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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