Determining Whether Prior Express Consent has Been Given has Become More Nuanced

There has been an increasing amount of litigation brought under the Telephone Consumer Protection Act (TCPA). As a result, the Federal Communications Commission (FCC) is being called upon more often to address the complex questions that arise from applying this analog statute to the digital world.

In a recent case Nigro v. Mercantile Adjustment Bureau, LLC, the FCC filed a brief amicus curiae on whether the defendant was permitted under the TCPA to call the plaintiff in an attempt to collect a debt. In this case, Albert Nigro contacted a New York power company to discontinue the service in his recently deceased mother-in-law’s name. In doing so he also provided the company with this cell phone number. After this, Nigro was contacted on his cell phone by a debt collector trying to collect a $67 debt that remained on his mother-in-law’s account. The debt collector called Nigro 72 times over a period of nine months.

In the lawsuit Nigro brought in federal court in the Western District of New York he alleged that the debt collector violated the TCPA because it had not obtained his prior express consent to be contacted. After relying on the FCC's 1991 Rulemaking Order, which stated that "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," the district court granted the debt collector’s motion for summary judgement.

The district court's decision was appealed to the Second Circuit. The Second Circuit sought the FCC’s view on the issue. Specifically they asked whether the facts that Nigro was not the consumer responsible for creating the debt and the "consent" given occurred when the plaintiff was trying to terminate his mother-in-law’s account rather than during the transaction that resulted in the debt owed mattered when determining if prior express consent had been obtained.

The FCC submitted a brief concluding that the district court's analysis was faulty. Under the 2008 Clarification Order the FCC 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." The FCC concluded that the plaintiff had not given his prior express consent because he provided his cell phone number after the debt had already been incurred by his mother-in-law.

The FCC's position in this case is important given a decision made earlier this year which suggested that voluntary provision of a wireless number remains a valid method for obtaining prior express consent. In the decision In the Matter of GroupMe, Inc., the FCC indicated that under its 2008 Order it was "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 to a third party." Based on the GroupMe decision providing a cell number to cancel an account would qualify as prior express consent and a debt collector would be able to contact that number in an attempt to collect on a debt. However, the decision in Nigro appears to make the rule of when prior express consent is obtained less clear. This could be detrimental to companies given the penalties for violating the TCPA. Companies will need to be much more cautious when contacting wireless numbers because, depending on the transaction, obtaining the number may not be considered as prior express consent under the TCPA.

Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the Fair Debt Collection Practices Act and how debt collectors should act. For more information, click here to learn more about this act and how it can help you.

We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 or visit our website at http://www.krohnandmoss.com/.