Telephone Consumer Protection Act Express Consent Narrowed Again

Foley & Lardner LLP

Albert Nigro just wanted to turn off his deceased mother-in-law’s electricity. He called the electric company, but it required that he provide his mobile telephone number to disconnect service. It turned out though that the mother-in-law had an outstanding bill of $68. Nigro did not know about that when he gave his number. He was not legally required to pay it.

The electric company hired a debt collector to recover the $68 owing on the mother-in-law’s account. The debt collector placed 72 autodial calls over the course of nine months to Nigro. In each call, the message asked for the mother-in-law. Eventually, Nigro had enough. He sued under the Telephone Consumer Protection Act. He argued that while he had voluntarily given his number in connection with disconnecting his mother-in-law’s service, he had not given consent for calls about an outstanding debt. The debt collector argued, based on prior Federal Communications Commission rulings, that providing a phone number to a business permitted the business to call it.

The district court agreed with the debt collector. Nigro appealed. In Nigro v. Mercantile Adjustment Bureau, LLC, the Second Circuit, in an unpublished opinion, reversed and adopted Nigro’s rationale. It noted that in 2008 the FCC issued an order emphasizing that “prior express consent [for automated debt collection calls] is... granted only if the wireless number is provided by consumer to the creditor, and such number is provided during the transaction that resulted in the debt owed.” The court held that Nigro plainly did not consent. He did not provide his number “during the transaction that resulted in the debt owed.” In fact, he provided his number long after the debt was incurred and was not even aware of the debt, let alone responsible for it.

The Court specifically stated it was not deciding what the outcome would be if a consumer were to open an account with a creditor and initially provide one phone number but later provide another. It seemed odd that the Court would even raise this issue. One would have thought this issue was dead. In Meyer v. Portfolio Recovery Associates, the Ninth Circuit had ruled that a creditor could only call a number if that number was given at the time of the transaction. No consent came when a consumer provided a new number after the time of the original transaction. The subsequent hue and cry was so deafening that the Court later amended its opinion to remove that statement. That seemed to be that. Apparently the Second Circuit does not think so.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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