge for the Northern District of Ohio, sitting
by designation.
1
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 2
_________________
OPINION
_________________
GRIFFIN, Circuit Judge. This putative class action arises out of Credit Adjustments,
Inc.’s attempts to collect a little over one thousand dollars of medical debt incurred by Zachary
Baisden and Brenda Sissoko (“plaintiffs”). Plaintiffs contend Credit Adjustments violated the
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii), when it placed
debt collection calls to their cell phone numbers using an “automatic telephone dialing system”
and an “artificial or prerecorded voice.” Credit Adjustments neither disputes that it placed calls
to their cell phone numbers nor that it used the technologies as alleged. Rather, Credit
Adjustments contends that by virtue of plaintiffs’ provision of their cell phone numbers to the
hospital where they received medical care, plaintiffs gave their “prior express consent” to receive
such calls and, thus, it did not violate the TCPA as interpreted by the Federal Communications
Commission (“FCC”). The district court entered summary judgment for Credit Adjustments on
this basis, and we affirm.
I.
Plaintiffs received medical care from Mount Carmel Hospital in Columbus, Ohio.
Consultant Anesthesiologists provided anesthesiology services to each at Mount Carmel
Hospital, billing Baisden $850.00 in 2011, and Sissoko $273.42 in 2009 and $171.52 in 2011.
After plaintiffs did not pay these bills, Consultant Anesthesiologists transferred these delinquent
accounts to Credit Adjustments. Credit Adjustments called plaintiffs’ cell phone numbers,
despite never having received their contact information directly from them. Instead, Credit
Adjustments received the numbers from Consultant Anesthesiologists, which received them from
Mount Carmel Hospital.
As part of their admission for services to Mount Carmel Hospital, Baisden and Sissoko
signed Patient Consent and Authorization forms covering “all medical and surgical care.”
Baisden’s authorization provides, in pertinent part, as follows:
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 3
2. Release of information
I understand Mount Carmel may use my health information for many reasons as
needed:
- insurance information
- billing and payment
- discharge planning and other health care providers
- quality improvement reviews
- Medicare, Medicaid, and other government programs
- Bureau of Workers’ Compensation
- my employer if I am injured on the job
- medical and nursing education programs
- public health reporting
- legal, regulatory, and accreditation agencies
Mount Carmel may receive or release my health information, whether written,
verbal, fax, or electronic using secured internet web sites.
The above also allows Mount Carmel to release medical information about
drug and/or alcohol abuse, HIV (Human Immunodeficiency Virus) testing or
HIV infection related conditions. This authorization shall remain valid for
one (1) year.
3. Acknowledgement of notice of privacy practices
I have received or been offered a copy of Mount Carmel’s Notice of Privacy
Policies. I have had a chance to object to the use or release of my information to
the hospital directory or to my family or persons involved in my care.
(Emphasis in italics added.) Sissoko signed two different forms. In 2011, she agreed to the same
terms set forth for Baisden. The 2009 form, however, is different and provides in pertinent part
as follows:
2. Release of information
I understand Mount Carmel may use my health information for a range of
purposes including insurance/payment eligibility verification; billing and
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 4
collecting moneys due from me, private and public payors or their agents
including insurance companies, managed care entities, my employer, state and
federal government programs and the Bureau of Workers’ Compensation;
obtaining pre-admission or continued length of stay certification; quality of care
assessment and improvement activities; evaluating the performance or
qualifications of physicians and health care workers; conducting medical and
nursing training and education programs; conducting or arranging for medical
review and audit services; ensuring compliance with legal, regulatory and
accreditation requirements, performance of autopsies, and; public health
activities. I authorize Mt. Carmel to receive or release my health information,
whether written, verbal, electronic including secured internet web sites or by
facsimile to such employees, agents or third parties as are necessary for these
purposes and to companies who provide billing services for physicians or other
providers involved in my medical care.
I understand that complete, accurate health information must be readily available
for my medical care. Therefore, I authorize Mount Carmel to release health
information to my family physician, referring physician or agency(ies) in order to
facilitate continuity of care. I understand that the information shared with health
care professionals as a result of this authorization will remain confidential.
