On October 16, 2014, the US Court of Appeals for the Second Circuit held in Nigro v. Mercantile Adjustment Bureau, LLC that a debt collection agency violated the Telephone Consumer Protection Act of 1991 (TCPA) when it repeatedly called Albert Nigro while trying to collect his deceased mother's debt (No. 13‐1362 (2d Cir. Oct. 16, 2014)).

Albert Nigro sued the debt collection agency Mercantile Adjustment Bureau, LLC (MAB) and alleged that it violated the TCPA by sending automated calls to his cell phone, without his prior express consent, while attempting to collect a debt his deceased mother owed National Grid, an electric company. The TCPA prohibits parties from making automated or prerecorded calls to an individual's cell phone, unless the call is made either:

(47 U.S.C. § 227(b)(1)(A).)

Nigro provided his number to National Grid when he called to disconnect his mother's electricity. At the time, National Grid told Nigro that it needed a phone number to disconnect the service. When the service was disconnected, a balance remained on the account. Once the balance became overdue, National Grid hired MAB to collect the money. Between April 2010 and January 2011 MAB sent Nigro 72 automated telephone calls in an attempt to collect his mother's debt.

MAB argued that Nigro voluntarily gave his number to National Grid in connection with his mother's account and did not expressly limit how his number could be used. The US District Court for the Western District of New York granted summary judgment to MAB and held that Nigro consented to the calls when he provided his number to National Grid.

The Second Circuit reversed the district court's decision and found that MAB violated the TCPA by sending automated calls to Nigro without his prior express consent.

The court rejected MAB's argument that Nigro provided his prior express consent to be called when he gave his number to National Grid to disconnect his mother's service. The court based its decision on a 2008 declaratory ruling from the Federal Communications Commission (FCC) that specifically limited how debt collectors can use automated calls (see Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559 (2008)). This 2008 declaratory ruling emphasized that prior express consent for automated debt calls is granted only when a consumer provides his number:

The court found that Nigro did provide his number to National Grid (the creditor), but that he did so long after the debt was incurred. The court also found that Nigro was a third party, not a consumer, under the 2008 declaratory ruling because he was not responsible for or even aware of his mother's debt.

Therefore, the Second Circuit held that Nigro never provided his prior express consent to receive the calls.

The FCC has limited how creditors can use a consumer's cell phone number. When a consumer provides his number to a creditor, this serves as reasonable evidence that he has provided prior express consent to be contacted at that number regarding his debt. However, as this decision and the 2008 FCC declaratory ruling note, this applies only when the consumer provides the number:

A creditor cannot send automated or prerecorded calls to a party who:

For more general information on complying with the TCPA, see Practice Notes, Advertising: Overview: The Federal Communications Commission Act and Direct Marketing: Telephone Consumer Protection Act.