[ P UBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 14008

________________________ D.C. Docket No. 0:11

- cv - 61936

- RNS

MARK S. MAIS, on behalf of himself and all others similarly situated, Plaintiff

- Appellee,

versus GULF COAST COLLECTION BUREAU, INC., Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ ( September 29, 2014 ) Before HULL, MARCUS and HILL, Circuit Judges. MARCUS, Circuit Judge:

Case: 13-14008 Date Filed: 09/29/2014 Page: 1 of 322 Plaintiff Mark Mais filed a claim in federal district court against a hospital

based radiology provider and its debt collect ion agent for making autodialed or prerecorded calls in violation of the Telephone Consume r Protection Act of 1991 (TCPA) , Pub. L. No. 102

- 243, 105 Stat. 2394 (codified at 47 U.S.C. § 227). Defendant Gulf Coast Collection Bureau, Inc. (“Gulf Coast”) argued that the calls fell within a statutory exception for “prior express consent,” as interpr eted in a
2008 declaratory ruling from the Federal Communications Commission (the “FCC” or “Commission”). See In re Rules and Regulations Implementing the Telephone Consumer Pro tection Act of 1991 (2008 FCC Ruling) , 23 FCC Rcd. 559 , 564

. The district court granted Mais partial summary judgment against Gulf
Coast for alternative reasons : the FCC’s interpretation wa s inconsistent with the language of the TCPA and, regardless, the 2008 FCC Ruling did not apply on the facts of this case. As we see it, t he district court lacked the power to consider in any way the validity of the 2008 FCC Ruling and also erred in concluding that the FCC’s interpretation did not control the disposition of the case

. In t he Hobbs Act , 28 U.S.C. § 2342, Congress unambiguously deprive d the federal district court s of jurisdiction to invalidate FCC orders by giving exclusive power of review to the

court s of appeals

. See Self v. Bellsouth Mobility, Inc. , 700 F.3d 453, 461 (11th Cir. 2012). And Mais’s claim fall s squ arely within the scope of the FCC order ,

Case: 13-14008 Date Filed: 09/29/2014 Page: 2 of 323 which covers medical debt s . The 2008 FCC Ruling “ conclude [ d ] that the provision of a cell phone number to a creditor , e.g. , as part of a credit application, reasonably evidences prior express consent to be contacted at that number regarding the debt .” 23 FCC Rcd. at 564. There is no dispute that Mais’s wife listed his cell phone number on a hospital admissions form and agreed to the hospital’s privacy practices, which allowed the hospital to rel ease his he alth information for billing to the creditor

. As a result , the TCPA exception for prior express consent

-- as interpreted in the 2008 FCC Ruling

-- entitles Gulf Coast to judgment as a matter of law

. Accordingly, w e reverse the district court’s grant of partial summary judgment to Mais and remand with instructions to enter final summary judgment for Gulf Coast.
I.
A. The district court found the following facts to be material and undisputed , and indeed the parties have not disputed any of them on appeal

. See Mais v. Gulf Coast Collection Bureau, Inc. , 944 F. Supp. 2d 1226, 1230

- 31 & n.1 (S.D. Fla. 2013). Mark Mais sought emergency room treatment at the Westside Regional Hospital ( the “ Hospital”) in Broward County, Florida, in 2009. On behalf of her ill husband, Laura Mais completed and signed admissions documents , which she gave to a Hospital representative. S he provided the admitting nurse with demographic

Case: 13-14008 Date Filed: 09/29/2014 Page: 3 of 324 and insurance information, including her husband’s cell phone number. By signing

a Conditions of Admission form , she acknowl edged receiving the Hospital’s Notice of Privacy Practices (the “Notice”) and expressly agreed that “the hospital and the physicians or other health professionals invol ved in the inpatient or outpatient care [may] release [Plaintiff’s] healthcare information for purposes of treatment, payment or healthcare operations,” including “to any person or entity liable for payment on the patient’s behalf in order to verify covera ge or payment questions, or for any other purpose rel ated to benefit payment.” Id. at 1230

- 31 (alterations in original). Moreover, t he Notice said the Hospital “may use and disclose health information about [Plaintiff’s] treatment and services to bill and collect payment from [Plaintiff], [his] insurance company or a third party payor.” Id. at 1231 (alteration s in original). T he Notice stated that “[w]e m ay also use and disclose health information .

. . to business associates we have contracted with to perform agreed upon service and billing for it, ” including “physician services in the eme rgency department and radiology. ” In addition , t he Notice told patients that the Hospital “may disclose your health information to our business associate [s] so that they can perform the job we’ ve asked them to do and bill you.” Finally , the Conditions of Admission form stated that services provided by “[h]ospital

- based physicians,” including “Radiologists,” “are rendered by independent contractors” and “will be billed for separately by each physician’s billing company .”