The preceding authorizations for release of medical information include
authorization for the release of information regarding drug and/or alcohol abuse,
HIV (Human Immunodeficiency Virus) testing or HIV infection related
conditions. This authorization shall remain valid for one (1) year.
3. Acknowledgement of notice of privacy practices
I acknowledge that I have received or been offered a copy of Mount Carmel’s
Notice of Privacy Practices and have had a chance to object to the use or
discharge of my information for directory, disaster relief or to provide information
to family or persons involved in my care.
(Emphasis added.)
Plaintiffs allege Credit Adjustments violated the TCPA by using an “automatic telephone
dialing system” and an “artificial or prerecorded voice” to place calls to their cell phone numbers
because they had not given their numbers to Credit Adjustments, or the creditor on whose behalf
it was calling, Consultant Anesthesiologists. The district court granted summary judgment in
favor of Credit Adjustments, reasoning that plaintiffs had given their “prior express consent” by
way of providing their contact information to Mount Carmel Hospital and therefore were
precluded from bringing claims under the TCPA. Plaintiffs timely appeal.
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 5
II.
A.
The TCPA regulates the use of certain technology when placing calls to consumers.1 It
makes it unlawful for any person to place a call “using any automatic telephone dialing system or
an artificial or prerecorded voice” to a cell phone number without obtaining the “prior express
consent of the called party.” 47 U.S.C. § 227(b)(1)(A)(iii). “[T]he FCC has interpretive
authority over the [TCPA],” Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 467 (6th Cir.
2010), and its “rulings . . . shape the law in this area[.]” Hill v. Homeward Residential, Inc.,
799 F.3d 544, 551 (6th Cir. 2015). Because this is not a direct agency appeal challenging the
validity of the FCC’s interpretations, we lack jurisdiction to consider whether the FCC’s
interpretations regarding “prior express consent” are consistent with the TCPA.2 See Imhoff Inv.,
L.L.C. v. Alfoccino, Inc., 792 F.3d 627, 637 (6th Cir. 2015) (“[T]he Hobbs Act confers
jurisdiction on Courts of Appeal to review FCC regulations only by direct appeal from the
FCC.”). Accordingly, this case turns only on whether the district court properly granted
summary judgment on the basis that Credit Adjustments had “prior express consent” to call
plaintiffs’ cell phone numbers, which we review de novo. Thomas M. Cooley Law Sch. v.
Kurzon Strauss, LLP, 759 F.3d 522, 526 (6th Cir. 2014).
B.
The FCC has provided extensive guidance regarding what constitutes “prior express
consent,” and four of its interpretations are particularly pertinent. First, in 1992, the FCC
interpreted “prior express consent” to include a form of implied consent, reasoning in a Report
and Order that “persons who knowingly release their phone numbers have in effect given their
invitation or permission to be called at the number which they have given, absent instructions to
the contrary.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of
1991, 7 FCC Rcd. 8752, 8769 (1992) (footnote omitted) (the “1992 Order”). In support of this
1
In this regard, it is distinct from those consumer laws regulating the content of such calls, such as the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
2
We note the FCC’s broad interpretations regarding “prior express consent” are not without their critics.
See, e.g., Hill, 799 F.3d at 553–54 (Clay, J., concurring).
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 6
construction, the FCC relied upon the TCPA’s legislative history, “noting that in such instances,
‘the called party has in essence requested the contact by providing the caller with the telephone
number for use in normal business communications.’” Id. at 8769 n.57 (citation omitted). The
FCC was careful to distinguish between these permissible contacts where a party “call[s] a
number which was provided as one at which the called party wishes to be reached” and
impermissible contacts where a party learns of a telephone number in another way, such as by
capturing a telephone number via Caller ID. Id. at 8769. The essence of this distinction is that in
contrast to the former, the latter involves a situation where “the caller cannot be considered to
have given an invitation or permission[.]” Id. See also Hill, 799 F.3d at 551 (“[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.”) (alteration in original) (citing the 1992 Order).
