Zean v. Fairview Health Servs.

858 F.3d 520

Samuel ZEAN, on behalf of himself and all others similarly situated, Plaintiff–Appellant

v.FAIRVIEW HEALTH SERVICES, Defendant–Appellee

No. 16-1747

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2016

Filed: May 26, 2017

Counsel who presented argument on behalf of the appellant was Shawn J. Wanta, of Minneapolis, MN. The following attorneys also appeared on the appellant brief; Patricia A. Bloodgood and Christopher Daniel Jozwiak, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee was Bryant D. Tchida, of Minneapolis, MN. The following attorneys also appeared on the appellee brief; Todd Noteboom and Calvin P Hoffman, of Minneapolis, MN.

Before LOKEN, MURPHY, and KELLY, Circuit Judges.

LOKEN, Circuit Judge.

Fairview Health Services is a nonprofit corporation that operates hospitals and clinics in Minnesota and sells medical devices under the business name Fairview Home Medical Equipment ("Fairview"). Samuel Zean brought this putative class action, alleging that after purchasing a medical device from Fairview he received numerous telemarketing calls and voicemail messages soliciting him to buy home medical supplies from Fairview, calls that violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. The district court¹ granted Fairview's motion to dismiss, concluding that Zean had not stated a plausible claim that Fairview made calls without the "prior express consent of the called party." Zean v. Fairview Health Servs. , 149 F.Supp.3d 1129 (D. Minn. 2016), quoting 47 U.S.C. § 227(b)(1)(A). Zean appeals, arguing the court erred in ruling that consent is an element of his TCPA claim, relying on documents that were not embraced by the complaint, and finding that the calls were within the scope of his consent. Reviewing the Rule 12(b)(6) dismissal de novo , we affirm. See Quintero Cmty. Ass'n v. F.D.I.C. , 792 F.3d 1002, 1011 (8th Cir. 2015) (standard of review).

I.

Recognizing that automated calls are often a nuisance and an invasion of privacy, Congress passed the TCPA to balance "individuals' privacy rights, public safety interests, and commercial freedoms of speech and trade." Mais v. Gulf Coast Collection Bureau, Inc. , 768 F.3d 1110, 1117 (11th Cir. 2014) (quotations omitted). As relevant here, the statute prohibits any person from making "any call (other than a call made ... with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number assigned to a ... cellular telephone service." 47 U.S.C. § 227(b)(1)(A)(iii).

Congress gave the Federal Communications Commission ("FCC") detailed directions to "prescribe regulations to implement the requirements of this subsection" in § 227(b)(2), and enacted a private right of action "based on a violation of this subsection or the regulations prescribed under this subsection" in § 227(b)(3). The FCC regulations provide that a nonprofit organization such as Fairview may not "[i]nitiate ... any telephone call that ... constitutes telemarketing ... to any [cellular telephone number] other than a call made with ... the prior express consent of the called party." 47 C.F.R. § 64.1200(a)(2). Under the Hobbs Act, 28 U.S.C. § 2342 et seq. , federal courts lack jurisdiction over challenges to FCC orders and regulations "other than on appeals arising from agency proceedings." Nack v. Walburg , 715 F.3d 680, 682 (8th Cir.2013), cert. denied , ––– U.S. ––––, 134 S.Ct. 1539, 188 L.Ed.2d 581 (2014).

The FCC has issued a series of Rules and Regulations implementing the TCPA that are relevant to the issues on appeal. The 1992 Rules stated 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 and Regulations Implementing the Telephone Consumer Protection Act of 1991 , 7 FCC Rcd. 8752, 8769 (Oct. 16, 1992). The 2008 Rules clarified "that 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 calls made with the ‘prior express consent’ of the called party." In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 , 23 FCC Rcd. 559, 568 (Jan. 4, 2008). However, "prior express consent is deemed to be granted only if the wireless number was provided by the consumer ... during the transaction that resulted in the debt owed." Id. at 564–65. In addition, because "creditors are in the best position to have records ... showing such consent," if a question arises as to whether express consent was provided, "the burden will be on the creditor to show it obtained the necessary prior express consent." Id. at 565.

