FCC Letter Brief to 2nd Circuit Narrowly Construes Recent TCPA Guidance

We reported last spring on two FCC declaratory rulings, GroupMe and Cargo Airline, that included some broad, business-friendly interpretations of rules implementing the Telephone Consumer Protection Act (TCPA), under which plaintiff class actions are thriving. The rulings also reinvigorated an FCC statement from when it first adopted TCPA rules in 1992, that a consumer’s provision of a cell phone number in a transaction with a company may be deemed prior express consent to be called at that number. But in a letter brief filed in Nigro v. Mercantile Adjustment Bureau (at the invitation of the U.S. Court of Appeals for the 2nd Circuit) the FCC seems to lean back the other way by narrowly construing its recent rulings and 1992 guidance.

In Nigro, the plaintiff-appellant contacted his then recently deceased mother-in-law’s electric company to request discontinuance of her service, and at that time gave the company his cell number. Mercantile Adjustment called Nigro’s cell phone using an automatic dialing system in connection with a balance due on the account that the electric company hired it to collect. Nigro’s suit alleged that the collection efforts violated the TCPA’s ban on autodialed and/or prerecorded calls to cell phones made without the called party’s prior express consent. The trial court dismissed the case based on the FCC’s guidance in 1992 on imputing express consent based on a person’s knowing release of a cell number to a company, and on a 2008 FCC ruling that deemed prior express consent to exist for autodialed/prerecorded calls to cell phones to collect debts, where the debtor provided the number to the company during the transaction in which the debt arose.

On appeal, the 2nd Circuit sought the FCC’s views on how these rulings affected Nigro’s claims. In a letter brief to the Court of Appeals, the FCC construed the 2008 debt collection ruling and 1992 precedent quite narrowly, in something of a break from its GroupMe and Cargo Airline decisions. Regarding the debt collection ruling, the FCC noted the transaction that resulted in the unpaid balance was Nigro’s mother-in-law’s purchase of electric service. Accordingly, he did not give the company his cell number during the relevant transaction, but rather only after the debt was incurred, and the discontinuance of service was not the transaction that “resulted in the debt.” Thus, stated the FCC, “Nigro’s voluntary provision of his … number … for the limited purpose of service termination did not convey his consent to receive calls that go beyond that limited purpose.” The FCC also disavowed that the calls could be permissible under the 1992 language that the 2008 debt collection ruling echoed.

The letter brief, which was signed by the FCC’s General Counsel, takes a notably less generous view of the 1992 statement and 2008 declaratory ruling than the GroupMe and Cargo Airline decisions, even though the more restricted interpretation in the letter brief repeats the observation that “Congress did not expect the TCPA to be a barrier to normal, expected, and desired business communications.” The position adopted in its letter brief belies that observation.

It would be a shame if, in the FCC’s view, calls in the course of “normal, expected and desired business communications” are permissible only if no one objects after-the-fact. That is an impossible metric around which to build a compliance program. Future FCC rulings are needed to establish whether there are any circumstances in which a consumer giving a cell number to a business will be deemed consent to receive autodialed or prerecorded calls in the normal course of business.