Case: 13-14008 Date Filed: 09/29/2014 Page: 4 of 325 Mark Mais was admitted to the Hospital, where he received radiology services from Florida United Radiology, L.C. (“Florida United”) , a hospital

- based provider. Mais incurred a medical debt of $49.03 to Florida United. McKesson Practice Services (“McKesson”) , a billing company serving as Florida United’s agent, electronically re trieved Mais’s telephone number and demographic information from the Hospital and billed Mais

. When Mais did not pay or dispute the debt, McKesson forwarded his account to Gulf Coast for collection pursuant to a written agreement between Gulf Coast and Fl orida United’s parent company, Sheridan Acquisition, P.A. (“Sheridan”) , that provided Gulf Coast would “perform third party collection services on referred accounts receivable.” Gulf Coast is a debt collector that uses a predictive dialer to dial telephon e numbers through automated technology. See In r e Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991 , 18 FCC Rcd. 14 , 014, 14 , 022 (2003) (“ Predictive dialers, which initiate phone calls while telemarketers are talking to other consumers, frequently abandon calls before a telemarketer is free to take the next call. Using predictive dialers allows telemarketers to devote more time to selling p roducts and services rather than dialing phone numbers, but the practice inconveniences and aggravate s consumers who are hung up on.” (footnote omitted)); id. at 14 , 093 (“[T] he Commission finds that a predictive dialer falls within the meaning and statutor y definition of ‘ automa tic telephone dialing

Case: 13-14008 Date Filed: 09/29/2014 Page: 5 of 326 equipment’ and the intent of Congress. ”). Gulf Coast call ed Mais ’s cell phone about the debt with its predictive dialer between fifteen and thirty time s and left four messages. Gulf Coast similarly placed call s to other putative class members to collect medical debts owed to Florida United. Mais filed a n amended class action complaint against Gulf Coast, Florida United, and Sheridan (collectively, “Defendants”) in the United States District Court for the Southern District of Florida , alleging that the ir collection activities violated the Telephone Consumer Protection Act because Gulf Coast , acting on behalf of Florida United and Sheridan, called Mais’s cell phon e using an automatic telephone dialing system or a prerecorded or artificial voice without his prior express consent

. 1 Before the district court considered the question of class certification, the Defendants moved for summary judgment on the affirmative d efense that the call s could not and did not violate the TCPA because Mais provided “ prior express consent ” to receive them when his wife completed in writing the Hospital admissions forms

. See 47 U.S.C. § 227(b ) (1)( A ) (iii) . The Defendants relied on a 2008 FCC Ruling, which concluded that “the provision of a cell phone number to a creditor, e.g. , as part of a credit application, reasonably

1 Mais ’s amended complaint also named as a defendant Jack W. Brown , III, vice president and part owner of Gulf Coast . The district court separately granted Brown summary judgment because it found Mais pled no substantive cause against him individually and because it saw no evidence that Brown committed, directly participated in, or otherwise authorized the commiss ion of wrongful acts. No appeal has been taken from that summary judgment order, and thus any claims leveled against Brown are not part of this appeal

.

Case: 13-14008 Date Filed: 09/29/2014 Page: 6 of 327 evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” 23 FCC Rcd. at 564

. Defendants further argued that, because the Hospital had consent to use and disclose Mais’s cell phone number under the Health Insurance Portability and Accountability Act (HIPAA), Pub. L.
No. 104

- 191, 110 Stat. 1936 (1996), the TCPA prior express consent exception was satisfied

. Florida United and Sheridan also separately argued that they could not be held vicariously liable for Gulf Coast’s calls because § 227(b)(1)(A) of the
TCPA only reaches those who “ make any call” to a cell pho ne using automatic dialing or a recorded voice . Mais likewise moved for partial summary judgment , arguing that he had not given prior express consent for the calls because the 2008 FCC Ruling did not apply to medical debt and because his cell phone number had been given to the Hospital, not the creditor, Florida United. The district court found that Mais, not the Defendants , was entitled to summary judgment on the prior express consent defense mounted by Gulf Coast, Florid a United, and Sheridan

. The court began by explaining that satisfaction of HIPAA did not automatically ensure compliance with the TCPA, “a separate statute that imposes separate requirements.” Mais , 944 F. Supp. 2d at 1234. The district court also deter mined that Defendants could not prevail on the basis of the 2008 FCC Ruling. While acknowledging that the Hobbs Act gave the federal courts of appeal s exclusive jurisdiction to review final FCC orders , t he district

Case: 13-14008 Date Filed: 09/29/2014 Page: 7 of 328 court determined that it had jurisdiction to examine the FCC’s interpretation of the
TCPA because the central purpose of Mais’s suit was to obtain damages for violations of the statute , not to collaterally attack or invalidate the 2008 FCC Ruling . The court concluded that the Federal Communication Commission’s interpretation of “prior express consent” embodied in its 2008 rule was not entitled

to any deference because it conflicted with the clear meaning of the TCPA

. See Chevron, U.S.A., Inc. v. Natural Res

. Def

. Council, Inc. , 467 U.S. 837 , 843 n.9 (1984) (“ The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. ”). According to the district court, implying consent from th e provision of a cell phone number to a creditor impermissibly expanded the statutory exception to

cover “prior express or implied consent. ” Mais , 944 F. Supp. 2d at 1239

. Compare Black’s Law Dictionary 346 (9th ed. 2004) (defining “express consent”
as “ [c]onsent that is clearly and unmistakably stated”), with id. (defining “ implied consent” as “[ c]onsent inferred from one’s conduct rather than from one’s direct expression”). Cut loose from any FCC rulemaking concerning the meaning of prior express consent, and thus interpreting the language found in the Act afresh,

t he district court concluded that listing Mais’s cell phone number on the Hospital admissions documents alone did not evince prior express consent to receive autodialed or prerecorded calls

. In the a lternative , the district court also ruled that,

Case: 13-14008 Date Filed: 09/29/2014 Page: 8 of 329 even if the FCC’s interpretation of the meaning of prior express consent found in the 2008 FCC Ruling was valid and binding, the rule would not apply under the facts of this case because it was designed to cover consumer and commercial contexts and did not reach medical settings . Moreover, the district court determined , the FCC’s 2008 rulemaking would not apply here because Ma is’s wife gave his number only to the Hospital and not to the creditor, Florida United

