FCC Brief in TCPA Case Against Debt Collector Urges Narrow View on Cell Number Consent

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The Federal Communications Commission (FCC) last week threw another clarifying wrinkle in the struggle to understand “express prior consent” to call a cell number for the purpose of debt collection. In an amicus brief, the agency explored some nuance in its 2008 TCPA declaratory ruling while clarifying another ruling from this year.

Judges in the Second Circuit Court of Appeals asked for the FCC to chime in on the matter of prior express consent in a case, Nigro v. Mercantile Adjustment Bureau, before the court on appeal.

The details of this particular case are fairly extraordinary, even for a TCPA consent case that has progressed to the appellate level. The consumer contacted a power company in New York to shut off the service at his recently deceased mother-in-law’s house. In that process, he provided the company with his cell phone number. A debt collection agency acting on behalf of the power company subsequently called Nigro 72 times over a nine month period to collect on a $67 delinquency that remained on his mother-in-law’s account.

Nigro filed suit alleging, among other things, that the collection agency violated the TCPA by not obtaining his consent to call his cell phone for the purpose of debt collection. A district court judge sided with the collector, granting it summary judgment. The judge relied, in part, on the FCC’s 1992 rulemaking order that declared,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.”

When Nigro appealed the case to the Second Circuit, the judges reached out to the FCC for clarification.

In its amicus brief in the case, the FCC pointed to its 2008 declaratory ruling – issued at the request of ACA International — in concluding that Mercantile’s debt collection calls did violate the TCPA and that the district court’s ruling should be reversed on appeal. The FCC noted that the 2008 ruling 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.”

Nigro did provide his cell number to the creditor, but not during the transaction that resulted in the debt owed.

The seemingly straightforward clarification is complicated, however, by another ruling issued recently by the FCC.

In a declaratory ruling issued in March (GroupMe/Skype), the FCC indicated that the 2008 ruling “made 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 by a third party.”

So while the 2008 ruling and GroupMe ruling seem to indicate a broader application of consent, this most recent amicus brief implores ARM companies to apply nuance and look at the individual facts of each situation before deciding whether express consent has been given.

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Posted in Collection Law Firms, Collection Laws and Regulations, Debt Collection, Featured Post, TCPA, Utility Collections .

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  • avatar todd bean says:

    “A debt collection agency acting on behalf of the power company subsequently called Nigro 72 times over a nine month period to collect on a $67 delinquency that remained on his mother-in-law’s account.”

    72 times????? $67.00 bill. That is harassment plain and simple. This is what I don’t understand about your industry. At one point do you not get the message, somebody is NOT paying.

    You called the guy seventy-two freaking times and now you are surprised he found any loophole and ambiguity in the law to sue you???? Really?

    Call them one, two, three, and maybe four times and send a few letters and then sue, send the file back or move the crud on, good Lord, you are surprised you are getting sued? Of course you are getting sued and of course he is going to find any loophole, just like I would.

    Get over yourselves, you have the phone, mail, and courts at your legal disposal. Abuse any of those against the wrong person and you have a nightmare on your hands. I hope the gets every call trebled and can’t believe he waited so long to sue, good for him.

  • avatar Sisko says:

    >>72 times????? $67.00 bill. That is harassment plain and simple. This is what I don’t understand about your industry. At one point do you not get the message, somebody is NOT paying.

    Low balances are usually called on an autodialer. If noone picks up, and nobody calls back, then there is noone to “get the message”. The collection company likely had no way to even know that calling the number would be a problem. 72 calls over 9 months results in 2 calls every week, which is perfectly allowable most states. Of course, the sensible thing would have been for Nigro to call the collection company back and tell them stop calling him. The article doesn’t make this clear, but it doesn’t appear that Nigro is claiming to have been called after he revoked consent to call. In other words– he got some calls but didn’t tell anyone, so then he got angry and went to a lawyer first.

  • avatar Commercial Guy says:

    I agree with you, Sisko, that the number of calls in and of itself doesn’t constitute harassment. However, it seems to me that something is broken somewhere in this process. I am assuming that the debt was in his deceased mother’s name; regardless of whether there was a cell phone number included with the data the creditor provided to the agency, the agency should have scrubbed the accounts before calling at all (at least, if they are prudent). As soon as the scrub comes up “Deceased”, the account should have been closed. In my experience, very few deceased consumers are willing or able to pay, and the exposure created by calling those accounts far outweighs any possible return, at least for a balance like this.

  • avatar todd bean says:

    “The collection company likely had no way to even know that calling the number would be a problem.”

    They do now.

    “So then he got angry and went to a lawyer first.”

    That’s what angry people do.

    “72 calls over 9 months results in 2 calls every week, which is perfectly allowable most states.”

    Allowable? probably.

    Smart? If you want to make somebody angry. See above when you make somebody angry and your conduct is governed by a strict liability statute that broadly intreperted in favor of consumers.

  • avatar Farley Fjnork says:

    sisko says: “Low balances are usually called on an autodialer.”

    Autodialer + Cell phone = Trouble for the CA!

    Autodialer + Cell phone + deceased debtor + no express consent = BIG Trouble for the CA!

    Why is it that when a debtor has problems (lost job, sick child, sick debtor, etc), you guys are so quick to label them as ‘deadbeats’, yet when a CA tramples someone’s rights, doesn’t follow the laws, etc, they are victims of greedy consumer attorneys??
    People in glass houses…

  • avatar todd bean says:

    Why is it that when a debtor has problems (lost job, sick child, sick debtor, etc), you guys are so quick to label them as ‘deadbeats’, yet when a CA tramples someone’s rights, doesn’t follow the laws, etc, they are victims of greedy consumer attorneys??

    The same reason if a consumer files five lawsuits in three years that they prosecute all the way to the bitter end they are called a vexatious litigant; but a debt collector that files thousands of lawsuits and drops every suit they file when a lawsuit is answered; are only looking for default judgments; are just using the court system to try and get paid and doing nothing wrong.

    A buddy of mine got a judgement against a collector and had to hire movers and get a Federal Marshall to show up at their call center and start hauling out the laser printers, before the collector would just “pay what they owe” The proof is posted on another website the I’m sure are all familiar with.

    It’s one of the best collection stories ever. He had the money wired to him in 45 minutes and about three times more than what he was trying to collect by just asking the debt collector to “pay what you owe deadbeat.”

  • avatar Sisko says:

    >>Allowable? probably.
    Smart? If you want to make somebody angry. See above when you make somebody angry and your conduct is governed by a strict liability statute that broadly intreperted in favor of consumers.<>Why is it that when a debtor has problems (lost job, sick child, sick debtor, etc), you guys are so quick to label them as ‘deadbeats’

    I’ve never labelled a consumer a deadbeat prior to actually talking to them and hearing their story. Back when I was on the phones I started every call with the assumption that they were a paying customer. But I’m sure you must know some debt collectors who DO label every consumer as a deadbeat, so now you’re labeling me. And the vicious cycle continues.

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