Filed: Jul. 15, 2016
Latest Update: Mar. 03, 2020
Summary: 14-1247 Sterling v. Mercantile Adjustment Bureau, LLC UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE N
Summary: 14-1247 Sterling v. Mercantile Adjustment Bureau, LLC UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO..
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14‐1247
Sterling v. Mercantile Adjustment Bureau, LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 15th day of July, two thousand sixteen.
PRESENT: CHESTER J. STRAUB,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
______________________
PAUL STERLING,
Plaintiff‐Appellee,
‐v.‐ 14‐1247
MERCANTILE ADJUSTMENT BUREAU,
LLC,
Defendant‐Appellant.
______________________
FOR APPELLANT: JAMES K. SCHULTZ, Sessions, Fishman, Nathan &
Israel LLC, San Diego, CA (Bryan C. Shartle, Sessions,
Fishman, Nathan & Israel LLC, Metairie, LA; Michael
Del Valle, Sessions, Fishman, Nathan & Israel LLC,
Amherst, NY, on the brief).
FOR APPELLEE: KENNETH R. HILLER, Law Offices of Kenneth
Hiller, PLLC, Amherst, NY.
Appeal from a judgment of the United States District Court for the
Western District of New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is
AFFIRMED.
In this consumer‐protection case arising from the unwanted receipt of
autodialed debt‐collection calls to a cell phone, Defendant‐Appellant Mercantile
Adjustment Bureau, LLC (“MAB”), a debt collector, appeals from the judgment
of the District Court granting summary judgment to Plaintiff‐Appellee Paul
Sterling on his claim brought under the Telephone Consumer Protection Act of
1991 (“TCPA”), 47 U.S.C. § 227(b)(1)(A), for seventeen telephone calls placed to
his cell phone number using an automatic telephone dialing system. The District
Court adopted, in its entirety, the proposed findings of the Report and
Recommendation issued by the Magistrate Judge (McCarthy, M.J.) and found
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that MAB was liable to Sterling under the TCPA. The parties stipulated as to
damages before the District Court while reserving MAB’s right to appeal the
issue of liability to this Court. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
Following the filing of MAB’s notice of appeal to this Court, the Federal
Communications Commission (“FCC”) issued a declaratory ruling in response to
petitions filed by interested parties, clarifying the meaning of the phrase “called
party” and whether consumers may revoke previously given consent under the
TCPA’s robocall provision. See In re Rules & Regulations Implementing the
Telephone Consumer Protection Act of 1991, Declaratory Ruling & Order No. 15‐72,
30 FCC Rcd. 7961, 7993–8006 (F.C.C. July 10, 2015) (“2015 Declaratory Ruling”).
The FCC held “that the ‘called party’ is the subscriber, i.e., the consumer assigned
the telephone number dialed and billed for the call, or the non‐subscriber
customary user of a telephone number included in a family or business calling
plan.” Id. at 8000–01. In connection with this holding, it found that “calls to
reassigned wireless numbers violate the TCPA when a previous subscriber, not
the current subscriber or customary user, provided the prior express consent on
which the call is based.” Id. at 8001. The FCC, however, carved out a narrow
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limitation to this rule to “balanc[e] the caller’s interest in having an opportunity
to learn of reassignment against the privacy interests of consumers to whom the
number is reassigned,” id. at 8007:
[C]allers who make calls without knowledge of reassignment and
with a reasonable basis to believe that they have valid consent to
make the call should be able to initiate one call after reassignment as
an additional opportunity to gain actual or constructive knowledge
of the reassignment and cease future calls to the new subscriber. If
this one additional call does not yield actual knowledge of
reassignment, we deem the caller to have constructive knowledge of
such.
Id. at 8000 (footnotes omitted).
Although MAB disagrees with the FCC’s interpretation of the statute,
MAB is barred from challenging the FCC’s ruling before this Court. See 28 U.S.C.
§ 2342(1); 47 U.S.C. § 402(a); 47 U.S.C. § 405(a). In accordance with the FCC’s
construction of the statute, then, we conclude that the District Court correctly
determined the issue of liability.
In addition, although the FCC endorsed a one‐free‐bite rule providing for
a one‐call exception to a party, such as MAB, that reasonably relied on
previously obtained valid consent when it initiated its first phone call to the new
subscriber, the parties stipulated as to damages before the District Court, and
MAB does not ask that this stipulation be reformed in any matter in light of the
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2015 Declaratory Ruling. Thus, we find no reason to disturb the judgment of the
District Court.
We have considered the parties’ remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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