. At the same time , the district court ruled that defendants Sheridan and Florida United were entitled to summary judgment anyway because they could not be held vicariou sly liable under the Telephone Consumer Protection Act for Gulf
Coast’s calls

. Ultimately, the district court granted summary judgment to Mais against Gulf Coast in part, rul ing that he was entitled to $500 per call in statutory damages for each of fifteen violative calls placed to his cell phone, as well as an injunction ordering Gulf Coast not to place any further calls to Mais’s cell phone in violation of the TCPA. The court left for trial the singular issue of whether Gulf Coast willfully or kno wingly violated the TCPA, and thus whether Mais would be entitled to up to treble damages. After unsuccessfully seeking reconsideration of the summary judgment order, Gulf Coast asked the district court to certify the prior express consent issue for inter locutory 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

Case: 13-14008 Date Filed: 09/29/2014 Page: 9 of 3210 immediate appeal from the order may materially advance the ultimate termination of the litigation .” 28 U.S.C. § 1292(b). 2 The district court certified four questions to this 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 care setting; and 4) Whether a medical provider’s consent to use and disclose patient information, including phone numbers, u nder HIPAA 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. This Court granted Gulf Coast ’s timely petition for pe rmission to appeal under § 1292(b).

2 In full, § 1292(b) provides: When a district judge, in making in a civil action an order not otherwi se appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultima te termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however , That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. Case: 13-14008 Date Filed: 09/29/2014 Page: 10 of 3211 Though the certified questions may guide our analysis, “[t] he scope of review on appeal under 28 U.S.C. § 1292 ( b ) ‘ is not limited to the precise question certified by the district c ourt because the district court’ s order, not the certified question, is brought before the court. ’ ” Moorman v. UnumProvident Corp. , 464 F.3d 1260, 1272 (11th Cir. 2006) (quoting Aldridge v. Lily

- Tulip, Inc. Salary Ret. Plan Benefits Comm. , 40 F.3d 1202, 1207 (11th Cir. 1994) ); accord Yama ha Motor Corp., U.S.A. v. Calhoun , 516 U.S. 199, 205 (1996) (“[T]h e appellate court may address any issue fairly included within the certified order because ‘ it is the order that is appealable, and not the controlling question identified by the district

co urt. ’” (quoting 9 James W. Moore & Bernard J. Ward, Moore’s Federal Practice ¶ 110.25[1], at 300 (2d ed. 1995)) )

. B. A review of t he statutory and regulatory background is critical to understanding the proper resolution of the issues raised by this appeal. In response to evidence “that automated or prerecorded calls are a nuisance and an invasion of privacy,” Congress passed the T elephone Consumer Protection Act to balance “[i]ndividuals’ privacy rights, public safety interests, and commercial freed oms of speech and trade.” TCPA §2( 9), ( 1 3 ), 105 Stat. at 23 94, 2395 . The TCPA prohibits “any person .

. . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an y

Case: 13-14008 Date Filed: 09/29/2014 Page: 11 of 3212 automatic tele phone dialing system or an artificial or prerecorded voice .

. . to any telephone number assigned to a .

. . c ellular telephone service .” 47 U.S.C. § 227(b)(1) (emphasis added). The TCPA also creates a private right of action that allows a person to seek an injunction or monetary damages based on a violation of § 227(b) or a regulation promulgated thereunder. Id. § 227(b)(3). For each violation, a plaintiff can recover the greater of actual m onetary loss or $500. Id. § 227(b)(3)(B). Up to treble damages are available if the defendant committed a violation willfully or knowingly. Id. § 227(b)(3)(C). Moreover, Congress has confer red upon t he FCC general authority to make rules and regulation s necessary to carry out the provisions of the TCPA. Id. § 227(b)(2) (“The Commission shall prescribe regulations to implement the requirements of this subsection.”); see id. § 201(b) (“The Commission may prescribe such rules and regulations as may be nec essary in the public interest to carry out the provisions of this chapter.”); id. § 303 (“Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall

-- . . . (r) Make such r ules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter .

. . .”). The TCPA emphasizes that “the [FCC] should have the flexibility to design different rules for those types of automated or prerecorded calls that it finds are not considered a nuisan ce or

Case: 13-14008 Date Filed: 09/29/2014 Page: 12 of 3213 invasion of privacy .” Pub. L. No. 102

- 243, § 2(13 ), 105 Stat. at 2395 . As a result, th e TCPA permits the FCC to create exemptions “by rule or order” for certain automatically dialed or prerecorded calls, such as calls not made for a commercial
purpose, 47 U.S.C. § 227(b)(2)(B)(i), calls that will not adversely affect privacy rights and do n ot involve unsolicited advertisement, id. § 227(b)(2)(B)(ii), and calls made to cell phones that are not charged to the called party, id. § 227(b)(2)(C). The first FCC rules implementing the Act came in a 1992 Report and Order that concluded “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 re Rules and Regulations Implementing the Telephon e Consumer Protection Act of 1991 (1992 FCC Order) , 7 FCC Rcd. 8752, 8769 . Therefore, the FCC explained, “telemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached.” Id. In reaching that conclusion, the FCC specifically referenced the House Report on the TCPA, which recognized that , if a person knowingly releases his phone number, calls are permitted because “the called party has in essence requested the contact by provi ding the caller with their telephone nu mber for use in normal business communications.” Id. at 8769 n.57 (quoting H. R. Rep. No. 102

- 317, at 13 (1991) ).

