Nigro v. Mercantile Adjustment Bureau, LLC

Citations: 769 F.3d 804; 61 Communications Reg. (P&F) 513; 2014 U.S. App. LEXIS 19817; 2014 WL 5286002Docket: Docket No. 13-1362

Court: Court of Appeals for the Second Circuit; October 16, 2014; Federal Appellate Court

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Plaintiff-Appellant Albert Nigro appeals a March 13, 2013 judgment from the United States District Court for the Western District of New York, which granted Defendant-Appellee Mercantile Adjustment Bureau’s (MAB) motion for summary judgment. Nigro claims that MAB violated the Telephone Consumer Protection Act (TCPA) by making numerous automated calls to his mobile phone while attempting to collect an unpaid electric bill from his deceased mother-in-law. The district court ruled that Nigro consented to these calls by providing his phone number to National Grid when he contacted them to discontinue service. However, the appellate court reversed this decision, stating that Nigro did not provide consent as defined by the FCC because his number was not given during the transaction that resulted in the debt owed.

The background reveals that Nigro provided his mobile number to National Grid during a service cancellation call following his mother-in-law's death in September 2008. Unbeknownst to him, a balance remained on her account, leading National Grid to hire MAB for collection. Nigro did not receive any billing statements and only received 72 automated calls from MAB over nine months. He filed a lawsuit in December 2010 focusing on TCPA claims. 

The court examined whether MAB’s calls were made with Nigro's "prior express consent," as the TCPA prohibits automated calls to cellular numbers without such consent, except in emergencies or with prior consent. MAB contended that Nigro's provision of his number implied consent for calls regarding the account. The FCC has previously indicated that an established business relationship can negate the need for specific consent for automated calls, but the appellate court found that Nigro’s situation did not meet this standard.

The 'business relationship' provides implied consent for debt collection calls, as established by the FCC. Initially, these calls were treated under the 'established business relationship' rule without special limitations. However, the FCC later clarified that explicit consent for automated collection calls is only valid if the consumer provided their wireless number to the creditor during the transaction that created the debt. In this case, Nigro did not consent, as he provided his phone number after the debt was incurred and was unaware of the debt, qualifying him as a third party rather than a consumer. MAB's messages indicated recognition that the debt belonged solely to Joan Thomas, as they instructed recipients to disconnect if they were not her. Consequently, the calls to Nigro were unauthorized under the TCPA, leading to the reversal of the district court's summary judgment in favor of MAB. The court reviewed the decision de novo and acknowledged the parties' acceptance of the FCC’s interpretation of the TCPA without challenging it. The court sought the FCC's views as amicus curiae but did not grant Auer deference to the agency's interpretation, opting instead for Skidmore deference. The potential implications of a consumer providing their wireless number after an initial transaction remain unresolved. Nigro’s intent to close the account rather than service it further establishes he did not incur a debt. The court also noted that Nigro was not an official representative of Thomas's estate, which eliminates the need to consider how the case might change under different circumstances.