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Nigro v. Mercantile Adjustment Bureau, LLC

United States Court of Appeals, Second Circuit

October 16, 2014

ALBERT A. NIGRO, Plaintiff-Appellant,
v.
MERCANTILE ADJUSTMENT BUREAU, LLC, Defendant-Appellee

Argued February 19, 2014

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, 47 U.S.C. § 227, 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 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).

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.

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

OPINION

Page 805

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, 47 U.S.C. § 227 of 1991, et seq. (" TCPA" ). The district court held that Nigro consented to the calls when he contacted the 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.

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." 47 ...


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