Case: 13-14008 Date Filed: 09/29/2014 Page: 13 of 3214 In 2008, in response to a Petition for Expedited Clarification and Declaratory Ruling filed by AC A International, a trade organization of credit and collection companies, 3 the FCC after notice and comment issued a Declaratory Ruling “clarify[ing] 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 as calls made with the ‘prior express consent’ of the called party.” 2008 FCC Ruling , 23 FCC Rcd. at 559. Specifically, the FCC

“ conclude [d] that the provision of a cell phone number to a creditor, e.g. , as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” Id. at 564. The FCC “emphasize[d] that prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.” Id. at 564

- 65. The Commission conclude d that “the burden will be on the creditor to show it obtained the necessary prior express consent” because “creditors are in the best position to have records kept in the usual course of business showing such
consent.” Id. at 565. As in the 1992 FCC Ord er, the Commission found support for its interpretation of prior express consent from the legislative history of the TCPA, including the House Report , which stated that “[t]he restriction on calls to

3 ACA International filed a brief in this case as amicus curiae in support of Gulf Coast.

Case: 13-14008 Date Filed: 09/29/2014 Page: 14 of 3215 emergency lines, pagers, and the like does not apply whe n the called party has provided the telephone number of such a line to the caller for use in normal business communications.” Id. at 564 (quoting H.R. Rep. No. 102

- 317, at 17). In 2012, t he FCC issued still a nother Report and Order that further interpreted the meaning of the prior e xpress consent exception embodied in § 227(b)(1)(A) of the statute , though the Commission did not change the standard for debt collection calls made to cell phone numbers

. See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2012 FCC Order) , 27 FCC Rcd. 1830

. The 2012 FCC Order required written prior express consent for autodialed or prerecorded calls to wireless or residential numbers that deliver a telemarketing message. Id. at 1838

. It “eliminate[d] the established business relationship exemption for prerecorded telemarketing calls to residential lines” created by the FCC in 1992. Id. at 1845

. And the Commission added an exemption for “all prerecorded health care

- related c alls to residential lines that are subject to HIPAA.” Id. at 1852.
II. We review the grant or denial of a motion for summary judgment de novo

. See Moton v. Cowart , 631 F.3d 1337, 1341 (11th Cir. 2011). In so doing, we draw all inferences and review all evidence in the light most favorable to the non

moving party. Id. Summary judgment is required when “the movant shows that

Case: 13-14008 Date Filed: 09/29/2014 Page: 15 of 3216 there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56( a ).
A.
T he district court e xceeded its jurisdiction by declaring the 2008 FCC Rul ing to be inconsistent with t he TCPA

. Section 402(a) of the Communications Act provides that (except in limited circum stances not relevant here) any “proceeding to enjoin, set aside, annul, or suspend any order of the Commission” must be brought under the Hobbs Act. 47 U.S.C. § 402(a). The Hobbs Act, in
turn, 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; see FCC v. ITT World Commc’ns, Inc. , 466 U.S. 463, 468 (1984) (“Exclusive jurisdiction for review of final FCC orders .

. . lies in the Court of Appeals.”). This procedural path created by the command of Congress “promotes judicial efficiency, vests an appellate panel rather than a single district judge with the power of agency review, and allows ‘ uniform, nationwide inte rpretation of the federal statute by the centralized expert agency created by Congress ’ to enforce the TCPA. ” CE Design, Ltd. v. Prism Bus. Media,
Inc. , 606 F.3d 443, 450 (7th Cir. 2010) (quoting United States v. Dunifer , 219 F.3d 1004, 1008 (9th Cir. 200 0) ); see Nack v. Walburg , 715 F.3d 680, 685 (8th Cir. 2013), cert. denied , 134 S. Ct. 1539 (2014)

. In explaining the reach of the Hobbs

Case: 13-14008 Date Filed: 09/29/2014 Page: 16 of 3217 Act, the Supreme Court has instructed that, “ [ a ] bsent a firm indication that Congress intended to locate initial APA re view of agency action in the district courts, we will not presume that Congress intended to depart from the sound policy of placing initial APA review in the courts of appeals. ” Fla. Power & Light Co. v. Lorion , 470 U.S. 729, 745 (1985)

. Despite these statutory strictures, the district court asserted jurisdiction to review the 2008 FCC Ruling because Mais did not sue with the primary intent “to enjoin, set aside, annul, or suspend” an FCC order, 47 U.S.C. § 402(a), and because Mais’s claim did not necessarily depend on invalidation of the agency’s ruling. The district court reasoned that the FCC’s interpretation of the meaning of the term “prior express consent” could not be reconciled with the statutory language, and therefore it discarde d the administrative agency’s rulemaking determination. In doing so, the district court exceeded its jurisdiction. “Because the courts of appeals have exclusive jurisdiction over claims to enjoin, suspend, or invalidate a final order of the FCC, the dist rict courts do not have it.” Self , 700 F.3d at 461. “That means d istrict courts cannot determine the validity of FCC orders.” Id. By refusing to enforce the FCC’s interpretation, the district court exceeded its power

. “ [D] eeming agency action in valid or ineffective is precisely the sort of review that the Hobbs Act delegates to the courts of appeals in cases challenging final FCC orders .” CE Design , 606 F.3d at 448.