The FCC's 2015 Rules applied the agency's 2008 interpretation to more than debt collection: "regardless of the means by which a caller obtains consent, under longstanding Commission precedent, if any question arises as to whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the necessary prior express consent." In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 , 30 FCC Rcd. 7961, 7990 (July 10, 2015). The FCC also confirmed that "the scope of consent must be determined upon the facts of each situation." Id. at 8028 (quotations omitted). "[N]either the Commission's rules nor its orders require any specific method by which a caller must obtain ... prior express consent." Id. at 7990.

II.

Zean's Class Action Complaint alleged that he purchased a medical device from Fairview in September 2014 that requires periodic purchases of replacement supplies. Zean began receiving on his cellular telephone automated telemarketing calls from Fairview referring to the device he had purchased and asking if he would like Fairview to send replacement supplies, including masks, headgear, filters, and tubing. When the calls went to Zean's voicemail, Fairview left a two-and-a-half-minute prerecorded message instructing Zean to press one to receive supplies, or press two if he did not wish to receive supplies. The Complaint alleged that Zean received approximately twenty-five calls between September 2014 and August 2015, when he filed the Complaint. He further alleged that he asked a Fairview employee to refrain from calling him with supply offers. "The employee agreed, and instructed Plaintiff to call ... when he needed to order supplies." The Complaint did not date that conversation or allege that Fairview made any automated telemarketing calls after Zean asked Fairview to stop calling. Paragraph 40 alleged:

40. The telephone calls were made and the voicemail messages left through the use of an automated dialing service or an artificial or prerecorded voice and without the express written consent of [Zean] and the proposed Class members.

Fairview moved to dismiss the Complaint for failure to state a claim. In support, Fairview submitted employee Jill McCartney's declaration attaching two "Fairview business records relating to the Plaintiff, Samuel Zean." Exhibit A, identified as a "true and correct copy of a redacted Fairview business record executed by Plaintiff," includes the following unredacted text:

Communication: I understand Fairview may need to contact me in regard to my services and accounts. I give permission for Fairview and its approved agents to contact me by phone (including my cell phone). This may include the use of auto-dialers or pre-recorded messages.

Below this line and more redacted text are Zean's unredacted signature and the date, "8–29–14." Exhibit B, identified as a "true and correct copy of a redacted Fairview business record in which Plaintiff provided his cellular telephone number to Fairview," is a heavily redacted document that includes a heading, "Questionnaire," followed by unredacted text: "Name: Samuel G. Zean," and "cell phone ...–1594." On page 6 appear Zean's unredacted signature and a date, "8/23/13."

At the hearing on Fairview's motion to dismiss, counsel for Zean argued:

Defendant has submitted the Affidavit of Jill McCartney and two exhibits, Exhibit A and Exhibit B, on which they ask the Court to rule as a matter of law that Plaintiff provided consent within the meaning of the TCPA. This is Exhibit A, and it is completely redacted. We do not know what it is.... [E]verything is redacted except what purports to be my client's signature and the date and this assertion ... that he understands Fairview may need to contact him in regard to their services and accounts, and he gives permission to have them contact him. Again, we do not know what this is. My client hasn't seen it, doesn't have a copy of it. I haven't seen it, and the Court hasn't seen it without redactions. So, it's obviously a very private document.

This is Exhibit B.... It is completely redacted except for the last page, which interestingly was signed a year earlier than Exhibit A. My client ... purchased a medical device from Fairview in September of 2014. This was signed apparently in 2013.

The district court asked counsel for Fairview during rebuttal, "How in the blazes do you expect me to trust documents that are totally redacted?" Counsel replied, "I would love, actually, to be able to have the full documents before you.... [b]ut I think I've got a problem under [HIPAA], and I think I've got a bigger problem under the Minnesota Health Records Act.² ... You actually have to have a written, signed consent and authorization to release records from a patient with protected health information." Counsel for Zean did not reply to this colloquy.

The district court granted Fairview's motion to dismiss, concluding that the plain language of 47 U.S.C. § 227(b)(1)(A) means that "lack of prior express consent is an element of a Zean's prima facie...