Second, the FCC extended this general proposition in 2008 to cell phone numbers:
“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 the Matter of Rules & Regulations Implementing
the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 559 (2008) (footnote omitted) (the
“2008 Ruling”). It gave the following insight on how this manifests:
We conclude that the provision of a cell phone number to a creditor, e.g., as part
of a credit application, reasonably evidences prior express consent by the cell
phone subscriber to be contacted at that number regarding the debt. . . . We
emphasize that prior express consent is deemed to be granted only if the wireless
number was provided by the consumer to the creditor, and that such number was
provided during the transaction that resulted in the debt owed.
Id. at 564–65 (footnote omitted). The 2008 Ruling also “conclude[d] that the creditor should be
responsible for demonstrating that the consumer provided prior express consent.” Id. at 565.
That is, “[s]hould a question arise as to whether express consent was provided, the burden will be
on the creditor to show it obtained the necessary prior express consent.” Id. Finally, the
2008 Ruling holds that calls placed by a debt collector (like Credit Adjustments) on behalf of a
creditor (like Consultant Anesthesiologists) “are treated as if the creditor itself placed the call.”
Id. (footnote omitted).
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 7
Third, in its 2014 GroupMe Declaratory Ruling, the FCC held “that the TCPA does not
prohibit a caller . . . from obtaining the consumer’s prior express consent through an
intermediary[.]” Matter of GroupMe, Inc./Skype Commc’ns S.A.R.L Petition for Expedited
Declaratory Ruling Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 29
FCC Rcd. 3442, 3444 (2014) (“GroupMe”). Extending the logic of the 1992 Order and the
2008 Ruling to intermediaries, the FCC noted the TCPA’s ambiguity as to how consent need be
obtained: “While the TCPA plainly requires a caller to obtain such consent, both the text of the
TCPA and its legislative history are silent on the method, including by whom, that must be
done.” Id. (footnote omitted). But the FCC emphasized that “prior express consent” is not so
narrow as to only require consent between the parties:
Although the [2008 Ruling] did not formally address the legal question of whether
consent can be obtained and conveyed via an intermediary, . . . [it] did make clear
that consent to be called at a number in conjunction with a transaction extends to
a wide range of calls “regarding” that transaction, even in at least some cases
where the calls were made by a third party.
Id. at 3446. Thus, consent may be obtained by and conveyed through an intermediary. Id. at
3444–47.
Fourth and finally, the FCC affirmed its GroupMe decision on July 10, 2015. See In the
Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd.
7961 (2015) (“2015 Order”). The FCC again stressed that there is no one way to provide
consent: “[N]either the Commission’s rules nor its orders require any specific method by which
a caller must obtain such prior express consent . . . [and] the scope of consent must be
determined upon the facts of each situation[.]” Id. at 7990 (footnotes omitted). In reiterating
that callers may “obtain[] a consumer’s prior express consent through an intermediary[,]” the
FCC stated that “[i]mportantly, . . . an intermediary can only convey consent that has actually
been obtained, and cannot provide consent on behalf of another party.” Id. at 7990–91 (footnote
omitted). Put differently, the context of the consent provided is critical. See Hill, 799 F.3d at
552; compare, e.g., Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1308 (11th Cir.
2015) (plaintiff gave prior express consent when he provided his cell phone number when asked
for his contact information before donating blood), with Nigro v. Mercantile Adjustment Bureau,
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 8
LLC, 769 F.3d 804, 806–07 (2d Cir. 2014) (plaintiff did not give prior express consent when he
gave his cell phone number to a power company to discontinue his mother-in-law’s service after
her death, and thus not in the context of a transaction resulting in a debt).
III.
Baisden and Sissoko contend the FCC’s rulings do not apply where, as here, a consumer
provides his cell phone number to one entity during the course of a business relationship, which
then provides that number to a related entity, which then provides that number to a debt collector
to call on its behalf. Plaintiffs focus on the 2008 Ruling’s statement that “prior express consent
is deemed to be granted only if the wireless number was provided by the consumer to the
creditor.” 2008 Ruling, 23 FCC Rcd. at 564 (emphasis added). The essence of their argument is
that in order for the FCC’s rulings to apply, plaintiffs needed to provide their cell phone numbers
to their creditor, Consultant Anesthesiologists, which they did not do. We reject this narrow
reading of the FCC’s interpretations.