Case: 13-14008 Date Filed: 09/29/2014 Page: 17 of 3218 Moreover, Hobbs Act jurisdictional analysis looks to the “practical effect” of a proceeding, not the plaintiff’s central purpose for bringing suit

. B. F. Goodrich Co. v. Nw. Indus., Inc. , 424 F.2d 1349, 1353

- 54 (3d Cir. 1970) (“The statutory procedure for review is applicable although an order is n ot directly attacked

-- so long as the practical effect of a successful suit would contradict or countermand a Commission order

. ”). T he d istrict courts lack jurisdiction to consider claims to the

extent they depend on establishing that all or part of an F CC order subject to the Hobbs Act is “wrong as a matter of law” or is “otherwise invalid.” Self , 700 F.3d
at 462. The Hobbs Act does not ask whether an FCC order was first invoked as part of a plaintiff’s claim or as an affirmative defense. See Nack , 715 F.3d at 686 ( “ ‘[W]here the practical effec t of a successful attack on the enforcement of an order involves a determinat ion of its validity,’ such as a defense that a private enforcement action is based upon an invalid agency order, ‘the statutory proce dure for revi ew provided by Congress remains applicable. ’ ” (quoting Sw. Bell Tel. v. Ark. Pub. Serv. Comm’n , 738 F.2d 901, 906 (8th Cir. 1984))). In other words , “ [w] hichever way it is done, to ask the district court to decide whether the regulations are valid violates the statutory requirements.” United States v. Any and All Radio Station Transmission Equip. , 207 F.3d 458,
463 (8th Cir. 2000) . “ T he exclusive jurisdiction of the courts of appeals cannot be evaded simply by labeling the proceeding as one other than a proceeding for

Case: 13-14008 Date Filed: 09/29/2014 Page: 18 of 3219 judicial review.” Id. (quoting Sw. Bell Tel. , 738 F.2d at 906 )

. And “ [a] defensive attack on the FCC regulations is a s much an evasion of the exclusive jurisdiction of the Court of Appeals as is a preemptive strike

. ” Id. ; see ITT World Commc’ ns , 466 U.S. at 468 (“ Litigants may not evade [the Hobbs Act] by requesting the District Court to enjoin action th at is the outcom e of the agency’ s order. ”). Put still another way, w hether 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.’” CE Design , 606 F.3d at 448 (alterations in original) (quoting City of Peoria v. Gen. Elec. Cablevision Corp. , 690 F.2d 116, 120 (7th Cir. 1982) ). In the face of ample federal appellate precedent undermining his argument, Mais has point ed us to no decision from any other court conclud ing that a district court had jurisdictio n to invalidate an order like the 2008 FCC Ruling in a dispute between private litigants. 4

4 In Leyse v. Clear Channel Broad casting Inc. , 697 F.3d 360 (6th Cir. 2012), a panel of the Sixth Circuit originally held that the Hobbs Act only deprived a district c ourt of jurisdiction “if the action’s central object is to either enforce or undercut an FCC order.” Id. at 374. Thereafter, however, the panel filed an amending and super s eding opinion that abandoned the “central object” analysis and concluded that the Hobbs Act limited the district court’s jurisdiction over the plaintiff’s claims. See Leyse v. Clear Channel Broad. , Inc. , 545 F. App’ x 444 , 459 (6th Cir. 2013) (unpublished) (“[Plaintiff] knew that Clear Channel’s defense would depend on the FCC’s exempti on provision.”).

Case: 13-14008 Date Filed: 09/29/2014 Page: 19 of 3220 Regardless of which party invoked the 2008 FCC Ruling, then, the district court lacked jurisdiction “to enjoin, set aside, annul, or suspend” it

-- precisely what th e court did . 47 U.S.C. § 402(a). “ To hold otherwise ” and permit a challenge to the 2008 FCC Ruling “ merely because the issue has arisen in private litigation would permit an end

- run around the administrative review mandated by the Hobbs Act. ” Nack , 715 F.3d at 686 . Mais is free to ask the Commission to reconsider its interpretation of “prior express consent” and to challenge the FCC’s response in the court of appeals. See Self , 700 F.3d at 462 (citing 28 U.S.C. § 2344). But he “may not seek collat eral review .

. . by filing claims in the district
court.” Id. Moreover, w e see no merit to Mais’ s argument that the 2008 FCC Ruling was not an order within the meaning of the Hobbs Act. Orders “ adopted by the Commission in the avowed exercise of its rul e - making power ” that “ affect or determine rights generally

. . . have the force of law and are orders reviewable under the ” Hobbs Act. Columbia Broad. Sys. v. United States , 316 U.S. 407, 41 7 (1942) ; see id. at 416 (“ The particular label placed upon [an order] by the Commission is not necessarily conclusive, for it is the substance of what the Commission has purported to do and has done which is decisive. ”). T he 2008 FCC Ruling is a Hobbs Act final order. ACA International filed a petition seeking a declaratory ruling clarif ying the TCPA’s prior express consent exception

. See 47 Case: 13-14008 Date Filed: 09/29/2014 Page: 20 of 3221 C.F.R. § 1.2(a) (“ The Commission may, in accordance with section 5(d) of the Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling terminat ing a controversy or removing uncertainty. ”). T he FCC sought public comment in accordance with its rulemaking procedures. Consumer & Governmental Affairs Bureau Seeks Comment on ACA International’s Petition , 21
FCC Rc d

