The Federal Communications Commission (FCC) in late June 2014 responded to the Second Circuit Court of Appeals’ request in Nigro v. Mercantile Adjustment Bureau for the FCC to opine on a specific question. The Second Circuit asked whether prior express consent existed under the Telephone Consumer Protection Act (TCPA) for an individual’s provision of a cell phone number when calling about a debt to which he was not obligated. The FCC’s opinion, which may well be binding on the courts, has important implications for any user of an automated telephone dialing system to contact consumers on cell phone numbers.
Nigro contacted a power company in New York to turn off the service at his recently deceased mother-in-law’s house. In that process, he provided the company with his cell phone number. When the debt for the power was never paid, the power company sent the debt to a debt collection agency who, acting on behalf of the power company, called Nigro seventy-two times on his cell phone over a nine-month period to collect on a $67 delinquency that remained on his mother-in-law’s account.
Subsequently, Nigro filed suit in the United States District Court for the Western District of New York, alleging, among other things, that the collection agency violated the TCPA by not obtaining his consent to call his cell phone for the purpose of attempting to collect a debt. A district court judge found for the defendant on summary judgment, relying, in part, on the FCC’s 1992 rulemaking order that declared, “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.” When Nigro appealed the case to the Second Circuit, the judges reached out to the FCC for clarification based upon the FCC’s power to issue rules and regulations implementing the TCPA.
FCC Decision and Practical Implications
The FCC opined that the defendant’s debt collection calls did violate the TCPA and that Nigro had not provided prior express consent when he provided his cell phone number to the power company. Namely, the FCC noted that its 2008 declaratory ruling held that “prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.”
Here, while Nigro did provide his cell number to the power company, which was the creditor, it was not during the transaction that resulted in the debt owed, and, further, was not in connection with a debt that he owed.
The seemingly straightforward opinion by the FCC, however, throws into doubt what has been widespread understanding of prior decisions by the FCC.
In the GroupMe/Skype ruling in May 2014 , the FCC indicated that the 2008 ruling “made clear that consent to be called at a number in conjunction with a transaction extends to a wide range of calls ‘regarding’ that transaction, even in at least some cases where the calls were made by a third party.” The 2008 ruling and GroupMe ruling have been taken to indicate that individuals give a broad form of consent by providing a telephone number in any context, which is a view that has been followed in opinions from Courts of Appeal. However, under the FCC’s new opinion, whether consent is given by the consumer by the act of providing a telephone number requires companies to look at the individual facts of each situation before deciding whether express consent has been given.
In short, the FCC’s opinion is a reminder of how complicated the TCPA can be and, further, is a push for companies to consider taking practical steps in order to ensure that the type of consent given is sufficient for the types of call a company may make.
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