Antitrust Law Daily Wrap Up, PRIVACY—D. Colo.: Calls made to cell phone believed to be DISH customer could constitute TCPA violations, (Oct 6, 2014)

By Jody Coultas, J.D.

A consumer stated Telephone Consumer Protection Act (TCPA) claims against DISH Network LLC for calls made to his cellular telephone number that had been entered as the number for a DISH customer, the federal district court in Denver has held. However, the consumer could not state claims for treble damages based on DISH’s allegedly willful violations of the TCPA (Warnick v. DISH Network LLC, September 30, 2014, Daniel, W.).

The consumer’s telephone number was entered into DISH’s records as the contact number for a customer of DISH by error. DISH allegedly made eight robocalls using a pre-recorded voice. Telephone numbers used by DISH to call customers are provided by the customers themselves. Agents verify customer contact information before installation of equipment and re-verify the information each time a customer calls DISH. The consumer never notified DISH that it had the wrong number, and the number was removed from the company’s customer account database about four months after it was entered.

Genuine issues of material fact existed as to how many of DISH’s calls went to the consumer’s voicemail, according to the court. The consumer claimed that DISH made eight calls to him, all of which either went to his voicemail or were answered by him. However, DISH asserted that it attempted to call the consumer eight times but “made” only one call, which it supported with the consumer's telephone records. The TCPA “does not distinguish between calls that are picked up and calls that go to voicemail.” The consumer failed to support his claim that the other seven calls went to voicemail based on records showing that he checked his voicemail shortly after receiving a call from DISH.

The TCPA is applicable to calls made to cellular telephones used for business purposes, according to the court. DISH argued that the consumer’s cellular telephone number was used for business purposes, and that the TCPA did not apply to a business telephone number. The TCPA prohibits calls to “any telephone number” associated with those cellular telephones or related services. Because the language of the TCPA was clear on its prohibition of calls to cell phones, DISH’s arguments for summary judgment were denied.

DISH was also denied summary judgment based on its argument that the consumer’s claim failed because it did not use an automatic telephone dialing system (ATDS). The court noted that, although the TCPA prohibits the use of an ATDS, such use is not a prerequisite for such claims. Plaintiffs can state a claim under the TCPA by alleging the use of an artificial or prerecorded voice or an ATDS. Also, there were genuine issues of material fact as to whether DISH used an ATDS. While DISH provided evidence that its dialer does not have the capacity to use a random or sequential number generator and that the dialer requires human intervention to input the numbers, the consumer provided evidence that the dialer stores the numbers in a database that is part of the dialing system, that the dialer has a sequential dialing mode, and that the dialer places calls over the carrier network without human intervention and plays a prerecorded message if there is a person at the other end of that call.

Intended recipient. The court denied DISH’s motion for summary judgment based on the fact that the consumer was not the intended recipient of the calls at issue. DISH believed that it was calling a customer that had consented to such calls, and that it should not be liable for such claims since the intended recipient had given consent. However, the TCPA does not differentiate between the actual recipient of the call and the intended recipient. Therefore, DISH may be liable under the TCPA despite the consumer not being the intended recipient.

Additionally, DISH failed to support its argument that the TCPA requires “receipt” of a phone call to state a claim, according to the court. An attempt to communicate by telephone constitutes a call under the TCPA.

Willful violation. However, DISH was not liable for a willful violation of the TCPA, according to the court. The consumer sought treble damages based on allegations that DISH's TCPA violation was “willful” or “knowing.” Most courts have defined the willful or knowing standard to require that a party’s actions were intentional, not that it was aware it was violating the statute. The consumer’s number was entered in error as the number of a DISH customer, and the consumer never notified DISH of the error. Therefore, the consumer failed to show that DISH knew that it was calling a non-customer without consent. Such calls were not willful or knowing under the TCPA.

The case is No. 12-cv-01952-WYD-MEH.

Attorneys: Megan Lynn Lindsey (Edelson, PC) for Seth Warnick. David Mehretu (Coblentz Patch Duffy & Bass, LLP) for Dish Network, LLC.

Companies: Dish Network LLC

Cases: ConsumerProtection Privacy ColoradoNews