In Nigro v. Mercantile Adjustment Bureau, LLC, 2013 WL 951497 (W.D.N.Y. 2013), Judge Skretny granted summary judgment to a debt collector on Plaintiff’s FDCPA and TCPA claims. As to the FDCPA claim, Judge Skretny found no actionable telephonic harassment.
Defendant correctly asserts that, under the circumstances of this case, the 72 phone calls in a nine-month period are insufficient as a matter of law to establish a violation of § 1692d(5). Even a high call volume will be insufficient to raise a triable issue of fact with respect to this provision where, as here, there is an absence of some indicia of egregious con-duct. Carman, 782 F.Supp.2d at 1232 (over 140 calls in two month period insufficient to establish violation where record lacked any evidence of egregious con-duct); See Chavious, 2012 WL 113509, *2 (defendant entitled to summary judgment where 36 calls in less than two months were made at reasonable times and not immediately following another); Lynch v. Nelson Watson & Assocs., LLC, No. 10–2025–EFM, 2011 WL 2472588, *2 (D. Kan. June 21, 2011) (56 calls in three month period, without more, insufficient to establish violation).
As to the TCPA claim, Judge Skretny found that the consumer consented to be called on his cellular telephone.
The FCC later stated in another ruling released in January 2008 “that autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the ‘prior express consent’ of the called party.” 23 F.C.C.R. at 564;. Plaintiff does not dispute Defendant’s assertion that he provided his cell phone number to National Grid in September 2008, or that National Grid provided this number to Defendant. (Pl’s Aff ¶ 6; Def’s St. of Undisputed Facts ¶ 8; Pl’s Resp. to Def’s Facts ¶ 8 .) See 7 F.C.C.R. at 2738 (debt collector becomes a party to the relationship between creditor and called party, rendering a separate exemption for debt collection calls unnecessary). He asserts, however, that he “was required to give a telephone number for the purpose of disconnecting service,” and that he “understood that to mean that [his] number was needed only in order to get in touch with [him] if there were any problems associated with this shut-off.” (Pl’s Aff ¶ 6.) Accordingly, he argues that he gave only limited consent for the use of his cell phone number because it was required to effect the disconnection. (Pl’s Mem of Law at 3, Docket No. 26.) Plaintiff’s argument that National Grid put an express limitation on the potential use of Plaintiff’s number is undermined by his own deposition testimony. Plaintiff testified that he expected possible further contact from the company, as he was unsure if Thomas had an outstanding balance or a surplus on her account, and he noted only that he did “[n]ot necessarily” expect that contact to be by phone. (Pl’s Dep at 41–44, 65–67.) In light of this, Plaintiff’s provision of his cell phone number to National Grid was an “invitation or permission to be called at the number which [he had] given, absent instructions to the contrary.” 7 F.C.C.R. at 8769. . . . Finally, Plaintiff argues that there is no exemption here because Plaintiff did not give his cell phone number “during the transaction that resulted in the debt owed.” 23 F.C.C.R. at 564–65. Ignoring the ap-parent conflict between this argument and Plaintiff’s previous assertion that this 2008 FCC ruling is inapplicable to the present case, this argument is also without merit. Plaintiff gave his number in connection with the account’s termination, and, by his own ad-mission, he was aware at that time of the possibility that there might be a surplus or debt on Thomas’ ac-count that would need to be addressed as part of the termination process. (Pl’s Dep at 44.) Accordingly, Plaintiff consented to calls regarding the subject of the transaction, namely the termination of Thomas’ account.