Yesterday, the Second Circuit held that a plaintiff did not provide his “prior express consent” under the federal Telephone Consumer Protection Act (TCPA) to automated calls to his cell phone when he gave his cell phone number to a power company while seeking to discontinue service at his recently deceased mother-in-law’s apartment. The court adopted the position of the Federal Communications Commission (FCC), which at the court’s invitation submitted an amicus brief in the case. Our prior e-alert on the FCC’s amicus brief is available here.

In Nigro v. Mercantile Adjustment Bureau, LLC, the plaintiff called his mother-in-law’s power company after she died, asked for the discontinuance of service, and provided his mobile phone number because the power company told him that a phone number was required for this request. Unbeknownst to the plaintiff, there was a balance on the account, the account then was referred to a collection agency, and the plaintiff proceeded to receive numerous automated calls to his cell phone from the debt collector. The plaintiff never received any bill for the account.

Following receipt of the automated calls, the plaintiff sued the debt collector under the TCPA, which prohibits automated telephone calls to a cellular phone number except when the call is made for emergency purposes, or was “made with the prior express consent of the called party.” The district court granted summary judgment in favor of the debt collector, reasoning that the plaintiff consented to the calls when he provided his cell phone number to the power company.

The Second Circuit reversed and remanded. The court explained that the crux of the issue was whether the plaintiff provided his “prior express consent” under the particular facts of the case. The court noted that FCC rulings arguably supported each side’s position. The court observed that the FCC has ruled that the existence of an “established business relationship” between the consumer and the creditor—which the debt collector claimed was formed when the plaintiff gave his cell phone number to the power company—obviates the need for the consumer’s specific consent to the automated calls.

However, the court explained that the FCC more recently has placed specific limits on automated calls by debt collectors. It cited an FCC ruling saying that a consumer’s provision of a cell phone number to a creditor may constitute the requisite consent to automated calls from a debt collector only when “the wireless number was provided by the consumer to the creditor,” and “such number was provided during the transaction that resulted in the debt owed.”

Relying on the FCC’s ruling applicable to calls by debt collectors, the Second Circuit held that the plaintiff plainly did not consent because he provided his cellular number to the power company long after the debt was incurred, and therefore not “during the transaction that resulted in the debt owed.” Also significant to the court was that the plaintiff was not himself responsible for—or even fully aware of—the debt, and the debt collector’s own messages acknowledged that the debt was solely that of the plaintiff’s mother-in-law. Therefore, the court held, the plaintiff also was not a “consumer” under the FCC’s ruling; he was a third party.

Finally, in a footnote, the court explained that it was not deciding what the outcome would be if a consumer were to open an account with a creditor and initially provide only his home phone number, then later provide his wireless number. The court stated that whether such subsequent provision of a wireless number is given as part of a continuing “transaction,” or a transaction subsequent to the initial one that “resulted in the debt owed,” was an issue for future courts.

Ballard Spahr’s Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs). In addition to having vast experience in defending TCPA lawsuits, the Group has counseled a number of clients on establishing autodialing and monitoring protocols.

For more information, please contact Practice Leader Alan S. Kaplinsky at 215.864.8544 or kaplinsky@ballardspahr.com, John L. Culhane, Jr., at 215.864.8535 or culhane@ballardspahr.com, Mark J. Furletti at 215.864.8138 or furlettim@ballardspahr.com, or Joel E. Tasca at 215.864.8188 or tasca@ballardspahr.com.


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