FCC Urges Court to Adopt Narrow View of Express Consent” for Autodialed Calls

On June 30, the Office of General Counsel for the Federal Communications Commission filed an amicus brief in the U.S. Court of Appeals for the Second Circuit urging the court to reverse a district court ruling that an individual consented to receiving debt collection calls by providing his cellular telephone number to an electric company for the purpose of disconnecting electric service on behalf of a deceased relative. The brief was filed in response to a request from the court, which is currently considering an appeal filed by Albert Nigro, who contacted Niagara Mohawk/National Grid to disconnect electric service to the apartment of his recently deceased mother-in-law, and subsequently received at least 72 automated phone calls from a third-party debt collector attempting to collect an outstanding balance of $67 due on the account.

The Commission’s brief offers a narrow interpretation of consent under the TCPA. Its approach has implications for telemarketers beyond the facts of the case at hand.

The district court granted summary judgment for the debt collector, finding that by providing his telephone number in connection with the account’s termination, Nigro was aware that there might be a surplus or debt on [the] account that would need to be addressed as part of the termination process.” The FCC disagreed, arguing that the subscriber did not properly consent consistent with its rules.

The FCC addressed two of its precedents regarding consent to receive calls to a wireless telephone number. First, it addressed a 2008 clarification order, in which the Commission held that a person provides express consent to receive autodialed or prerecorded debt collection calls by providing his or her cellular telephone number to a creditor in connection with an existing debt.” This consent, however, must be provided by the consumer to the creditor and must be provided during the transaction that resulted in the debt owed.”

In the brief, the Commission contended that Nigro did not provide his wireless number in connection with the transaction that resulted in the debt. The transaction that resulted in the debt was Nigro’s mother-in-law’s purchase of electric service. Nigro provided his telephone number well after she had purchased electric service (indeed, he provided the number after her death). Thus, the Commission concluded, his consent in connection with the termination of the service did not constitute consent under the 2008 clarification order.

Second, the Commission addressed the interpretation it made in a 1992 rulemaking implementing the TCPA. In that ruling, the Commission held that persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”

The Commission, however, interpreted the scope of that consent narrowly. It contended that Nigro presumably” consented to receiving calls about the termination of the service, but that consent did not extend to debt collection calls about a debt that did not result from his transaction with the creditor. In other words, Nigro’s consent was limited only to calls relating to the termination of service, not to calls made for any other purpose. The Commission’s approach could have far-reaching implications. It could lead to extremely fact-specific determinations of TCPA consent issues, involving telemarketers in potentially extensive examinations of the nature and intent of the transaction during which a contact number was provided. In the end, such an approach might mean that a TCPA class could not be certified in certain situations, because consent would turn on individualized facts, not common questions of law or fact. More broadly, the FCC’s interpretation makes it important for telemarketers to know when the subscriber gave consent and to be able to document the consent. Telemarketers should be cautious when relying on a contact number in a customer record; it may not be enough to demonstrate consent for TCPA purposes.

Finally, agency interpretations such as these typically are accorded deference by the courts. In Talk America, Inc. v. Michigan Bell Telephone Co., 131 S. Ct. 2254 (2011), the Supreme Court ruled that agency interpretations in amicus briefs are entitled to deference. Since the Talk America decision, courts have increasingly sought the FCC’s input on ambiguous issues. One consequence for practitioners is that the Declaratory Ruling is not the only place to look to find authoritative agency interpretations of ambiguous statutes or regulations. More frequently, an agency’s litigation filings are an equally rich source of such interpretations.

Kelley Drye’s TCPA Team regularly tracks trends in TCPA litigation and enforcement. View our practice description or our FCC Petitions Tracker for more information.