A recent decision by a New York federal court serves as a stark reminder of the need for companies to adopt and follow robust “do not call” procedures in order to minimize the risk of rapidly escalating statutory damages under the Telephone Consumer Protection Act. The case appears to be the first to rely on the Federal Communications Commission’s recently-announced but at the time, unreleased TCPA declaratory rulings (previously discussed here). (The order has just been released, but as of this writing, the link was down.)
Earlier this week, in King v. Time Warner Cable, the court awarded plaintiff Araceli King $1,500 for each of the 153 calls the court found that Time Warner Cable had made after she withdrew her consent to receive such calls. The plaintiff alleged that she received 163 autodialed calls using an “interactive voice response” system to her wireless number without her consent between July 2013 and August 2014. TWC was attempting to reach an unrelated customer regarding his past due account balances, and was calling a phone number he had provided to TWC, which had subsequently been reassigned to the plaintiff. The plaintiff alleged that she did not consent to any of the calls, and asserted that all but 10 of the calls were “willful or knowing” because they came after King answered a call and directed TWC to stop all calls to her cellular telephone made in regard to the unrelated customer. The court found that the calls continued even after the plaintiff filed suit: 74 of the 163 calls were made after TWC accepted service of the summons and complaint filed in the action.
Citing the press release summarizing the FCC’s TCPA declaratory rulings adopted at its June 18 open meeting, the court held that (1) with respect to reassigned numbers, the “called party” is the subscriber of the telephone number at the time of the call, and not the intended recipient; (2) predictive dialing systems are “Automated Telephone Dialing Systems” even if they do not generate random or sequential numbers, but place calls from a list; (3) a call to a wireless number made using an ATDS is a violation of the TCPA even if the call is not answered; (4) the Plaintiff could revoke consent she previously had given to be contacted by TWC; and (5) treble damages were appropriate because the defendant knew that the plaintiff had withdrawn her consent. The Court held that the first 10 calls made to the plaintiff before she withdrew her consent were not violations of the TCPA because King, who also was a Time Warner Cable customer, had initially given consent to be called using an ATDS on her wireless number at the time she opened her TWC account.
This case demonstrates that damages under the TCPA, even to an individual plaintiff, can mount quickly as a result of the automatic statutory damages of $500 per violation, which can be trebled for “willful and knowing” violations. In order to avoid potentially significant liability under the TCPA, companies using predictive dialers or other ATDS technologies to contact customers using wireless numbers should take steps to ensure that they both obtain TCPA-compliant consent, and have systems in place to ensure that they can promptly honor any withdrawal of that consent.