July 9, 2015
The U.S. District Court for the Southern District of New York has awarded a Time Warner Cable Inc. (“TWC”) customer $229,500 in connection with 163 autodialed calls placed to her cell phone over a 13-month period. The calls were placed using an interactive voice response system (“IVR”) that was meant to call customers who were late paying bills.
TWC defended the calls on three separate grounds: (1) that the IVR calling system is not an automatic dialing system (“ATDS”) within the meaning of the Telephone Consumer Protection Act (“TCPA”); (2) that TWC believed it was calling a different individual who had given prior express consent to receipt of the calls; and (3) that Plaintiff consented to the calls pursuant to the customer agreement.
How did the court address TWC’s arguments?
First, the Court considered TWC’s argument that it’s IVR is not an ATDS, which TWC argued dialed numbers that were plucked from a list of customers that were behind on their bills, and not generated randomly. The Court dismissed the argument, reasoning that the entire process from customer selection and list compilation, to the ultimate dialing process, was fully automated.
Next, the Court rejected TWC’s argument that the TCPA only restricts use of an ATDS when the intended recipient of a call, as opposed to the actual recipient of the call, has not provided prior express consent. TWC argued that the Plaintiff’s cell phone number had been recycled from a previous subscriber who had provided express consent for the calls, and who was the intended recipient thereof. However, the Federal Communications Commission (“FCC”), in connection with the recent adoption of a package of rulings (of which we have previously written), has stated that if a number has been reassigned, then the company must stop calling the number after one call. The Court recognized this fact as confirmation that “called party” is the actual recipient of the call. The Court additionally reasoned that the TCPA’s language is clear in that “called party” means the actual recipient of the call, and has been historically interpreted as such.
Finally, while the Court held that TWC’s customer service agreement with the Plaintiff did provide the requisite express consent for calls using an autodialer, TWC was not relieved of liability because the Plaintiff had expressly revoked her consent and TWC nevertheless called her an additional 153 times thereafter. The Court relied on this fact, as well as the fact that TWC had called Plaintiff 70 times after the filing of the lawsuit to treble damages in this case, such that TWC was liable for $1,500 per call for willful and knowing TCPA violations.
Protect Your Business From Autodialer Related Liability
We have written extensively about increased regulatory interest in autodialers, as well as telemarketing calls placed to cell phones in general. This case provides further proof that the failure to ensure strict adherence to the restrictions involving use of an ATDS can have disastrous consequences for telemarketers. In addition, TWC’s apparent outright refusal to respect the consumer’s revocation of consent, placing an additional 153 calls subsequent to the revocation, subjected it to treble damages on a per call basis for its willful violations. This case reinforces the fact that it is imperative to have telemarketing practices and procedures examined by experienced counsel prior to embarking on any telemarketing campaign.
If you are interested in learning more about this topic, need to review your telemarketing practices and procedures or if you are facing an investigation from a state attorney general or other regulatory agency, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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