In a recent ruling, the U.S. Court of Appeals for the Second Circuit revived a claim against debt collector under the Telephone Consumer Protection Act (“TCPA”), finding that the recipient of the call never expressly consented to the calls.

The plaintiff, Albert Nigro, called the power company to discontinue service at the home of his recently deceased mother-in-law, Joan Thomas.  As required by the power company, Nigro provided his own telephone number.  Thereafter, the power company hired a third party, Mercantile Adjustment Bureaus (“MAB”) to collect on Thomas’ outstanding debt to the power company.  In connection with those collection efforts, MAB called Nigro. 

Nigro subsequently filed suit against MAB alleging MAB’s calls to Nigro violated the TCPA.  The district court granted MAB’s motion for summary judgment holding that MAB was not liable under the TCPA because Nigro had consented to the calls by providing his number to the power company.

On appeal to the Second Circuit, the Court reversed the district court’s granting of summary judgment and stated that Nigro “plainly did not consent” to the calls.  The Court went on to say that Nigro was apparently not event aware of the debt to the power company, was not responsible for same, and did not provide his telephone number in connection with the transaction that resulted in the debt.  Specifically, the Court cited a 2008 Federal Communications Commissions (“FCC”) ruling finding that Nigro did not consent because his number was not “provided during the transaction that resulted in the debt owed.”

Notably, the FCC also filed a brief in the Second Circuit asking the Court to reverse to district court’s ruling.  In their brief, the FCC similarly argued that Nigro’s provision of his cell phone number to the power company did not qualify as consent to receive autodialed or prerecorded debt collection calls to that number.

As highlighted by this case, often one of the most difficult issues to navigate when considering TCPA compliance is the issue of consent and how it was obtained.