13‐1362 Nigro v. Mercantile Adjustment Bureau

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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August Term, 2013 (Argued: February 19, 2014 Decided: October 16, 2014)

Docket No. 13‐1362 ___________________

ALBERT A. NIGRO,

Plaintiff‐Appellant, v.

MERCANTILE ADJUSTMENT BUREAU, LLC,

Defendant‐Appellee.

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Before: KEARSE, WINTER, AND WESLEY, Circuit Judges.

Plaintiff‐Appellant Albert Nigro (“Nigro”) seeks reversal of a March 13, 2013 judgment of the United States District Court for the Western District of New York (Skretny, C.J.) granting Defendant‐Appellee Mercantile Adjustment Bureau’s (“MAB”) motion for summary judgment. Nigro asserts that, while attempting to collect his deceased mother‐in‐law’s unpaid electric bill, MAB sent numerous automated telephone calls to his mobile phone in violation of the Telephone Consumer Protection Act of 1991,

, et seq. (“TCPA”). The district court held that Nigro consented to the calls when he contacted the electric company to discontinue his mother‐in‐law’s service after her death. We REVERSE and REMAND. Under the FCC’s interpretation of the statute, Nigro

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did not consent because his number was not “provided during the transaction that resulted in the debt owed.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling, 23 FCC Rcd. 559 ¶ 10 (2008).

REVERSED AND REMANDED.

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KENNETH R. HILLER, Amherst, NY, for Plaintiff‐Appellant.

BRYAN C. SHARTLE (David Israel, Justin H. Holmes, Michael Del Valle, on the brief), Sessions, Fishman, Nathan & Israel, Amherst, NY, for Defendant‐Appellee.

Jonathan B. Sallet, General Counsel, Federal Communications Commission, Washington, DC, for Amicus Curiae Federal Communications Commission. ___________________

PER CURIAM:

Plaintiff‐Appellant Albert Nigro (“Nigro”) seeks reversal of a March 13,

2013 judgment of the United States District Court for the Western District of New

York (Skretny, C.J.) granting Defendant‐Appellee Mercantile Adjustment

Bureau’s (“MAB”) motion for summary judgment. Nigro asserts that, while

attempting to collect his deceased mother‐in‐law’s unpaid electric bill, MAB sent

numerous automated telephone calls to his mobile phone in violation of the

Telephone Consumer Protection Act,

of 1991, et seq. (“TCPA”).

The district court held that Nigro consented to the calls when he contacted the

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electric company to discontinue service after her death. We REVERSE and

REMAND. Under the FCC’s interpretation of the statute, Nigro did not consent

because his number was not “provided during the transaction that resulted in

the debt owed.” In the Matter of Rules and Regulations Implementing the Telephone

Consumer Protection Act of 1991, Request of ACA International for Clarification and

Declaratory Ruling, 23 FCC Rcd. 559 ¶ 10 (2008).

BACKGROUND

In September 2008, Joan Thomas, Nigro’s mother‐in‐law, died. After her

death, Nigro called National Grid, Thomas’s power company, to discontinue

service at her apartment. During the call, National Grid asked Nigro to provide

his phone number; he complied by providing the number to his mobile phone.

The company told Nigro that a phone number was necessary to disconnect

service. At the time of the shut off, however, unbeknownst to Nigro, there was a

balance of $68 on Thomas’s account. When the amount went unpaid, National

Grid hired Defendant Mercantile Adjustment Bureau to collect the debt. Nigro

never received any bill for Thomas’s account. His only communications from

MAB consisted of seventy‐two automated telephone calls over the course of nine

months between April 2010 and January 2011.

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In December 2010, Nigro filed the instant action, asserting, among other

things, claims under the TCPA, which creates a private cause of action against

the senders of certain categories of automated telephone calls. In March 2013,

the district court granted summary judgment to MAB on all of Nigro’s claims.

With respect to Nigro’s TCPA claims, the court held that MAB was not liable

because Nigro consented to the calls when he provided his number to National

Grid. Nigro timely appealed, but pursues only his TCPA claims.

DISCUSSION

The TCPA makes it “unlawful for any person . . . to make any call . . . using

any automatic telephone dialing system or an artificial or prerecorded voice . . .

to any telephone number assigned to a . . . cellular telephone service.”

(b)(1)(A)(iii). There are two exceptions to this categorical bar. The statute

permits calls (i) “made for emergency purposes” or (ii) “made with the prior

express consent of the called party.”

