On October 16, the Second Circuit in Nigro v. Mercantile Adjustment Bureau, LLC, ruled against a debt collector by holding that the agency violated the Telephone Consumer Protection Act when it repeatedly called the plaintiff about his deceased mother-in-law’s debt.  Despite the plaintiff providing the number called to the creditor, the Court of Appeals held that the plaintiff did not provide consent to receive calls from an Automatic Telephone Dialing System (ATDS).

Nigro wanted to turn off his deceased mother-in-law’s electricity, and in doing so, contacted the electric company, National Grid.  During this call, National Grid requested and Nigro provided a telephone number for purposes of disconnecting the service.  Unbeknownst to Nigro, there was an outstanding bill of $68.00 on his deceased mother-in-law’s account.

National Grid then hired a debt collector, Mercantile Adjustment Bureau, LLC (MAB), to collect on the account.  From April 2010 through January 2011, Nigro received 72 autodialed calls from MAB — all on the phone number provided by Nigro to National Grid.

As a result of the phone calls, Nigro brought an action asserting claims under the TCPA.  Specifically, Nigro argued that he never consented to the collection calls from MAB.  MAB countered that once Nigro voluntarily provided his phone number to National Grid, he consented to the automated calls.

Under the facts of the case, the Second Circuit held that Nigro did not provide prior express consent to receive the autodialed calls from MAB; therefore, MAB violated the TCPA.  The Court’s decision relied heavily on a 2008 ruling from the Federal Communications Commission, which, in response to a debt collectors’ trade association, emphasized that “prior consent [for automated debt collection calls] is … 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.”

Debt collectors should be aware of the court’s holding in Nigro relating to the use of an ATDS to contact consumers that are not directly responsible for the underlying debt, regardless of whether the consumer provided her contact information to the creditor.