fed in this case enter a group respectfully request that the court reverse and remain and the trial court's decision with respect to granting summary judgment on behalf of the plaintiff on the claim under the telephone consumer protection act  instead of looking at the issue of consent and providing consent under a summary judgment standard as the plaintiff as the moving party the court instead reversed the burden on the defended and said that defended had to show conclusively that there was consent in order to be able to have a triable issue is that what rule fifty six us now will fifty six we understood that there were genuine issues of material fact that required the ultimate fact finder to make the call but we had was a series of events and there's clearly an issue that that could go the way of the pla by a trier of fact but it could equally go in favor of the defendant in front of the trier of fact this is the quintessential question for reasons why a case goes to summer it goes to a jury in a finder of fact rather than give it granted summary judgment questions that the maze court asked because it was the defendant as the moving party in this case n r a group was not the moving party we presented evidence of a genuine issue of material fact and the court should not have just simply said we didn't prove it therefore summary judgment was granted in favor of the plaintiff and what we have is we have a scenario in which and he did this is a genuine issue of material fact goes into the hospital goes into the hospital goes into an intake he goes to the radiology department x rays receives an m r i is alternately build a co pay or to topical doesn't pay so the chain of custody of this telephone number goes from the intake in the hospital which acts on behalf of all of the myriad of medical professionals that staff the hospital  number ok and as you said you end up with your client ends or end or a group ends up with a phone number how does how is that express consent to be called for collection of a bill he just asked to answer the question he gave us fun number all the first from the federal communications commission on down through word decades providing a telephone number in the course of an ordinary business look at this decision including means including court sit in this circuit have all come to the same conclusion which is providing the telephone number in and of itself in the business transaction is consent for ultimately collection of that obligation in that regard and so that that changes there now what we don't have in this case is this beyond simply saying they provided the number to the to the hospital is and what the court says is you don't have a physical intake form but this is quintessential circumstance of circumstantial evidence i don't have to have a picture of the rain i mean we we all talk about the jury charge that goes to the jury you can infer from the individual walking in with rain all over them see the ground this way to know what is right so there's direct evidence in the circumstantial evidence there is circumstantial evidence that that chain of custody of that telephone number from the hospital intake to the radiology apples and oranges here and the what was the phone goes back to my initial question what was the phone number given for i mean you give your phone number when you check in the first thing you think about is your patient really need or phone my phone number because they want to tell me what the results maybe i recall last thing you're thinking about when you walk again is somebody is going to come after subsequent here too and try to collect the twenty five or bill when you go to any service provider for which you are receiving services and in this case again the cases all dealing with hospital in these cases is consistent with that and every other case you're provided getting provided services expectation is you're going to pay for those services you go to the hospital walking into the hospital in a voluntary this we're not we're not talking about a scenario where somebody is admitted in an emergency basis and someone and another person provides a telephone number because the person isn't conscious or not aware but talking about a voluntary admission into a hospital to provide medical services that these services could take place in a facility outside of a hospital they can take places in this case inside the hospital w radiology department which provides the x ray and the m r i is expecting it is the anticipation that they're going to be paid for their services the hospital bills that medical provider for the physician services bill so you receive multiple bills all for the provision of a single service there is it and the case law is again clear walking into the hospital to receive medical services is providing to ultimately the creditor the person providing the services within tesa patient you're going to have to pay for that who's the creditor the direct creditor who is his radiology associates even there not the hospital that well they are the hospital department when you walk in and a centralized intake in their hospital but the services that are provided on premises is for the benefit of every single one of the myriad of physician practices that exist in that your argument to judge ross point i mean the earth clear corporate separation between radiology associates in the hospital is there not there's quite there's corporate separation so if they're entitle to all the benefits of the separate corporate form how can you just link them together or even wide them because the provision of the telephone number in the centralized intake process is for the purpose of every single physician practice within the confines of the hospital whatever services you are receiving that day so that the provision of that number is the provision to the