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Attorney Kohlmyer III wins on appeal in Mais v. Gulf Coast Collection Bureau, Inc

Attorney Kohlmyer III wins on appeal in Mais v. Gulf Coast Collection Bureau, Inc. 768 F.3d 1110 (2014)

The interlocutory appeal was decided on September 29, 2014 in the Eleventh Circuit in Florida before Circuit Judges Hull, Marcus and Hill.

The Appellant, Gulf Coast Collection Bureau, Inc. (Gulf Coast) was represented by Attorney Ernest H. “Skip” Kohlmyer, III of Urban Thier & Federer, P.A. Attorney Kohlmyer, III filed this interlocutory appeal because the district court had granted Mais partial summary judgment against Gulf Coast reasoning “the FCC’s interpretation was inconsistent with the language of this Telephone Consumer Protection Act (TCPA) and, regardless, the 2008 FCC Ruling did not apply on the facts of this case.” Id. at 1113. 

When the district court would not reconsider the partial summary judgment order, Attorney Kohlmyer, III on behalf of Gulf Coast, asked the district court to certify the prior express consent issue for interlocutory appeal because “the order involve[d] a controlling question of law as to which there is substantial ground for difference of opinion” and because “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. §1292(b). The Appellate Court reviewed four certified questions from the district court:


1) Whether a district court has jurisdiction under the Hobbs Act to review an FCC order in a TCPA case when the Plaintiff does not challenge the validity of that order;


2) If the district court has such jurisdiction, whether the FCC’s pronouncements on the issues of “prior express consent” and vicarious liability are entitled to deference under Chevron;


3) If the district court lacks such jurisdiction, whether the FCC’s opinion on “prior express consent” is limited to the consumer credit transaction arena such that it does not apply to the medical setting; and


4) Whether a medical provider’s consent to use and disclose patient information, including phone numbers, under HIPPA equates to “prior express consent” for affiliates and agents of that provider to call the patient on his cell phone for debt collection purposes using an automated telephone dialing system.


The Appellate Court held that the district court “exceeded its jurisdiction by declaring the 2008 FCC Ruling was inconsistent with the TCPA.” Id. at 1119. The Court explained that the Hobbs Act “expressly confers on the federal courts of appeals ‘exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of such FCC orders. 28 U.S.C. §2342. The Court further explained that “whether the challenge to an FCC order ‘arises in a dispute between private parties makes no difference – the Hobbs Act’s jurisdictional limitations are ‘equally applicable whether [a party] wants to challenge the rule directly, or indirectly, by suing someone who can be expected to set up the rule as a defense in the suit.’” C.E. Design, 666 F.3d at 448 (alterations in original) (quoting City of Peoria v. Gen. Elec. Cablevision Corp., 690 F.2d 116, 120 (7th Cir. 1982)).

The Appellate Court also found no merit in Mais’ argument that the 2008 FCC Ruling did not apply because this was regarding medical debt not consumer debt. The Court found “the FCC’s general language sends a strong message that is meant to reach a wide range of creditors and collectors, including those pursuing medical debts.” The Court also pointed to the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p, “which includes medical bills within its broad definition of debt. The Court also cited Moise v. Credit Control Servs, Inc., which held that “[b]ased on the plain language of the TCPA and the [2008] FCC order it is clear that if Plaintiff gave his cell phone number directly to [a medical laboratory], that would constitute express consent.” 950 F.Supp.2d 1251, 1253 (S.D. Fla.2011). Therefore this Court found no distinction between filling out a credit report and filling out a medical admissions form to a hospital, like Mais did.

Mais had a third argument where he suggested that the 2008 FCC Ruling did not apply to his case because “he did not ‘provide’ his number to ‘the creditor.’” Id. at 1122. His wife provided the number to the hospital not the creditor. The Court rejected this argument as well because there is no “functional distinction” between a person giving the cell number directly to the creditor associated with the debt and the person filling out a form, which “authorize[s] another party to give the number to the creditor.” Id. at 1123. Mais’ wife gave the hospital permission to release the number “in connection with billing and payment” when she filled out the form. Id.

The last argument Mais presents to the Court is that his cell phone number is not considered “health information” and therefore the hospital had no authority to release it to the creditor. The Court rejected this argument as well, explaining that the hospital’s form “explains that the hospital ‘may use and disclose health information about your treatment and services to bill and collect payment.” Id. at 1125(emphasis added). So a cell phone number “can be quite relevant to treatment and services” provided by the hospital. The hospital notice also stated that the hospital might “use and disclose” health information . . . “to remind you that you have a medical appointment; [t]o assess your satisfaction with our services; [and] [to] contact you as part of fundraising efforts.” Id. So it follows that the cell phone number was included in the contact information.

In the end the partial grant of summary judgment to Mais was reversed and remanded to the District Court “to enter summary judgment in favor of Gulf Coast on its prior express consent defense.” Id. 1126.

Following the appellate decision, Attorney Kohlmyer was also successful in obtaining an Order for Taxation of Costs in the amount of $5,177.68 against Plaintiff, Mark Mais. We wish to thank our client, Gulf Coast Collection Bureau, Inc. and David Haggarty with Travelers Insurance for allowing us to challenge the original ruling by the trial court and established new precedent for the TCPA within the Eleventh Circuit appellate jurisdiction.

Ernest H. “Skip” Kohlmyer, III, Esq., LL.M

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