several times that the t c p a a is at root a consumer privacy statute it's designed to protect consumers from intrusive calls that are made with auto dialers without their prior express  the main issue here because the enrollment form says big letters use and disclosure of protective health information it says i acknowledge and understand that these various entities may disclose this information for purposes of health plan operations including but not limited to quality improvement so why isn't that an express consent to get a call about quality improvement if the nail on the head is the primary issue in this case we think it's not because of what we've proposed to be a two part test with respect to how you assess the scope and importantly consent is an affirmative defense it is the defendant's burden to bear and we don't think that they have as all demonstrate your client signed that right she didn't and it reads i mean with ellipses it reads exactly as i read it so there isn't really a factual issue in a burdensome it's the only question is whether that we're consents to receive calls about quality of medical care i disagree with that your honor i will tell you why the scope is something that deals with not just the scope of the words on the page but the scope of who has consented to placing ambiguity in the word of phrase quality improvement give deference to the words as as written i agree that's the analysis the important thing here though for our perspective is that the the company that we have brought the lawsuit against who has made the calls was not acting as an intermediary of the company who the contract with a contract belongs to that you're looking at an analogy i thought of when preparing for the ask you to address that because it gives me trouble about that argument your argument seems to be  notion that somebody other than health that is going to be making calls absolutely potentially but health that wasn't making the call or sorry health net was or the health net intermediary was not making these calls that's the a but there's a chain that goes from health net here to the to the color they got the information the information was disclosed came from health net and went to the caller no not exactly i'll direct your honour's to happened with respect to the chain of events in this case is that her doctor's office got her information on her into a kind of separated doctor's office out of this for a moment and deal only with the consent given to to health that there's a separate chain of events that occurs in the doctor's office but what i described just then is networker with respect to the information given to health that there was information provided by health not to regal and there was information provided by m c from regal but those are not the same issues i think i want to give you an example to i was correctly describing the way in from health that's information flow down to the to the defendant didn't flow down it flowed and split into two separate chains there's a chain that goes from the doctor's office down to m t c and there's a chain there goes from the regal to or sorry from health not to regal and then ends the chain that goes down the empty seat came from the doctor's office and so what our position is is that m p c was acting as an intermediary but only of the doctor's office not of health and that and the group me intake for my argument is that the enrolment form has absolutely nothing to do with with why these calls were being made well the sixth circuit has held that it doesn't really matter how the caller obtains the was number if the plaintiff took steps to make the number available for the purpose that involved alternately to call or who's involved but it doesn't matter whether they're intermediaries the point is  because the recipient of the call it's the exact same call no matter who does it so if you consent to be called about a certain topic why does it make any difference in the statute i'd like to give an example which will illustrate the problem imagine that you give your consent to toyota to call you about recalls and to call you about warranties and product updates because you buy a car at the dealership and you sign a form and you say you have my and you buy an air freshener with your credit card and pep boys yanks your credit card information as which has the correct which has your phone number in it and then they start auto dialing you know and you say well i didn't give you my consent the recalls how no exact well see that's the thing in it this is the exact thing that was consented to it's about quality assurance of medical care it's not about upselling or air fresheners or anything it's about the exact thing that was consented to that's where nothing to do with the you know the pit was what i know that's kind of like a false lead so why it worked why were her expectation it was frustrated here about what happened that she  had given consent to give calls about quality of care quality improvement because the person who was calling her about quality improvement wasn't an agent of the person but really understand your argument if health net had made these calls you would have no complaint that's correct what greater statutory interest was violated in this circumstance by the fact that the calls were made by i forget what  a wanted robo call it just was dialed by the wrong person is that your position it was done by somebody who didn't have permission to make it i can give consent to burger king to call me about burgers but that doesn't mean mcdonald's can call me about burger so i gave my consent to burger king but if you gave your consent to burger king to disclose your information to others for the purpose of finding out how you say further for specific purpose and and somebody else called you about burger king burgers your position is that would violate the statute it would if that  king can call you know anybody who's an intermediary of burger king could call where's that in statute that's in the two thousand and fourteen group me order from the f c c to tell me what you tell me where in the grouping order it says that one may not pass on information that ends up to somebody does exactly what you could have done had you had to permission well what it says and i'll i'm running out of time but tell me ok what it says is that anybody who is an intermediary in the chain has the authority because it is granted through an intermediary status as an agent of that person in the chain understand it says that where does it say that it is prohibited from passing it on to somebody who's not it who's not a so called intermediary in the chain as long as they stay within the boundaries of the original consent that the factual the factual issue here is that's not what happened in this case we know that from the statement of undisputed facts because m was calling plaintiff to provide medical care providers to survey her experience it doesn't say anything about her health care her health net affiliation but she put it this i think health surely health that's idea here was we want to be able to check on the doctors that you're dealing with in our system i agree one hundred percent your honor however that's what the health care provider but health that wasn't doing that here factually that's not what was happening or somebody else was doing it on their behalf the notes nobody was doing on their behalf the doctor's office was doing it and was hiring m t c to do it for them because they don't know all about quality of care that's what concerns me is that she gave her permission she had to understand that that she would be called about quality of care so someone called about quality of care now she's complaining about it is that right that's kind of right she complained she's complaining about the fact that the person who's calling her has no consent to do it not that the types of calls that she it seems to say if