We recently (and “[u]nsurprisingly”) held in Hill that “a person gives his ‘prior express
consent’ under the [TCPA] if he gives a company his number before it calls him.” 799 F.3d at
552. There, we emphasized that the context in which a debtor provides his cell phone number
matters: the concept of “prior express consent” “ensures that a debtor who gives his number
outside the context of the debt has not given his consent to be called regarding the debt.” Id.
Importantly, we noted that while debtors “typically give their cellphone number as part of a
credit application at the beginning of the debtor-creditor relations, it doesn’t have to be that
way.” Id. (alterations and internal citations omitted). As but one example, we approvingly cited
Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir. 2014), an Eleventh Circuit
decision that the district court in this case found dispositive. Indeed, Mais is directly on point,
indistinguishable from the present facts, and persuasive regarding how we should apply the
FCC’s “prior express consent” interpretations.
In Mais, the plaintiff sought emergency medical treatment from a hospital. Id. at 1113.
As part of the admissions process, the plaintiff’s wife provided the hospital with the plaintiff’s
cell phone number. Id. The admissions forms, signed by the plaintiff’s wife, contained a variety
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 9
of disclosures regarding what the hospital may do with the plaintiff’s “health information,”
including disclosing the information to its “business associates” (i.e., its independent physicians)
and for the purpose of “bill[ing] and collect[ing] payment.” Id. at 1114. After the plaintiff failed
to pay for radiology services provided by a physician’s group to plaintiff while at the hospital,
the group transferred his account information—including his cell phone number, which it
received from the hospital—to a debt collection company. Id. The debt collection company
used automated technology to place calls to plaintiff’s cell phone number, and the plaintiff
brought a purported class action under the TCPA. Id.The Eleventh Circuit rejected the same argument plaintiffs present here: that the
2008 Ruling applies only to situations where a consumer provides a cell phone number “to the
creditor . . . during the transaction that resulted in the debt owed.” Id. at 1122–23 (citing the
2008 Ruling). This “narrow reading,” reasoned the Eleventh Circuit, “would find prior express
consent when a debtor personally delivered a form with his cell phone number to a creditor in
connection with a debt, but not when the debtor filled out a nearly identical form that authorized
another party to give the number to the creditor.” Id. at 1123. Moreover, our sister circuit relied
on the fact that the FCC has held that “prior express consent” exists when one has “made the
number available to the creditor regarding the debt”; i.e., not just in “direct delivery” cases. Id.(quoting the 2008 Ruling) (emphasis added). The Mais court bolstered this conclusion by noting
the FCC’s recognition in GroupMe “that the TCPA does not prohibit a caller from obtaining
consent through an intermediary,” and its reliance on the 2008 Ruling and 1992 Order for the
proposition that “consent to be called at a number in conjunction with a transaction extends to a
wide range of calls ‘regarding’ that transaction, even in at least some cases where the calls were
made by a third party.” Id. (citing GroupMe). Accordingly, “the appropriate analysis turns on
whether the called party granted permission or authorization, not on whether the creditor
received the number directly.” Id.Baisden and Sissoko argue Mais is “seriously flawed” because, they contend, it enlarges
the scope of the FCC’s rulings in four key ways. First, they claim Mais construed the phrase
“provide” too broadly to mean something more than just “directly giving a cellular telephone
number to a creditor” and thus read out its consumer protection construction, especially in light
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 10
of criticism that the rule is “manifestly contrary to the statute and unreasonable.” We find this
contention to be meritless because it would require us to both opine on the validity of the FCC’s
rulings (which we cannot do) and ignore the FCC’s use of the word “available,” as well as its
clear directive that there is no one way for a party to provide consent.
Second, plaintiffs argue that “prior express consent” is an exception and thus must be
strictly construed. This may be true, but to follow this logic, we must reject the FCC’s
guidance—which again, we cannot do in this procedural posture.