creditor that each the part meet doesn't have its own intake you don't walk into children's hospital in philadelphia and suddenly go to radiology or go to college eat or go to cardiology and have a completely separate intake there's a centralized location behalf of the actual physical creditor the radiology department and that's true even if the creditor assigns the the raiser duty to somebody else are you  agency the purposes of collecting the obligation owed to the creditor right so if if the hospital were the collecting agent here i know it's not but if it were and then it assigned its it's true to radiology associates radiology associates would have the right to lie yes that's in fact essentially what happened here because radiology associates works out of the hospital are they are the radiology department of the hospital there is a separate physical form there you know corporate entity that does the actual radiology practice runs the m r i does things but when you come in to the hospital for those services you could was centralized intake they were acting on behalf of the multitude of creditors that exist in that hospital for the sake of efficiency under this telephone consumer protection  act should we look at the actual language of the prior of prior breasts consent and make a determination ourselves as to what congress meant were is were we bond by what the f interpretation of the federal communications committee as the executive branch agency interpret ing given the power to interpret the t p a within the confines of its language they've issued their pleas out think that this rises to a standard that you should not give deference to the federal communications commission with respect to his interpretation of what constitutes express con and in that case they have clearly said that providing information to a creditor means that a debt collector can in fact call and that that does constitute consent for purposes of making a call now at the end of the day when we get back to circle back around to the issue just before this court and what was before the trial court really comes down to whether this was a given whether reconstituted consent is a trial book issue it is not one that is  as a matter of law under these facts you know we've been debating the back and forth what about the hospital where does it go but these are all questions that really are more appropriately brought in front of the trier of fact to ultimately conclude they could conclude that in fact this doesn't constitute consent is there an agreement between the hospital and the radiology department describing how these billing matters will be handled and relationship and i believe that while the documents themselves weren't produced that's part of the description in the billing service talking about how they receive their records you directly from the hospital were directly from the radiology group that was in the affidavit that they supplied again that's part of the total package of circumstantial evidence that would be prevented before with the trier of fact it's not it doesn't have to be conclusive again we don't have to show direct evidence without a doubt we want to move the party we were the not moving party we're entitle to every inference in our favor for purposes of summary judgment  that out for those documents coming on later and there's a whole separate issue about subpoenas to the hospital and whether or not there was pretrial subpoenas and whether they're going to be subpoenaed for trial that never came up and never was never went to fruition because the court ruled as it did on summary judgment all those things will be taking care of and argued after in fact it goes back for a reason mant and we get to actually try the issue of consent before the actual ways the phone number was made available to the third party entity when the permission was granted for the hospital to share the phone number with that third party here that critical the patient went inside doctor the doctor referred some blood work or something else for testing to a lab and then the lab called the patient using the phone number that the patient provided only to the doctor but there was no there was no consent form where the plane took the where the patient had given permission for the doctor to transfer the phone number to lab here there is no there was no evidence that there was any consent for the for the phone number of to be transferred in the way that the defendant if you agree with mr perfect two things if the hospital had been the creditor here the case would have gone to the jury yes and you agree with him that if the hospital had assigned it's right to collect the debt to a third party let's call them radiology associates that the case would have had to go to the jury yes if the hospital was assigned its right to collect a debt that was owed to the house to it right however you agree that downstream out signing these stand in the shoes i mean just consistent with general assignment loff the statute doesn't a comes down to the fact that there's no factual question here that there was no relationship between your clients and radiology associates correct and they're in the face up that they provided all the work they they they did the medical work he wanted right that's correct but they're promote these they think they're separate entity and they have and so the hospital just needs to change its procedures and if if you're running a hospital and you've got subsidiaries or affiliates that are working out of your hospital you need to change your intake procedures to make sure the party that actually needs to get paid is the one that gets the consent from the person receiving the says prior express consent provided to a particular creditor so the hospital we're not entitle back credit or the hospital we're third party collector