Recently, Attorney Siddons was successful in having his client awarded $15,000.00 in statutory damages against a debt collector who violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.
INTRODUCTION TO THE TELEPHONE CONSUMER PROTECTION ACT
The TCPA prohibits “any person within the United States, (or any person outside the United States if the recipient is within the United States) from making any call, other than calls made for emergency purposes or those made with prior express consent of the called party, to use any automatic telephone dialing system or artificial or prerecorded voice to any telephone number assigned to a cellular telephone service or any service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA is a strict liability statute. See Morgan v. Branson Vacation & Travel, LLC, 2013 WL 5532228 at *1 (W.D. Okla. October 4, 2013)(“Respondent’s good faith is immaterial as the statute imposes strict liability for violations”); see also Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011), cert. denied, ––– U.S. ––––, 132 S. Ct. 553 (2011); Branham v. ISI Alarms, Inc., 2013 WL 4710588 at *8 (E.D.N.Y.2013).
In enacting the TCPA, Congress intended to give consumers a choice as to how creditors and telemarketers may call them, and made specific findings that “[t]echnologies that might allow consumers to avoid receiving such calls are not universally available, are costly, are unlikely to be enforced, or place an inordinate burden on the consumer. TCPA, Pub. L. No. 102–243, § 11. “Because the TCPA is a remedial statute, it should be construed to benefit consumers.” Gager v. Dell Financial Services, LLC, 2013 WL 4463305 at *5 (3d Cir. August 22, 2013) (citing Lesher v. Law Offices of Mitchell N. Kay, PC, 650 F.3d 993, 997 (3d Cir. 2011) (construing the FDCPA broadly to effect its purpose)). Furthermore, the Ninth Circuit has confirmed that “Congress intended to regulate the use of [ATDSs] to communicate or try to get into communication with a person by telephone.” Satterfield v. Simon & Schuster, 569 F. 3d 946, 954 (9th Cir. 2009). “Accordingly, the prohibition in the TCPA applies to phone calls placed to cellular telephone numbers even if the intended recipient does not answer the calls. It is the mere act of placing the call that triggers the statute.” Filichio v. MRS Associates, 2010 WL 4261442 *3 (S.D. Fl. Oct. 19, 2010) (citing Satterfield at 954) (emphasis added). “[T]o prove that a respondent violated the TCPA in a case involving a cell phone, a plaintiff must establish that (1) the defendant called his or her cell phone, and (2) the defendant did so using an ATDS or an artificial or prerecorded voice.” Levy v. Receivables Performance Mgmt., LLC, 2013 WL 5310166 (E.D.N.Y. Sept. 23, 2013).
The first element of a TCPA claim is that calls must be placed to a cellular telephone. Id. A plaintiff in a TCPA claim is in the best position to testify that calls were to a cell phone.
AUTOMATIC TELEPHONE DIALING SYSTEM
An “automatic telephone dialing system” (hereinafter “ATDS”) is equipment which has the capacity: 1) to store or produce telephone numbers to be called, using a random or sequential number generator; and 2) to dial such numbers. 47 U.S.C. §227(a)(1). To qualify as an ATDS under the Act, equipment “need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it.” Levy v. Receivables Performance Mgmt., LLC, 2013 WL 5310166 (E.D.N.Y. Sept. 23, 2013 (citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009)).
In Santander v. Nelson, the court granted summary judgment for the claimant, where it was undisputed that the respondent used computer telephone software which utilized “predictive dialing.” Nelson v. Santander Consumer USA, Inc., 2013 WL 1141009 (W.D. Wis. March 8, 2013). In discussing the system used by the respondent in Nelson, as it applies to the definition of an ATDS, the court explained:
In predictive dialing, the system times the dialing of numbers using an algorithm to predict when an agent will become available to receive the next call. To facilitate that method of dialing, respondent created lists of customer telephone numbers to be called on a particular day. Defendant’s employees never called plaintiff by pressing numbers on a keypad.
Id. at *5 (emphasis added). Thus, when equipment is used to call a cell phone, without a human initiating the individual call, the equipment is an ATDS and the TCPA applies.
