Advertising Law Blog

In Hill v. Homeward Residential, Inc. (decided on August 21, 2015), the Eleventh Circuit Court of Appeals appears to have broadened the circumstances under which debt collectors can make autodialed calls to cell phones in an attempt to collect a debt.

A prior case, Nigro v. Mercantile Adjustment Bureau, Inc. (decided in October 2014 by the Second Circuit Court of Appeals), held that when a person provided his cell phone number to a creditor after the debt was incurred, he had not consented to receive autodialed calls on his cell phone.  The number had to be provided at the same time the debt was incurred. Nigro had provided his cell phone number long after the debt was incurred by a relative.

By contrast, the Eleventh Circuit, which covers Alabama, Georgia and Florida, reached a different result last week, interpreting the consent requirement differently from Nigro, and in a way more favorable to debt collectors.  The Court explained, “a debtor consents to calls about an existing debt when he gives his number in connection with that debt – including after his initial signing of the loan. While debtors may typically give their cell phone number as part of a credit application at the beginning of the debtor-creditor relationship, it doesn’t have to be that way.”  Hill had initially provided only his home phone number to his creditor, and it was three years later that he provided his new cell phone number.

Unlike the Second Circuit, the Eleventh Circuit did not put much weight in the three-year time lapse in providing the cell phone number. It stated in debt collection cases, it is only necessary that the debtor gives the creditor his number before it calls him.  The Eleventh Circuit also clarified that a debtor does not need to give his consent to automated calls specifically. His general consent to being called on a cell phone constitutes “prior express consent.”

Note that all of the issues discussed in this article apply only to debt collectors. The rules for telemarketing calls require a more specific type of consent—namely, that the called party consents, in writing, to being called by an auto-dialer through specific verbiage established by the Federal Communications Commission.

The takeaway from these two decisions is that while there is a growing body of rulings favorable to debt collectors, the law is still far from settled in this area, and if you are going to call cell phones with autodialing equipment, you should continue to use numbers obtained directly from the debtor at the time the debt was incurred.