A New York federal judge erred in granting summary judgment to collection agency Mercantile Adjustment Bureau LLC in a Telephone Consumer Protection Act prior express consent case, the Second Circuit Court of Appeals ruled on Thursday. The decision revives a lawsuit filed by Albert A. Nigro.
In Nigro v. Mercantile Adjustment Bureau, the plaintiff alleged the collection agency violated the TCPA by repeatedly calling his cell phone to collect on his deceased mother-in-law's electric bill - a $67 delinquency.
The district court previously ruled Nigro had consented to the calls when he contacted the New York-based electric company to have the power shut off, and gave the company his mobile phone number. The court had relied on the Federal Communication Commission's two-decade old order that states anyone who knowingly releases their phone number has "in effect given invitation or permission to be called at the number which they have given, absent instructions to the contrary."
Mercantile Adjustment allegedly called Nigro more than 70 times in a nine-month period. The lawsuit alleged Mercantile Adjustment did not obtain Nigro's consent to call his cell phone to collect on the account.
Nigro appealed the district court's decision and the appellate court panel, citing a requested FCC amicus brief, ruled that there was no TCPA violation. In a 2008 declaratory ruling from the FCC, it noted that prior express consent is granted only when the wireless number was provided by the consumer to the creditors and that the "number was provided during the transaction that resulted in the debt owed."
Nigro did not provide his number under that guidance, the Second Circuit panel ruled. "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."
The case was remanded to the district court for additional proceedings.