The Federal Communications Commission (FCC) recently clarified its view on when someone has provided “prior express consent” to receive prerecorded or autodialed collection calls to his or her cell phone as required by the Telephone Consumer Protection Act (TCPA). The clarification was made in an amicus letter brief the FCC filed in a TCPA case pending before the U.S. Court of Appeals for the Second Circuit. Creditors, debt buyers, and debt collectors who make such calls should have their procedures and documentation reviewed by counsel in light of the FCC’s clarification to make sure that, in the event of a TCPA challenge, they will be able to demonstrate that the requisite consent was obtained.
The FCC’s brief was filed at the Second Circuit’s request in Albert A. Nigro v. Mercantile Adjustment Bureau, LLC. The district court had ruled in the case that the plaintiff gave his “prior express consent” to receive autodialed collection calls to his cell phone number when he provided it to a power company during a call he made to request the discontinuance of electric service to his deceased mother-in-law’s apartment.
The TCPA prohibits autodialed or prerecorded non-emergency calls to cell phone numbers unless the call is made with “the prior express consent of the called party.” In finding that the collection calls the plaintiff received from a debt collector hired by the power company did not violate the TCPA, the district court relied on the FCC’s statement in a 1991 TCPA rulemaking order 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 its brief, the FCC asserted that the plaintiff’s provision of his cell phone number to the power company did not qualify as consent under the TCPA. The FCC indicated that such action did not satisfy the standard established in a 2005 declaratory ruling issued by the agency in response to a petition from a debt collection industry trade association. The FCC ruled that an individual gives express consent to receive autodialed or prerecorded collection calls from creditors or third-party collectors by providing his or her cell phone number in connection with an existing debt if the number was provided by the consumer to the creditor during the transaction that resulted in the debt owed.
According to the FCC, the defendant debt collector could not satisfy this standard because the plaintiff had not given the power company his cell phone number in the transaction that resulted in the debt owed, i.e., his mother-in-law’s purchase of electric service. Instead of giving his number in the transaction in which she arranged for or made that purchase, the plaintiff provided his number after she had incurred the debt at issue.
The FCC notes in its brief that an individual can convey prior consent to receive prerecorded or autodialed debt collection calls to his or her cell phone number by a method other than providing a phone number, such as by a written or oral communication. Noting an absence of evidence indicating that the plaintiff was acting as the representative of his mother-in-law’s estate or otherwise had responsibility for her debts, the FCC states in its brief that it “takes no position on whether there would have been consent had [the power company] been furnished with the telephone number of the administrator or other formal representative of a decedent’s estate regarding a previously incurred, but currently pending, bill against the estate.”
We continue to see a high volume of class actions alleging TCPA violations. In part, this is because the penalties are draconian. Violations can yield damages of $500 per violation or actual damages—whichever is greater—with a tripling of damages for willful violations and unlimited class action liability.