. 3600 (2006) ; see 47 C.F.R. § 1.415(a) (“After notice of proposed rule making is issued, the Commission will afford interested persons an opportunity to participate in the rulemaking proceeding through submission of written data, views, or arguments . . . .”). Creditors an d collectors filed com ments in support of the petition, while consumer groups and individual consumers submitted comments in opposition. 2008 FCC Ruling , 23 F CC Rc d

. at 56 3

- 6 4 . Thereafter,

t he FCC issued its Declaratory Ruling pursuant to its general rul emaking authority to carry out the TCPA. See id. at 567 (citing 47 U.S.C. § § 227, 303(r)). The 2008
FCC Ruling thus has the force of law and is an order reviewable under the Hobbs
Act in the courts of appeals

. See Leyse v. Clear Channel Broad., Inc. , 545 F. App’ x 444, 455 (6th Cir. 2013) (unpublished) (“[T] here is little question that Congress intended FCC rules of the type at issue here to have force of law. ” ). In short, we hold that the district court was without jurisdiction to consider the wisdom and efficacy of the 2008 FCC Ruling. 5

5 Mais also cites to United States v. Any and All Radio Station Transmission Equip ment , 204

Case: 13-14008 Date Filed: 09/29/2014 Page: 21 of 3222 B. Alt hough the district court lacked the power to review the validity of the FCC’s interpretation of prior express consent, we are obliged to address the alternate holding of the court, that is, whether the facts and circumstances of this case somehow fall outside the scope of the 2008 FCC Ruling

. See Osorio v. State Farm Bank, F.S.B. , 746 F.3d 1242, 1257 (11th Cir. 2014) (“[W] e are not calle d upon here to assess the order’ s validity. We are instead simply deciding whether the FCC’ s . . . ruling is applicable to the present case. ”) ; Self , 700 F.3d at 463 (determining “the scope” of an FCC order)

. The district court found that the 2008 FCC Ruling did not apply to the medic al debt in this case because the Commission had addressed consent only in the context of consumer credit. But the FCC did not distinguish or exclude medical creditors from its 2008 Ruling. Quite the opposite, the FCC’s general language sends a strong mes sage that it meant to reach a wide range of creditors and collectors , including those pursuing medical debts. The 2008 FCC Ruling clarified the meaning of “prior express consent” for all “creditors and collectors when calling wireless telephone numbers to recover payments for goods and services received by consumers.” 23 FCC Rcd. at 563. Moreover, the FCC noted

F.3d 658 (6th Cir. 2000), for the proposition that the Hobbs Act does not always strip the district courts of jurisdiction to review FCC orders. The problem is that case is wholly different. It involved, as the Sixth Circuit noted, a forfeiture action, which that court characterized as “quasi

criminal” in nature. Id. at 667.

Case: 13-14008 Date Filed: 09/29/2014 Page: 22 of 3223 that the debt collection calls at the heart of the 2008 Ruling are primarily regulated under the Fair Debt Coll ection Practices Act (FDCPA), 15 U .S.C. § § 1692

- 1692p, which includes medical bills within its broad definition of “debt”: “ any obligation

. . . of a consumer to pay money arising out of a transaction

. . . primarily for personal, family, or household purposes .” 15 U.S.C. § 1692a . Indeed , we have recognized that the collection of medical debt can give rise to an FDCPA violation.
S ee, e.g. , Bradley v. Franklin Collection Serv., Inc. , 739 F.3d 606 , 607 (11th Cir. 2014) (per curiam). While the 2008 FCC Ruling listed the completion of “a credit application” as an example of the provision of a cell phone number to a creditor , the Commission did so illustratively, not exclusively . 23 FCC Rcd. at 564. Similarly, the fact that the FCC’s interpretation often is invoked in the context of consu mer or commercial creditors does not lessen its application to medical debt collection.
See Mitchem v. Ill. Collection Serv., Inc. , No. 09 C 7274, 2012 WL 170968, at *1

- 2 (N.D. Ill. Jan. 20, 2012) (unpublished); Moise v. Credit Control Servs., Inc. , 950
F . Supp. 2d 1251, 1253 (S.D. Fla. 2011) (“Based 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.” ); Pollock v. Bay Area Credit Serv., LLC , No. 08

- 61101

- CIV, 2009 WL 2475167 , at *1 (S.D. Fla. Aug. 13, 2009) (unpublished) (applying the 2008 FCC Ruling to calls

Case: 13-14008 Date Filed: 09/29/2014 Page: 23 of 3224 made by a defendant “attempting to collect a debt .

. . that arose from personal medical care ”).
W hen it come s to expectations for receiving calls, we see no evidence that the FCC drew a meaningful distinction between retail purchasers who complete credit applications and medical patients who fill out admissions forms like the Hospital’s. A patient filling out a form from a healthcare provider may very well expect to be contacted about his health and treatment. But if the form explicitly states that the provided information will be used for payment and billing, the patient has the same reason to expect collection calls as a retail consumer. Though Mais might prefer a different rule, the FCC in no way indicated that its 2008 order distinguishes medical debtors. Florida United, which sought p ayment for medical services performed for Mais, qualifies as creditor under the 2008 FCC Ruling. Mais also suggests that the 2008 FCC Rul ing does not affect his claim because he did not “provide” his number to “the creditor”

-- neither he nor his wife
pers onally transferred his cell phone number to Florida United or its collection agent, Gulf Coast. After all, his wife submitted the admissions forms and the cell phone number to a representative of the Hospital, an entity separate from Florida United and Gu lf Coast, and t he 2008 FCC Ruling “e mphasize [d] that prior express consent is deemed to be granted only if the wireless number was provided by the

consumer to the creditor , and that such number was provided during the transaction

