Death, Debt Collection and the TCPA: FCC Urges Second Circuit to Limit Scope of Son-in-Law’s Consent
By Matt Gibson
At the end of June, the FCC responded to a request from the U.S. Court of Appeals for the Second Circuit and filed an
As can be inferred from the court’s question, in Mercantile Adjustment Bureau, the petitioner, Albert Nigro, called a utility company to inform it that his mother-in-law had died and to request that the utility disconnect her apartment. During the call, Nigro provided the utility with his personal mobile telephone number.
Fast forward more than a year. Because a balance remained on Nigro’s late mother-in-law’s account, the utility company forwarded her records to Mercantile Adjustment Bureau to collect the outstanding balance. According to the court records, Mercantile Adjustment Bureau then contacted Nigro’s mobile phone number 72 times over a nine-month period using an automated dialing system. Nigro subsequently sued Mercantile Adjustment Bureau under the TCPA, but the trial court dismissed his complaint, finding that his knowing release of his mobile number to the utility company constituted express consent to be contacted at that number using an autodialer or a pre-recorded message.
In its amicus filing, the FCC urged the Second Circuit to reverse the lower court’s decision. According to the FCC, pursuant to its
Although it remains to be seen how the Second Circuit will rule in this case, the FCC’s amicus brief underscores the need for companies using autodialers or pre-recorded messages to implement safeguards to limit the likelihood of – and liability for – automated calls to mobile numbers.
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