2d Cir. Finds Person Who Called in to Utility for Dead Relative Did Not Consent to Receive Auto-Dialed Calls on His Cell Phone Under the TCPA

In Nigro v. Mercantile Adjustment Bureau, the Court of Appeals for the Second Circuit reversed the District Court’s grant of summary judgment on a TCPA claim.  We previously reported on the FCC’s submission to the Second Circuit here (http://www.calautofinance.com/?p=5172) and on the District Court’s Opinion here (http://www.calautofinance.com/?p=3940)   The facts were as follows:

Nigro asserts that, while attempting to collect his deceased mother?in?law’s unpaid electric bill, MAB sent numerous automated telephone calls to his mobile phone in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 of 1991, et seq. (“TCPA”). The district court held that Nigro consented to the calls when he contacted the electric company to discontinue service after her death. We REVERSE and REMAND. Under the FCC’s interpretation of the statute, Nigro did not consent because his number was not “provided during the transaction that resulted in the debt owed.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling, 23 FCC Rcd. 559 ¶ 10 (2008).

The Court of Appeals for the Second Circuit reversed.

Under this ruling, Nigro plainly did not consent. He did not provide his phone number “during the transaction that resulted in the debt owed.” Id. Indeed, he provided his number long after the debt was incurred and was not in any way responsible for – or even fully aware of – the debt. For the same reason, he was not a “consumer”; he was a third party. MAB’s messages themselves appear to reflect its own recognition that the debt was Thomas’s alone. The prerecorded calls specifically instructed the recipient to “disconnect this call” if he was not “Joan Thomas.” The FCC’s amicus brief, see note 3, supra, agrees with this view. Since Nigro did not consent to the calls, they were prohibited by the TCPA, and the district court erred in granting summary judgment to MAB.

In footnote 4, the Court of Appeals noted the limitation of its decision:

We do not decide what the outcome would be if a consumer were to open an account with a creditor and initially provide only his home phone number, but later in the course of the relationship provide a wireless number. Whether a subsequently given phone number is given as part of a continuing “transaction,” or a transaction separate from the initial one that “resulted in the debt owed,” is a question for future courts. Here, Nigro sought to close the account, not service it. In no sense was he incurring a debt. Since Nigro was not an official representative of Thomas’s estate, we also need not decide whether the outcome of this case would change if he had been.