to call a consumer's wireless number on behalf of other creditors including on behalf of affiliated entities so even half the radiology associates was considered unfairly to that city of the hospital and there's nothing in the records indicate that it is affiliated the hospital could not use the phone number that mr do to call to collapse the radiology associates that but that's not what happened here what happened here goes one step further removed which is that radiology associates used the phone number that the hospital itself could not have used radiolog ath lab for the surgical associates you have to find sign five different admission forms when you go in now you are typically i think the the hospital could ask the patient to the patient that as a condition of coming in here and getting treated you're giving us permission to share your phone number to use for billing purposes with anybody that provides you services while you're in the hospital of any unrelated third party that's here i would i would like to talk about the fair debt collection practices i appreciate that because i am concerned with respect to your argument because it seems to me that german generally pours legal or as a defense under section sixty ninety two k c why am i wrong on that i believe that's completely correct that is correct ok than then why shouldn't we accept mr pearl's argument with respect to that claim because mr powers argument is that is that a legal error here should be allowed so there were two there were two district court cases douglas one which was ultimately appealed and overturned by this court and waldron roger was an unpublished opinion from the eastern district in which defense position is that it wasn't their error that the law was unanimous these were the only two decisions in the country on this point and that when the third circuit who ruled the trial court in douglas that the law changed well that argument i think has constitutional implications the judiciary doesn't legislate if when the third circuit in douglas over one of the trial court that was a change in the law it would have only prospect that there would be it would have the effect of legislation so that's not what happens what happens is the ruling applies to the parties and to and applies before law didn't change instead what happened was the understanding of the lid against and as to what the law was better understanding was more informed now by the third circuit but two to say that the but why should they be allowed to rely on it when in an area law which should then on subtle why should they be allowed to go rely on a decision of a federal district court supreme court half was that it felt that it shouldn't be immunizing debt collectors who engage in aggressive conduct that may or may not cross the line if they found general level but a general court of jurisdiction judge in oregon is the only one who has spoken on a particular issue is it reasonable for the defendant to rely on that issue on that hoarding and say all right this judge said that we could but account numbers  when you do that wouldn't that be a ground zero for reducing the actual damages but reducing the statutory damages at sixty ninety k says that one of the factors to consider is the degree to which it's intentional and certainly if they believe that what they were there's there's no such thing as about our offense so we think a really i would be appropriate for the court to assess the amount of statutory damages but that it would be proper for you to enter judgment in plaintiff's favor with the law but that the violation could be excused if the bonafide air defense was available to it and then that issue was what was left open for truck right we went to trial on the bona fide air defense and the pirro issues at the close of plaintiff's case is she judgment is a matter of law and you're asking us first to reverse that judgment as a matter of law ok and wheat seems to me we have two choices send that back you would remain armed with instructions to do that he should have gone to the jury because there was ample evidence which i could i could discuss on that could have allowed the jury to find in the plaintiff's favor on  don't contend that those procedures weren't reasonable the problem came with actually doing something with that information once they learned about it so after the decision of the third circuit in douglas n r a continued to bar codes that contain account numbers so if the envelope shows it contains a bar coding on the park in the bar code there's an account number trochu and said that doubles also prevents that type of disclosure after stier was decided the defendant continued to mail and after it learned about the stier it continued to mail collection letters with rocco's for at least thirty days and in both of these cases both instances they didn't change their procedures and remove either the naked account number or the barcode from the envelopes until after the third party mailing company that they hired to send letters for them told them you should remove these things from your envelopes so all  however it's the only way that you have to test whether the procedures were reasonably adapted to avoid the error here or once the procedures were put to the test we saw that the procedures did not cause the letter the the unlawful conduct to stop there was testimony from the in house counsel for the defendant that the procedures that they used did not change at any point from when they mailed the letter to my client with the account number true the date of the trial and in fact they've been using these letters with the account numbers these envelopes with economists on them for years before walter and douglas so these this account number was not on the envelope because the defendant somehow relied on those decisions they've been using