Case: 13-14008 Date Filed: 09/29/2014 Page: 24 of 3225 that resulted in the debt owed. ” 23 FCC Rcd. at 564

- 65 (emphasis added)

. Boiled down, Mois’s argument turns on whether, under the FCC’s interpretation of prior express consent, a called party “provides” his cell phone number to a creditor when (during the transaction creating the debt) he authorizes an intermediary to disclose his number to the c reditor for debt collection. The 2008 FCC Ruling does not offer an explicit answer to this question because it does not spell out in detail the meaning of “provide.” Based on the regulatory and statutory context, however, we reject Mais’s argument that th e 2008 FCC Ruling only applies when a cell phone number is given directly to the creditor. Mais’s narrow reading of the 2008 FCC Ruling would find prior express consent when a debtor personally delivered a form with his cell phone number to a creditor in connection with a debt , but not when the debtor filled out a nearly identical form that authorized a nother party to give the number to the creditor. Mais offers no functional distincti on between these two scenarios , and w e see no sign that the FCC thought a cell phone number could be “provided to the creditor” only through direct delivery. To the contrary, the 2008 FCC Ruling indicated that prior express consent existed when a cell phone subscriber “ made the number available to the creditor regarding the debt.” 23 FCC Rcd. at 567. Plainly, Mais’s wife made his number available to Florida United by granting the Hospital permission to disclose it in connection with billing and payment.

Case: 13-14008 Date Filed: 09/29/2014 Page: 25 of 3226 In addition, t he FCC recently ruled “ t hat the TCPA does not prohibit a caller from obtaining consent through an intermediary.” In re Group M e, Inc./ Skype
Commc’ ns S.A.R. L. Petition , 29 FCC Rcd. 3442, 3447 (2014). A provider of text messaging services asked the Commission to “clarify that for non - telemarketing voice calls or text messages to wireless numbers . . . the caller can rely on a representation from an intermediary that they have obtained the requisite consent from the consumer.” Id. at 3444. T he FCC after notice and comment issued a Declaratory Ruling that found “ the TCPA is ambiguous as to how a consumer’ s consent to receive an autodialed or prerecorded non

- emergency ca ll should be obtained

. ” Id. Exercising its interpretive discretion, t he FCC explained that “allowing consent to be obtained and conveyed via intermediaries in this context facilitates these normal, expected, and desired business communications in a manner that preserves the intended protections of the TCPA.” Id. at 3445. Of particular no te here , the FCC said that, though the 2008 FCC Ruling “ did not formally address the legal question of whether consent can be obtained and conveyed via an intermediary, ” the earlier order “did ma k e clear that consent to be called at a number in conjunction with a transaction extends to a wide range of calls ‘regarding’ that transaction, even in at least some cases where the calls were made by a third party.” Id. at 3446. The FCC’ s re cognition of “consent obtained

Case: 13-14008 Date Filed: 09/29/2014 Page: 26 of 3227 and conveyed by an intermediary,” id. , strongly supports our conclusion that Mais’s wife “provided” the cell phone number to the creditor through the Hospital.
O ther FCC explications of the prior express consent exception also show that the appropriate analysis turns on whether the called party granted permission or authoriz ation , not on whether the creditor received the number directly. See 2012 FCC Order , 27 FCC Rcd. at 1839 ( “[R]equiring prior written consent will better protect consumer privacy because such consent requires conspicuous acti on by the consumer

-- providing permission in writing

-- to authorize autodialed or prerecorded telemarketing calls .

. . .”); 1992 FCC Order , 7 FCC Rcd. at 87 69 (“[P] ersons 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 .”)

. This conclusion is consistent with the legislative history : the House and Senate Reports explain that the TCPA imposes liability for calls made without the called party’s “prior express invitation or permission.” H.R. Rep. No. 102

- 317, at 2, 3, 13; S. Rep. No. 102

- 177, at 16 (1991). Thus,

u nder the 2008 FCC Ruling a cell p hone subscriber like Mais could provide his number to a creditor like Florida United

-- and grant prior express consent to receive autodialed or prerecorded calls

-- by affirmatively giving an intermediary like the Hospital permission to trans fer the numbe r to Fl orida United for use in billing

. Case: 13-14008 Date Filed: 09/29/2014 Page: 27 of 3228 Mais, through his wife, gave the hospital just such permission. On his beh alf, Mais’s wife gave his cell phone number to a Hospital representative. She received the Hospital’s Notice of Privacy Practices, which inf ormed her that “[w]e may use and disclose health information about your treatment and services to bill and collect payment from you, your insurance company, or a third party payer,” and that “[w]e may also use and disclose health information .