Third, plaintiffs contend that none of the FCC’s rulings relied upon by the Eleventh
Circuit support its conclusion. Notably, according to plaintiffs, the Mais court misread GroupMe
to apply to the provision of cell phone numbers by an intermediary as opposed to “prior express
consent.” They also contend that GroupMe’s holding that “the TCPA does not prohibit a caller
. . . from obtaining the consumer’s prior express consent through an intermediary” is narrow
because the service at issue there both obtained “prior express consent” from consumers and then
represented that “prior express consent” to others, and note that there is no record evidence that
Mount Carmel Hospital both obtained “prior express consent” and then represented to
Consultant Anesthesiologists that it had done so. We disagree. GroupMe stressed that “allowing
consent to be obtained and conveyed via intermediaries in this context facilitates . . . normal,
expected, and desired business communications in a manner that preserves the intended
protections of the TCPA.” 29 FCC Rcd. at 3445 (emphasis added). The 2015 Order also
emphasized that consent depends “upon the facts of each situation.” 30 FCC Rcd. at 7990.
Similarly, if one provides a cell phone number to a health organization seeking medical
treatment, and a provider affiliated with that health organization treats that person for the same
ailment, it is normal, expected, and desired to interpret that provision of the cell phone number as
an invitation for an entity affiliated with that organization to call for something arising out of
one’s treatment.
Fourth, Baisden and Sissoko argue that Mais undermines the rationale of the “prior
express consent” exception. That is, the rule codifies social practice: if one gives a number
(especially when requested), it is an invitation to be called. From this, they contend there is no
social practice to extend the giving of a number to be an invitation for a third party to call. This
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 11
argument, again, asks us to opine on the validity of the FCC’s interpretations. And, for the
reasons already stated, one could argue that there is a social practice applicable to the facts at
issue here.
In sum, we find Mais persuasive and adopt its conclusion that consumers may give “prior
express consent” under the FCC’s interpretations of the TCPA when they provide a cell phone
number to one entity as part of a commercial transaction, which then provides the number to
another related entity from which the consumer incurs a debt that is part and parcel of the reason
they gave the number in the first place. More specifically, the provision of a cell phone number
to a hospital that then provides that cell phone number to an affiliated physicians’ group that
provided medical services to a consumer arising out of the same occurrence can constitute “prior
express consent” under the TCPA. The FCC’s rulings in this area make no distinction between
directly providing one’s cell phone number to a creditor and taking steps to make that number
available through other methods, like consenting to disclose that number to other entities for
certain purposes. And, the FCC’s GroupMe ruling and 2015 Order make clear that there is no
one way for a caller to obtain consent, and that such consent can be conveyed by another party.
The district court did not err in concluding the FCC’s interpretations applied to this matter.
IV.
We now turn to whether “the facts of [this] situation” dictate a finding that plaintiffs
provided their “prior express consent” as part of their admissions to Mount Carmel Hospital. At
the outset, we agree with plaintiffs that the district court did not distinguish between the different
authorizations signed by plaintiffs. It attributed certain portions of the authorizations to each,
ignoring that the authorization signed by Sissoko in 2009 differs in many respects from the one
signed by both Sissoko and Baisden in 2011. The better approach, therefore, is to separately
examine the authorizations.
Sissoko’s 2009 Authorization
The Sissoko 2009 authorization and the authorization at issue in Mais are virtually
indistinguishable. In Mais, the plaintiff acknowledged that the hospital “may use and disclose
health information about your treatment and services to bill and collect payment from you[.]”
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768 F.3d at 1124. Sissoko similarly represented that “Mt. Carmel may use [her] health
information for a range of purposes including . . . billing and collecting money’s due from [her.]”
The Mais plaintiff understood that the hospital could “use and disclose health information . . .