that all along you're saying oh that immaterial because of german right all material because of john right but if we agree with you on that it still needs to go back for the district court to try the actual damages crash to start with the german issue the german case very specific factual case by the united states supreme court in that case the collection agency relied on its attorney the law and what the court and what the supreme court said was that you can't rely on interpretations of the law essentially hiring an attorney to tell you something and then be able to say well wait i didn't do anything wrong we relied on our attorney that is a completely different scenario and it's something that the record was recognized by the seventh circuit and all of all was recognized by the western district of washington another court in that in the sixth circuit that all came to the same conclusion which is not that truman exclusively said there is no peace is that a bonafide there can't be an error of law but you can't use an interpretation and in this if if a statute says you can't do something and fifteen district judges read that statute to say you can't do something in the sixteenth district judge says you can do it you're saying that the warrior can just latch on to that with that sixteenth district judge says and especially assume for the sake of argument that the fifteen judges that go against your in nevada in the in the sixteenth district judge who goes for you was is right near your home district you're saying they were just following which judge so and so told us to do that that works even though he muttered a statute the bonafide error defen step back and one thing let's recognize that the bonafide error defense recognizes that there has been an error so this is not n a saying that the conduct is not a violation of the act what it says there's a defense and so the bonafide error defense reasonably procedures that a reason we adapted to the circumstances so all of the questions of the court asked becomes part of the reasonable interpretation the scenario about some magistrate district judge in oregon that makes a decision it can be said that if you're sitting in pennsylvania listening to something and you have a decision and you're relying on that decision we all as well yours could sit back and say that's the basis we're under the jurisdiction to rely on for you to have one case that goes your way from additional federal district court even if you know this there are a bunch of other federal district courts elsewhere saying no the statute says you can't do this in other words what does the statute does the language of the statute dictate what happens here rather than one federal judge's interpretation of the statute the answer to that your honor is it depends it depends on it it does depend on where and what we can look at the that doesn't restrict debt collection activities it restricts was determined to be abusive debt collection activities that the list is limited it is not enumerated there is not a probation against collection only within these confines you can collect but can't do these only limited items the fact is that anyone who's engaged in collection activity in terms of where ever they are in this case this district is going to rely on prevailing lead and case law to make an informed decision as to their business practices and whether runs afoul of the act in this particular case you have to would the court equally say that my client can freely go about doing waiting for an appeal to happen we don't we don't usually answer lawyers questions put up i'm going to take the bait in this in upon a district court opinion does so at his or her peril because there's a chance that the sprint for the united states or the relevant circuit court might say that that district court misinterpreted the the f t c and that is absolutely correct on that event can occur and that's why there is a bona fide error defense not that the conduct itself wasn't a violation we're not arguing in retrospect having but douglas to opinion saying that this conduct is a violation here in the third circuit that's not the argument that's being made the argument is with or is the agency entitled to only now smith on this subject there are twelve to fifteen thousand f t c p a actions fall across this country on a yearly basis if people were to take the position that collection agencies were bound not to do every single thing that a plaintiff's lawyer alleges is a violation of the f t c p s a simply because it was filed and a district court ruled against the plaintiff's lawyer now but the district court ruled against the plaintiff's lawyer but you still got a while the plaintiff's lawyer as the party of law and you can act that way then i'm not sure that helps you there just seems to be the other side of the coin which says that this court needs to interpret the f t c and if you're acting consistently with it you're fine and if you're acting in violation of it you could if you're going to be held to account do you have reasonable procedures in place in an effort to avoid this error that is the question and is having in this case a complete legal department evaluating case all across the country attending kids in legal education classes keeping up with the current trends in regulatory and legislative affairs and then trying to conform the conduct of your business in uploads with those things procedures recently adapted to avoid making errors even though in this case subsequently it was determined that it was an error that is the question and the procedures were reasonably adapted there was no question about that and the trial court was correct in saying as the other course across this country have said that if you're relying on this district court that the supreme court did not say in german that no reliance