you give your phone number to somebody who provides a service then you affectively consented to being called by that person about the service you disagree with that reading a village fitness i don't necessarily disagree with that reading i think it's a little more subtle than that wouldn't that wouldn't it giving your phone number to the doctor's office in and of itself give rise to consent to be called by a representative of that office to see how the services  if there was no limiting language on that intake form which there was and that goes to the second part of the scope analysis well i'm not talking about the form the form just says or you can release information for purposes of processing your client gave her phone number to the doctor's office you have to do it on the form she gave her phone number and village fitness seems to say if you give your phone number to a provider of services then you've effectively consented to being called by that provider about the services that were rendered so why doesn't that software intermediary problem satterfield case talks about this which is also a ninth circuit decision and is it is i think the next the corollary to the van patten case that you're referring to satterfield says that if there is consent that is on a written piece of paper that it has to be clear and unmistakable and that you have to look at the scope of that written on the form and see whether or not it falls within that scope and so our position is that the language that limits that to dekel action calls and calls relating to processing an insurance claim limits it to those types of phone calls and then anything that falls outside that scope is not what's written on the person for any reason this case is about the commonsense application of a straightforward f c c rule which says persons who knowingly release their phone numbers give consent to be called at those phone numbers absent instructions to the contrary in this case the district court said that miss phobe or when she released her phone number knowingly in connection with receiving medical care received a phone call about the medical care consented to that phone call plaintiff did not challenge in the district court and has not even addressed here on appeal and very simple regal in a doctor or in the heritage network regal manages the patient satisfaction surveys for all the  the heritage network when health net or any other health plan receives a request to process an insurance claim it transmits that information to regal then regal outsources that m t c to call the patients in order to process the health insurance claim we've talked about this in our briefs in the district court and we talked about it here on appeal and it went unaddressed in the reply by matter and i take it your your colleague's argument is that the phone number if you were to trace  this little piece of information was actually provided by regal to m t c proximately caused by being provided by the doctor's office rather than by than by health that does that matter it was actually provided by health that your honor and it does not matter though at the enemy says there's a dispute on that issue do you agree whether no there's there there is there is no dispute on that issue the court made a finding of fact on that and it's clear as day in black and white on page two forty seven paragraph six through nine how can it make a factual finding and a summary judgment that doesn't turn from well made if it made a finding that it went that point of didn't dispute that your honor oh take the satterfield case for example if i give my phone number in order to receive ring tones and then all of a sudden i receive a text message about a stephen king novel from an unrelated publisher entity then yeah they that that would cause a problem but here there is a remedy which fitness for me because this village fitness stand for the proposition that i suggested to your colleagues that if you give your phone number to a provider of services then you've consented to be called by simply gives her phone number to receptionist at the desk at dr swartz office and the receptionist writes it down on a sticky note then the phone and then the receptionist goes and processes an insurance claim for that phone number processing an insurance of the country but rather permission to do certain things it's icing on the cake your honor we didn't need to form this form just makes it that much more clear that she could have expected to receive quality improvement calls from other entities take the trust by the government and then the health net insurance company must be able to show the government that we are patients are sufficiently satisfied in order for the government to release the remainder of that money to health that so processing that insurance claim includes conducting patient satisfaction surveys put it with the intake form unlike the enrollment form doesn't say that that's right and the intake form could have say that it could have been e for that reason put it differently your honor if miss phobe or was uninsured and she had visited dr swartz she never would have received these patient satisfaction survey calls from my client the only reason she received the patient satisfaction the twenty fourteen group me or that group me order is in the a dent into the record at pages eighty one eighty three paragraphs seven and eleven and that order essentially says you don't have to be the  person who received the phone number in order to place that call and we have cases to that effect based in the sixth circuit mason the eleventh circuit both cases somebody walks into a hospital for receiving medical care from the hospital gives their phone number on an intake form to the hospital hospital has a debt and they hire a deck lector deck collector calls the plaintiff consent was given in that circumstance and that's exactly what we have here over went to her doctor  when she when it was time to process her insurance claim health net gave the phone number to regal regal gave the phone number to m t c and t c called miss fodor direct prettier on her at the end of the day this is simply about consent it's about common sense we don't need a two part bright line test in order to tell us to use our heads judge graber you were of you join the opinion in of common sense common sense dictates that when miss voter went to the doctor's office and when she asked to have her insurance claim process that she would receive calls about her medical care icing on the cake she signed forms that said i agree to be called about quality improvement that's it your honors and lets your honour's have any more questions oh yeah the rest of my time i don't think we do thank you thank you proven that and there are no statement of fact sections which address that point at all i would invite your honour's to look at that again specifically numbers ten through twelve which talk about the fact that m t c was calling plaintiff to follow up on survey and survey her about her experiences with her doctor you can look at the actual call log itself and see that those calls happened immediately after each of the two times that she visited her doctor they were not calling her because health net contracted form to the calls that were actually made van patten talks about transactional context i think that's the key term here the transactional context of the call related to the doctor's visit not to the fact that she had insurance and that is important it's very important because if that is not satisfied then there is no scope with respect to whether or not consent was provided to m t c for these calls perhaps it could have flown to them for some other reason but not for this reason and that's what our point is and that's why we don't think the enrollment form applies here thank you counsel i think you're on a case just are you just said that even we appreciate the arguments from both of you