REVOCATION OF CONSENT
The TCPA prohibits any person from using an automatic telephone dialing system to make calls to any cellular telephone number. 47 U.S.C. § 227(b)(1)(A)(iii). That prohibition exists as a matter of law, absent any affirmative act by a consumer. Id. Only when a consumer affirmatively consents to receive calls made by using an automatic telephone dialing system does the prohibition disappear. Id. A consumer may, of course, revoke consent—if he, in fact, provided it. The FCC has acknowledged that a consumer may terminate consent to receive autodialed calls. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 27 FCC Rcd 15391, 15398 (Nov. 29, 2012). The FCC similarly made clear that subscribers can “revoke consent….by requesting that they not receive further calls from a telemarketer, thus subjecting that telemarketer to the requirements of § 64.1200(e).” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8779 n. 47 (Oct. 16, 1992).
Many courts have held that consumers may revoke orally consent to receive automated telephone calls. See, e.g., Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255–56 (11th Cir. 2014) (“the FCC has provided persuasive guidance confirming that called parties may revoke their consent orally”); Hitchman v. National Enterprise Systems, Inc., 2014 WL 912363 (S.D. Fla. March 10, 2014) (noting that “a majority of courts conclude that consent may be revoked under the TCPA, and that if messages continue after consent is revoked, those messages violate the TCPA”); Beal v. Wyndham Vacation Resorts, Inc., 2013 WL 3870282, at *16 (W.D. Wis. June 20, 2013) (….consumers can revoke their consent to receive autodialer calls under the Telephone Consumer Protection Act and may do so orally); Adamcik v. Credit Control Services, Inc., 832 F. Supp. 2d 744, 753 (W.D. Tex. 2011), appeal dismissed (Feb. 29, 2012) (“[o]ral revocation of consent is legally effective under the TCPA”); Gutierrez v. Barclays Group, 2011 WL 579238, at *4 (S.D. Cal. Feb. 9, 2011) (“[P]rior express consent may be revoked orally and need not be in writing.”).
Additionally, because “the TCPA is silent on how consent to receive autodialer calls can be revoked . . . a host of reasons under the common law and canons of statutory construction [confirm] that an oral revocation should be effective.” Adamcik, 832 F. Supp. 2d at 749 (citing RESTATEMENT (SECOND) OF TORTS § 892A cmt. i. (1979) (“The consent is terminated when the actor knows or has reason to know that the other is no longer willing for him to continue the particular conduct. This unwillingness may be manifested to the actor by any words or conduct inconsistent with continued consent . . . .”); RESTATEMENT (SECOND) OF CONTRACTS § 42 cmt. d (1981) (“Any clear manifestation of unwillingness to enter into the proposed bargain is sufficient [to achieve revocation].”)). Thus, any declaration by a called party to stop calling his cell phone effectively revokes any consent under the TCPA.
DAMAGES UNDER THE TCPA
The TCPA states that a plaintiff may bring “an action to recover for actual monetary loss from [a violation of the TCPA], or to receive $500 in damages for each such violation, whichever is greater.” 47 U.S.C. § 227(b)(3)(B) (emphasis added); Charvat v. GVN Michigan, Inc., 561 F.3d 623, 631-32 (6th Cir. 2009) (“damages are awardable on a per-call basis”). A court does not have discretion to award a plaintiff less than $500 for each violation of the TCPA. See Adamcik v. Credit Control Servs., Inc., 832 F. Supp. 2d 744, 754 (W.D. Tex. 2011), appeal dismissed (Feb. 29, 2012). There is discretion to award more, however. The TCPA permits treble the mandatory $500 per-violation award “[i]f the court finds that the defendant willfully or knowingly violated” the TCPA. 47 U.S.C. § 227(b)(3)(C). The Communications Act—of which the TCPA is a part—states that “the term willful . . . means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this chapter.” 47 U.S.C. § 312 (emphasis added). It follows that treble the TCPA’s mandatory $500 per-violation award is permissible where a defendant consciously uses an automatic telephone dialing system to make the subject calls—even if the defendant does not specifically intend to violate the TCPA. The Ohio Supreme Court held: “[T]o establish a knowing violation of the TCPA for an award of treble damages, a plaintiff must prove only that the defendant knew that it acted or failed to act in a manner that violated the statute, not that the defendant knew that the conduct itself constituted a violation of law.” Charvat v. Ryan, 116 Ohio St. 3d 394, 399 (2007) (emphasis added). Stated otherwise, a court may treble the TCPA’s mandatory $500 per-violation award if it is convinced that a defendant knew it was using an automatic telephone dialing system to make the calls at issue.
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Legal Disclosure: The information contained herein, is not intended to – and does not – create an attorney-client relationship. This article is not intended to provide legal advice, and readers should refrain from acting on information contained herein without seeking specific legal advice from individually qualified counsel.