Because there is no dispute as to the

circumstances of Nigro’s call to National Grid or as to what was said during that

call, the narrow question before us is whether MAB’s calls were made with

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Nigro’s “prior express consent” within the meaning of the statute. Id.1

Recognizing that Congress has delegated rulemaking authority over the TCPA to

the Federal Communications Commission (“FCC”),

§ 227(b)(2)(C), both parties

rely principally on FCC rulings to support their respective positions.2

MAB argues that Nigro voluntarily gave his number to National Grid in

connection with Thomas’s account and did not expressly limit the purposes for

which his number could be used. Thus, MAB concludes, he consented to the

automated calls. There is some support for this view in FCC rulings.3 For

example, the FCC has ruled that where there is an “established business

relationship” – a term the FCC defines broadly as “a prior or existing

We review the district court’s grant of summary judgment de novo. Miller v. 1

Wolpoff & Abramson, L.L.P.,

(2d Cir. 2003). 2 Since neither party actually challenges the FCC’s interpretation of the TCPA, we

need not decide the extent to which the Administrative Orders Review Act, also known as the “Hobbs Act,” limits our jurisdiction to review that interpretation, see

(1);

(a); CE Design, Ltd. v. Prism Bus. Media, Inc.,

, 447– 48 (7th Cir. 2010); United States v. Any & All Radio Station Transmission Equip.,

, 463 (8th Cir. 2000). 3 In light of the parties’ understandable reliance on FCC rulings, following oral

argument, we sought the views of the FCC as amicus curiae. We often – but do not always – give “Auer deference” to agency interpretations of their own regulations in amicus briefs. Union Carbide Corp. & Subsidiaries v. C.I.R.,

(2d Cir. 2012). In their submissions responding to the FCC’s brief, however, neither party asks us to give this deference to the agency. Plaintiff merely asks us to apply the weaker “Skidmore deference.” Skidmore v. Swift & Co.,

(1944). This deference we grant, without deciding whether Auer should apply.

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relationship formed by voluntary two‐way communication” – a business need

not obtain specific consent to make automated telephone calls to a consumer. In

the Matter of Rules and Regulations Implementing the Telephone Consumer Protection

Act of 1991, Report and Order, 7 FCC Rcd. 8752 ¶ 34–35 (1992). The “business

relationship” is sufficient consent because it supplies an inference of implied

consent.

Initially, the FCC provided no special treatment for debt collection calls.

The Commission held that these calls were adequately covered by the

“established business relationship” rule. Id. ¶ 39. More recently, however, the

FCC has provided specific limits on automated calls by debt collectors. In

response to a request by a debt collectors’ trade association for a declaratory

ruling, the FCC “emphasize[d] that prior express consent [for automated debt

collection calls] is . . . 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.” In the Matter of Rules and Regulations

Implementing the Telephone Consumer Protection Act of 1991, Request of ACA

International for Clarification and Declaratory Ruling, 23 FCC Rcd. 559 ¶ 10 (2008).

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Under this ruling, Nigro plainly did not consent. He did not provide his

phone number “during the transaction that resulted in the debt owed.” Id.

Indeed, he provided his number long after the debt was incurred and was not in

any way responsible for – or even fully aware of – the debt. For the same reason,

he was not a “consumer”; he was a third party. MAB’s messages themselves

appear to reflect its own recognition that the debt was Thomas’s alone. The pre‐

recorded calls specifically instructed the recipient to “disconnect this call” if he

was not “Joan Thomas.” The FCC’s amicus brief, see note 3, supra, agrees with

this view. Since Nigro did not consent to the calls, they were prohibited by the

TCPA, and the district court erred in granting summary judgment to MAB.4

CONCLUSION

For the foregoing reasons, the judgment of the district court is REVERSED,

and the case is REMANDED for further proceedings.

We do not decide what the outcome would be if a consumer were to open an 4

account with a creditor and initially provide only his home phone number, but later in the course of the relationship provide a wireless number. Whether a subsequently given phone number is given as part of a continuing “transaction,” or a transaction separate from the initial one that “resulted in the debt owed,” is a question for future courts. Here, Nigro sought to close the account, not service it. In no sense was he incurring a debt. Since Nigro was not an official representative of Thomas’s estate, we also need not decide whether the outcome of this case would change if he had been.

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