[t]o business associates we have contracted with to perform the agreed upon service and billing
for it,” “disclose your health information to our business associates so that they can perform the
job we’ve asked them to do and bill you,” and “release the healthcare information for purposes
of . . . payment . . . .” Id. (alterations in original). Likewise, Sissoko authorized Mount Carmel
Hospital to “release [her] health information . . . to such employees, agents or third parties as are
necessary for these purposes and to companies who provide billing services for physicians or
other providers involved in [her] medical care.” It could not be clearer, therefore, as to what
Sissoko permitted Mount Carmel Hospital to do with her “health information”—Mount Carmel
Hospital could give it to Consultant Anesthesiologists for the purposes of debt collection, and
Consultant Anesthesiologists could give the same to Credit Adjustments. See id. at 1122 (“A
patient filling out a form from a healthcare provider may very well expect to be contacted about
his health and treatment. But if the form explicitly states that the provided information will be
used for payment and billing, the patient has the same reason to expect collection calls as a retail
consumer.”).
The question then becomes whether “health information” includes Sissoko’s cell phone
number. Relying on Mais, the district court answered in the affirmative:
The [Mais] court explained that “[t]he cell phone number listed by Mais’s wife on
the Hospital admission form was part of the record from his visit and was contact
information related to billing.” Further, the court relied upon the statutory
definitions found in the Health Insurance Portability and Accountability Act
(“HIPAA”), which support its interpretation. HIPAA defines “health
information” to include “any information . . . created or received by a health care
provider” that “relates to . . . the past, present, or future payment for the provision
of health care to an individual.” As did the Mais court, this Court finds that the
hospital’s registration forms, in which it received Plaintiffs’ wireless numbers,
constitute information related to future payment, and therefore, part of Plaintiffs’
health information.
(Internal citations omitted.) Plaintiffs contend this was in error because: (1) the authorization in
Mais expressly defined “health information,” and Sissoko’s 2009 authorization does not;
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 13
(2) HIPAA and its definition of “health information” do not apply to consumers; (3) the general
public would not understand the ordinary meaning of “health information” to include a cell
phone number; and (4) the adhesive nature of the authorization must be construed in plaintiffs’
favor.
While these arguments carry some weight, the result would be nonsensical. That is, their
reading would make the express provision authorizing disclosure of Sissoko’s information as
“necessary for . . . purposes” of “billing and collecting moneys due from [her]” inoperative if
Mount Carmel Hospital could not release the very contact information—including her cell phone
number—she provided to the hospital as part of her admission. Moreover, the district court
properly relied upon HIPAA to bolster its conclusion. Though Sissoko did not draft the 2009
authorization (and thus it should be construed in her favor), the authorization is a contract related
to giving consent for medical care, and, as such, “health information” must be read through this
prism to give it a proper meaning. See Savedoff v. Access Grp., Inc., 524 F.3d 754, 764 (6th Cir.
2008) (“[C]ommon words appearing in the written instrument are to be given their plain and
ordinary meaning unless manifest absurdity results or unless some other meaning is clearly
intended from the face or overall contents of the instrument.”) (applying Ohio contract law and
alteration in original). Under HIPAA, “health information” includes “any information . . .
created or received by a health care provider . . . relat[ing] to . . . the past, present, or future
payment for the provision of health care to an individual.” 42 U.S.C. § 1320d(4). Contact
information most undoubtedly is any information that relates to a patient’s payment for care
provided.
Sissoko next claims that the 2009 authorization was only valid for one year—beginning
August 3, 2009—and thus did not authorize any calls to her made after one year. The FCC has
opined that “consumers may revoke consent through any reasonable means,” 2015 Order,
30 FCC Rcd. at 7993, and the 2009 authorization’s one-year sunset provision might so qualify.
But we need not consider this issue because the provision relied upon by Sissoko for this one-
year limit does not apply as she suggests. After setting forth all of the specific “authorizations,”
the 2009 authorization then carves out a specific authorization for the release of a certain kind of
information:
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 14
The preceding authorizations for release of medical information include
authorization for the release of information regarding drug and/or alcohol abuse,
HIV (Human Immunodeficiency Virus) testing or HIV infection related
conditions. This authorization shall remain valid for one (1) year.
A plain reading of this language indicates that the one-year restriction is not for the entire
2009 authorization, but rather for the authorization relating to release of information for drugs,
alcohol, and HIV. The “authorization” is set forth in a separate paragraph and distinguishes
between “the preceding authorizations” (plural)—i.e., those relating to “billing and collecting
moneys due from [her]”—and the authorization (singular) relating to drugs, alcohol, and HIV.
