Antitrust Law Daily Wrap Up, PRIVACY—2d Cir: Notice to discontinue decedent’s electric service did not provide consent to call cell phone, (Oct 16, 2014)

By Edward L. Puzzo, J.D.

An individual did not give express or implied consent to calls to his cell phone under the Telephone Consumer Protection Act when he provided his number to an electric company while requesting discontinuation of service to his mother-in-law due to her death, the U.S. Court of Appeals in New York City has ruled (Nigro v. Mercantile Adjustment Bureau, LLC, October 16, 2014, per curiam).

Plaintiff Albert Nigro brought a claim in federal district court, alleging that Mercantile Adjustment Bureau (MAB) had violated the Telephone Consumer Protection Act (TCPA) by sending numerous automated telephone calls to his cell phone while attempting to collect the unpaid electric bill of Nigro’s deceased mother-in-law. The district court granted summary judgment to MAB, holding that Nigro consented to the calls when he contacted the electric company to discontinue service after his mother-in-law’s death. Nigro appealed, and the appellate court reversed and remanded.

Nigro had called his mother-in-law’s electric company after her death in order to discontinue service. At that time, the company asked him to provide a phone number; he obliged by providing his cell telephone number. Subsequently, he received more than 72 automated calls to his mobile phone over a nine month period, seeking payment of his mother-in-law’s $68 unpaid balance.

Consent defined. The TCPA, explained the appellate court, bars the use of an automated telephone dialing system for calls to cellular phone, except for emergency purposes, or with the “prior express consent of the called party.”

MAB argued that Nigro gave his express consent when he gave his number to the company in connection with his mother-in-law’s account and did not expressly limit the purposes for which the number could be used. Under Federal Communication Commission (FCC) rules, the court noted, a business need not obtain express consent for a “prior or existing relationship formed by voluntary two-way communication” which implies consent.

However, the FFC rules provide specific limits on automated calls by debt collectors. For such callers, consent is granted only when the consumer provides the cell phone number to the creditor “during the transaction that resulted in the debt owed.” Under these rules, Nigro plainly did not consent. His call to the electric company was well after the debt was incurred, a debt for which Nigro was in no way responsible. Thus, his call did not arise during the transaction that resulted in the debt owed. The appellate court therefore reversed the lower court’s dismissal of the case and remanded it for further proceedings.

The case Docket No. is 13-1362.

Attorneys: Kenneth R. Hiller for Albert A. Nigro. Bryan C. Shartle (Sessions, Fishman, Nathan & Israel) for Mercantile Adjustment Bureau, LLC.

Companies: Mercantile Adjustment Bureau, LLC

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