The Phone Number Must be Given During the Transaction

I hear all the time from defense counsel in robo-call cases that my client provided her phone number and as a result they have consent to call. What they mean by "call" is hundreds of computerized calls to a person's cell phone over a period of months, typically -- who would ever consent to that?

And by "provide" they mean something like giving the cell phone number as a call back in case a customer service call is cut off. Or giving a nurse a contact number to be notified about a family member who was just admitted to the emergency room.

The text of the TCPA is clear: only where there is express consent can an automatic dialer be used to call a cell phone. The FCC's ruling in 2008 first developed the oxymoronic "implied express consent" theory by stating 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.” FCC Ruling 2008, ¶ 10.

I've always read this literally and narrowly because it seems like a departure from the clear mandate of the statute. Consumer to creditor, and during the initial transaction. In other words, show me the original credit card application and if the phone number's there, fine. (Of course, consent can be withdrawn at any time, but that's a different issue.) Later than that, sorry.

The FCC as it turns out thinks I'm right. The case is Nigro v. Mercantile Adjustment Bureau, LLC, Case No. 13-1362, currently pending before the Second Circuit Court of Appeal in New York City. Mr. Nigro called Niagra Mohawk to let them know that his mother-in-law had passed away and asked that they please turn off her utility service. He provided his cell phone number so they could call him back to confirm. Well, turns out that there was a $67 outstanding balance on the account and the power company sent it out to collection with Mercantile, who in turn made more than 70 calls to Mr. Nigro's cell phone using an auto-dialer. He sued, and the trial judge ruled against him on summary judgment, so he took it up to the Second Circuit on appeal.

The Second Circuit panel of three judges then certified a question to the FCC. They asked, "Does a person, who is not a ‘consumer’ and is not responsible for the debt, consent to autodialed debt collection calls within the meaning of 23 F.C.C.R. 559 when he agrees to be called in connection with the termination of a deceased debtor’s account, and the consent did not occur 'during the transaction that resulted in the debt owed.'"

The FCC responded with a letter brief on June 30, 2014 and said the answer was "no." Specifically, the FCC found that the transaction in question was the mother-in-law's original purchase of electric service from the power company. Because Mr. Nigro only gave his cell phone number well after that purchase, and because the termination of the service didn't result in any debt owed, he didn't consent to calls from Mercantile using a robo-dialer.

The FCC also pointed out that consent can be for a limited purpose. Just because you give your number to a company for one reason, doesn't mean they get to call you for any other reason. The FCC then punted on the issue of "consumer," saying that there was no need to decide that Mr. Nigro wasn't a consumer because he wasn't obligated on the debt.

Kudos to the FCC for standing up for consumers and as always, we're happy to review potential cases with you if you think you've got a claim.