In sum, the district court correctly granted summary judgment to Credit Adjustments for
those calls it placed to Sissoko arising out of her 2009 authorization.
Baisden’s and Sissoko’s 2011 Authorizations
The 2011 authorization similarly cannot be read in the manner suggested by plaintiffs.
Like the Mais and 2009 authorizations, the 2011 authorization similarly put plaintiffs on notice
that Mount Carmel Hospital “may use [their] health information for many reasons as needed . . .
[including for] billing and payment.” It also provides that “Mount Carmel may receive or release
[their] health information . . . .” This authorization is broader in two key respects: (1) it allows
Mount Carmel Hospital to use plaintiffs’ health information “for many reasons as needed” as
opposed to the 2009 authorization’s “for a range of purposes”; and (2) unlike the 2009
authorization, the 2011 authorization is not limited to the “release [of their] health information
. . . to such employees, agents or third parties as are necessary for these purposes and to
companies who provide billing services for physicians or other providers involved in my medical
care.”
Plaintiffs’ arguments to the contrary are without merit. First, and as with Sissoko’s
2009 authorization, “health information” necessarily includes plaintiffs’ contact information;
otherwise, the provision concerning “billing and payment” would be rendered meaningless.
Second, the above HIPAA discussion also applies. Third, plaintiffs’ contentions that the
2011 authorization’s “may use” phrase cannot be read as “may disclose,” and that the
authorization does not specifically identify the entities to which Mount Carmel Hospital would
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 15
disclose, wholly ignore the broad and separate provision authorizing the “release” of plaintiffs’
health information. Accordingly, the district court correctly granted summary judgment to
Credit Adjustments for those calls it placed to plaintiffs arising out of the 2011 authorization.
In sum, the authorities discussed above make clear that the context in which Baisden and
Sissoko provided their cell phone numbers is essential to determining whether they provided
“prior express consent” to receive calls to those numbers. They sought medical treatment from
Mount Carmel Hospital, and in the course of this relationship, both gave Mount Carmel Hospital
their cell phone numbers and authorized it to disclose their cell phone numbers to others. The
“other” in this case—Consultant Anesthesiologists—has a significant relationship to Mount
Carmel Hospital, plaintiffs, and most critically, the debts owed by plaintiffs that arose from the
transactions in which plaintiffs provided their cell phone numbers. This case, therefore, fits
comfortably within the “prior express consent” limits set forth by the FCC.
V.
Finally, we reject plaintiffs’ reliance on the 2008 Ruling’s statement that the number must
be “provided during the transaction that resulted in the debt owed” for the proposition that Credit
Adjustments “failed to prove that the numbers were provided during the anesthesiology services
transactions that resulted in the anesthesiology services debts owed.” Hill addressed this exact
argument, as the plaintiff there argued that “during the transaction that resulted in the debt owed”
was to be read as only applying to “the ‘initial transaction’ that creates the debt.” Hill, 799 F.3d
at 551. We concluded this reading was too constricted:
Unlike Hill, the FCC never uses the words initial or original before “transaction.”
It instead says that the debtor has given his consent when he gives his number
“during the transaction ” that involves the debt (i.e., “regarding the debt”). This
language does not change the general definition of express consent; it instead
“emphasize[s]” that creditors can call debtors only “to recover payment for
obligations owed,” not on any topic whatsoever. So it ensures that a debtor who
gives his number outside the context of the debt has not given his consent to be
called regarding the debt. Still, then, 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.”
No. 15-3411 Baisden, et al. v. Credit Adjustments, Inc. Page 16
Id. at 551–52 (internal citations omitted). Indeed, as but one example as to why such a narrow
interpretation of “during the transaction that resulted in the debt owed” is inconsistent with the
FCC’s guidance, we expressly pointed to the exact situation presented here: Mais. Id. at 552.
This disposes of Baisden’s and Sissoko’s final issue on appeal.
VI.
For these reasons, we affirm the judgment of the district court.