On Tuesday, July 7, 2015 a federal judge in Manhattan (United State District Court, Southern District of New York) entered an order for judgment against Time Warner Cable (TWC) for willful violations of the Telephone Consumer Protection Act (TCPA). The judgment was for $229,500. The order was entered after both parties moved for Summary Judgment.
Editor’s Note: Summary Judgment is also often referred to as “Judgment as a Matter of Law.” It is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for the opposing party to prevail if the matter were to proceed to trial.
Araceli King of Irving, TX brought the action alleging that TWC placed 163 automated or prerecorded calls to her cellular phone without her consent.
As noted above as part of Summary Judgment motions by both parties, the facts of the case were not in dispute.
As part of its business practices TWC utilizes an “interactive voice response” (IVR) system to contact its customers. Between July 3, 2013 and August 11, 2014 Ms. King received 163 calls to her cell phone from the TWC IVR system. Now, here is where it gets interesting. The calls were not directed to Ms. King. They were intended for another TWC customer, Luiz Perez and referenced Mr. Perez in the recording.
Mr. Perez had opened a TWC account in 2012 providing the cell number that Ms. King subsequently possessed during the time period described above. Mr. Perez had relinquished that number some time prior to July 3, 2013 and the carrier had reassigned the number to Ms. King.
By coincidence, Ms. King had also been a TWC customer for long time. She had, as part of her account agreement, signed a contract with TWC that contained the following language:
We may call you at any number you provide us (or that we issue you) for any purpose, including marketing of our Services….However, if you ask to have your number placed on our “do not call” list, we will not call you at that number for marketing purposes….We may use automated dialing systems or artificial or recorded voices to call you.
Ms. King also had, at some point in time, given TWC the same cell number for her account as Mr. Perez.
At this point, TWC believes it is calling its customer, Luiz Perez, but, is in fact calling another of its customers (who had previously provided written consent), Araceli King. However TWC is not calling King about her account.
The problems for TWC began on October 3, 2013 when King answered a call from TWC, was transferred to a live representative, and told that representative that she is not Luiz Perez and asked to have TWC stop calling her. The call lasted for seven minutes. There is no indication that a recording of the call exists.
153 of the 163 calls were made to Ms. King after that October 3, 2013 phone conversation.
However, 74 of the 163 calls were made AFTER TWC accepted service of the Summons & Complaint in this action.
TWC raised several defenses to the claim, including arguing that the IVR system was not an “automated telephone dialing system” (ATDS) under the TCPA. In the end the judge did not accept those arguments.
The judge decided that the 10 calls made before revocation of consent did not violate TCPA, but the other 153 calls were violations. Additionally, because the calls were made AFTER consent was revoked and AFTER service of the lawsuit, the judge determined the TCPA violations to be willful and awarded treble damages ($500 per violation X 153 violations = $76,500. $76,500 X 3 = $229,500).
In Tuesday’s newsletter we wrote about a favorable FDCPA decision. This case involves the same Plaintiff’s attorney. As we mentioned yesterday, Mr. Lemberg is very active in FDCPA and TCPA litigation. This decision is clearly unfavorable to the industry.
However, this case involves a set of facts so amazing that they are hard to fathom or believe.
Calls to the wrong person, yet the wrong person also had an account with TWC. That account holder had previously give consent to call the cell phone. That was an initial stroke of luck for TWC.
But then luck disappears when calls continue after the consumer revokes the prior consent. The account was never properly notated. (Where was the call recording?)
Then, in an absolutely head scratching development, calls continued AFTER the lawsuit was initiated. Where were Policies and Procedures to move this account into a special status after the litigation commenced?
The entire case played out like a bad 3 Stooges or Keystone Cops movie.
By Tim Bauer