The 2nd U.S. Circuit Court of Appeals recently reversed a judgment against Mercantile Adjustment Bureau for alleged violations of the Telephone Consumer Protection Act (TCPA).
The TCPA bans companies from sending automated or robocalls to cellphones without first obtaining consent. Plaintiff Albert Nigro alleged in the TCPA lawsuit that Mercantile Adjustment Bureau made numerous automated telephone calls to his mobile phone attempting to collect a debt for his deceased mother-in-law’s unpaid electric bill and was in direct violation of the Telephone Consumer Protection Act of 1991.
Originally, the district court held that Nigro consented to the calls when he contacted the electric company to discontinue service after his mother-in-law’s death, when he provided his cell phone number after he was told it was necessary in order to disconnect the service. Subsequently, he received numerous robocalls from Mercantile Adjustment Bureau in an attempt to collect on the debt.
Mercantile Adjustment Bureau was not held liable with respect to Nigro’s TCPA violation claims because Nigro consented to the calls when he voluntarily provided his cell phone number to the electric company.
Under the new ruling, Nigro did not consent to give his phone number for the purpose of debt collection but rather to disconnect a service. Therefore, he acted as a consumer and third party. The nature of the automated calls specifically instructed the recipient to “disconnect this call” if the recipient was not “Joan Thomas.”
Since Nigro did not consent to the calls, the appeals court found that they were prohibited by the TCPA and that the district court erred in granting a summary judgment to Mercantile Adjustment Bureau.
What is the Telephone Consumer Protection Act?
The TCPA was passed into law in 1991 to curtail certain kinds of invasive telemarketing practices. The TCPA was a merging of two bills in Congress, and it deals with several distinct issues:
- Use of automated dialing equipment and prerecorded messages
- Telemarketing calls using “live” callers
- Facsimile (fax) transmissions
In 2003, the FCC amended its rules under the TCPA to implement the national Do Not Call list. Under the TCPA, people who have received prerecorded calls, or auto-dialed calls to cellphones, may bring suit (in their local state court, including in small claims court) against the person or company making those calls if they violate the TCPA. The statute provides statutory damages, generally from $500 to $1,500 for each violation, which are paid to the consumer. A number of court challenges to parts of the TCPA have been brought without success.
Join a Free TCPA Class Action Lawsuit Investigation
If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.
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One thought on Appeals Court Reverses TCPA Case, Finding Plaintiff Didn’t Consent to Calls
we were receiving several calls from someone claiming to be with att, I have both home & cell on no call list, I am an att employee, i kept track of several calling from numbers which the calls were made and also opened a case with the FCC, I have a class # 52470333 with FCC that lasted for well over a month and several friends, family and employees were getting them.