Nigro v. Mercantile Adjustment Bureau: Giving Your Number to Close an Account Isn't Consent to Debt Collection Robocalls

What Happened

After a family member died in 2008, the plaintiff called the electric company to discontinue service at her apartment. The company asked for his phone number, said one was necessary to disconnect service, and he provided his cell number. Unknown to him, the account had a $68 balance.

When that went unpaid the utility hired a debt collector. The plaintiff never received a bill. What he did receive were seventy-two automated calls over a span of nine months, from April 2010 to January 2011. The prerecorded messages told the listener to "disconnect this call" if he was not the account holder.

He sued under the Telephone Consumer Protection Act (TCPA). The district court granted summary judgment to the collector, holding that he consented by giving his number to the utility. He appealed only the TCPA claims.

The Consent Question

The TCPA bars autodialed or prerecorded calls to cell phones unless they are made for emergency purposes or with the "prior express consent of the called party." Both sides relied on Federal Communications Commission (FCC) rulings.

The collector argued that the plaintiff gave his number voluntarily, in connection with the account, without limiting how it could be used. The court acknowledged some support for that view in older FCC rulings treating an "established business relationship" as implied consent.

But the court pointed to a more specific 2008 FCC declaratory ruling on debt collection calls. That ruling said prior express consent exists "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."

Under that standard, the answer was easy. The plaintiff gave his number long after the debt was incurred, and he wasn't responsible for, or even fully aware of, the debt. He wasn't the "consumer" at all. He was a third party. The court noted that the collector's own messages seemed to recognize the debt belonged to someone else. The FCC, which the court invited to file an amicus brief, agreed.

The court gave the FCC's view Skidmore deference without deciding whether stronger deference applied, and it noted neither party challenged the FCC's interpretation. Reversed and remanded.

Questions Left Open

The panel flagged two issues it didn't decide:

• A later-provided cell number. What if a consumer opens an account with only a home number, then later provides a cell number? Whether that's part of a continuing "transaction" is for future courts. Here, the plaintiff was closing the account, not servicing it.
• Estate representatives. He wasn't an official representative of the estate, so the court didn't decide whether that would change anything.

The Takeaway

• Context matters. A number given for one purpose isn't a blanket license to robocall about a debt.
• Know who you're calling. Collectors calling a number tied to a third party face real TCPA exposure, especially when their own scripts admit the debt isn't the listener's.

Read the full Second Circuit opinion.