. . [ t ] o bus iness associates we have contracted with to perform the agreed upon service and billing for it.” The Notice explained that, when services are contracted with business associates, including “physician services in the emergency department and radiology,” th e Hospital “may disclose your health information to our business associate so that they can perform the job we’ ve aske d them to do and bill you .” Mais’s wife signed a Conditions of Admission form in which she acknowledged receiving the Notice of Privacy Practices and “permit[ted] the hospital and the physicians or other health professionals involved in the inpatient or outpatient care to release the healt hcare information for purposes of treatment, payment or healthcare operations.” We have little doubt that by signing the admissions forms Mais ’s wife agreed to allow the Hospital to transmit his health information to Florida United so it could bill him fo r services rendered. 6

6 Mais relies on a materially distinguishable district court case. In Moise , a plaintiff claimed that she had not given prior express consent as interpreted in the 2008 FCC Ruling because she had not provided her cell phone number to the creditor, an independent medical laboratory, and

Case: 13-14008 Date Filed: 09/29/2014 Page: 28 of 3229 Mais points o ut that the FCC concluded in its 2008 Ruling that “p rior express consent provided to a particular creditor will not entitle that creditor (or third part y collector) to call a consumer’ s wireless number on behalf of other creditors, including on behalf of affiliated entities. ” 23 FCC Rcd. at 565 n.38

. Here, however, the Hospital did not call Mais on behalf of Florida United. Nor did the Hospital give Mais’s number to a debt collector to make unauthorized calls on behalf of other creditors. Instead, with explicit permission from Mais’s wife, the Hospital passed his cell phone number to Florida United, the creditor who provided radiology services to Mais during his hospitalization. Because Mais’s wife specifically authori zed that transfer of health information for billing purposes, “the wireless number was provided by the consumer to the creditor ” in satisfaction of the prior express consent exception. Id. at 564. Mais finally argues that the term “health informa tion” as used in the Hospital admissions forms does not include his cell phone number. We disagree. The Notice of Privacy Practices refers to “health information” as the contents of

instead had given it only to her docto r. 950 F. Supp. 2d at 125 2

- 5 3

. The district court explained, “if the number was given only to Plaintiff’s treating physician, then Plaintiff did not give prior express consent to [the laboratory] or its third party collector.” Id. at 1253. However, the court concluded that “[t]o whom Plaintiff gave his number remains an issue for trial.” Id. In addition, and in contrast to this case, the district court noted that “the facts do not indicate whether Plaintiff gave his number to his doctor knowing that th e doctor would share that number with other creditors of Plaintiff or for the express purpose of giving his number to other creditors.” Id. at 1254. Here, Mais’s wife gave the Hospital permission to pass on the cell phone number to Florida United in conn ection with the debt.

Case: 13-14008 Date Filed: 09/29/2014 Page: 29 of 3230 the record created by a health care provider, which includ es a patient’s “symptom s, examination and test results, diagnoses, treatment, a plan for future care or treatment and billing

- related information.” The cell phone number listed by Mais’s wife on the Hospital admission form was part of the record from his visit and was contact i nformation related to billing. Mais observes that, at one point, the Notice explains that the Hospital “may use and disclose health information a bout your treatment and services to bill and collect payment.” (emphasis added). T his additional language do es not exclude cell phone numbers; after all, contact information can be quite relevant to treatment and services. Other provisions describe the hospital’s policy of disclosing health information for billing and payment without the “treatment and services ” qualifier. And the Notice elsewhere makes clear that “health information” cover s contact information like cell phone numbers because it tells patients that the Hospital may “use and disclose health information .

. . [t]o remind you that you have an appo intment for medical care; [t]o assess your satisfaction with our services; .

. . [and] [t]o contact you as part of fundraising efforts.” It is hard to see how the Hospital or outside entities could communicate appointment reminders, survey patient satisfa ction, or make fundraising requests without using c ontact information like cell phone numbers. Statutory definitions found in HIPAA also support this interpretation. We agree with the district court that HIPAA compliance does not automatically ensure

Case: 13-14008 Date Filed: 09/29/2014 Page: 30 of 3231 th at a defendant falls within the prior expres s consent exception to the TCPA. The

two statutes provide separate protections, and s atisfaction of the first does not trigger compliance with the second. Nor has the FCC issued an order ruling that satisfactio n of HIPAA amounts to prior express consent to make autodialed or prerecorded debt collection calls to a cell

- phone number. Still, HIPAA’s definition of “health information” informs the meaning of the term when the Hospital used it in a required HIPAA not ice. See 45 C.F.R. § 164.520(a)(1) (“[A]n individual has a right to adequate notice of the uses and disclosures of protected health information

. . . .”). In line with the Hospital’s Notice, HIPAA defines “health information” to include “any information

. . . created or received by a health care provider” that “relates to .

. . the past, present, or future payment for the provision of health care

to an individual.” 42 U.S.C. § 1320d (4) ; see id. § 1320d(6) (“The term

‘ individually identifiable health info rmation’ means any information, including demographic information collected from an individual, that

-- (A) is created or received by a health care provider

. . . and (B) relates to

. . . the past, present, or future payment for the provision of health car e to an individual, and

-- (i) identifies the individual; or (ii) with respect to which there is a reasonable basis to believe that the information can be used to identify the individual. ”). As reflected on a Registration Form, t h e Hospital received Mais’ s wireless number, a piece of information related to future payment.

Case: 13-14008 Date Filed: 09/29/2014 Page: 31 of 3232 Ultimately, b y granting the Hospital permission to pass his health information to Florida United for billing, Mais ’s wife provided his cell phone number to the creditor, consistent with the meaning of prior express consent announced by the FCC in its 2008 Ruling. Gulf Coast is entitled to summary judgment precisely because the calls to Mais fe ll within the TCPA prior express consent exception as interpreted by the FCC. Under the Hob bs Act, the district court lacked jurisdiction to review the Commission’s interpretation. Therefore, we

reverse the partial grant of summary judgment to Mais and remand to the district court with instructions to e nter s ummary judgment in favor of Gulf Coast on its prior express consent defense. REVERSED AND REMANDED . Case: 13-14008 Date Filed: 09/29/2014 Page: 32 of 32