Second Circuit Reverses Ruling in TCPA ‘Express Prior Consent’ Case

When Albert Nigro contacted National Grid to end electrical service to his deceased mother-in-law’s New York home, he never expected to be bombarded with automated collection calls for someone else’s debt.

So how does a man wind up in the sights of a debt collector’s auto-dialer for a bill that isn’t his own?

During his call with the power company, Nigro gave his cellphone number to Mercantile Adjustment Bureau (MAB), an agency acting on the behalf of National Grid. As a result, MAB called Nigro 72 times between April 2010 and January 2011, attempting to collect a $68 delinquency lingering on his mother-in-law’s account – an account that was not in his name.

It’s easy to imagine what a shock this must have been to Nigro. Not only was he completely unaware of the debt; he never gave MAB consent to contact his cellphone to collect on any debt to begin with.

In response, Nigro filed a suit alleging that Mercantile Adjustment Bureau was in violation of the Telephone Consumer Protection Act (TCPA). The TCPA prohibits automatically dialed or pre-recorded collection calls to cellphones unless they are made with the consumer’s “prior express consent.”

Although a district judge ruled in favor of MAB, citing a FCC rule-making order from 1992, Nigro proceeded to appeal his case with the Second Circuit. This time, the judges contacted the FCC for clarification.

The FCC’s response? MAB’s debt collection calls did – in fact – violate the TCPA, and the district court’s ruling should be reversed on appeal. The FCC went on to explain that “prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and… was provided during the transaction that resulted in the debt owed.” As Nigro’s number was not given to MAB in the context of the original transaction, the ruling was reversed.

While this is an exceptional situation, it demonstrates how a strong understanding of the current TCPA statutes can protect consumers from unauthorized and illegal debt collection tactics. When you’re dealing with dozens of debt collection calls – automated or otherwise – it’s time to speak with an attorney and defend your rights.