Antitrust Law Daily Wrap Up, PRIVACY—N.D.W. Va.: DISH Network to pay $22.5K to consumer for automated calls, (Oct 16, 2014)

By Greg Hammond, J.D.

Satellite TV provider DISH Network L.L.C. was ordered to pay a consumer $22,500 for 31 telephone calls made in violation of the Telephone Consumer Protection Act (TCPA). In partially granting the consumer’s motion for summary judgment, the federal district court in Martinsburg, West Virginia, determined that DISH’s Cisco UCCE Outbound Option, Version 8.5.4 dialer (Cisco dialer) is a predictive dialer that falls under the meaning of “automatic telephone dialing equipment” (ATDS) under the TCPA (Moore v. DISH Network L.L.C., October 15, 2014, Groh, G.).

In December 2011, Chester Moore signed an application with Cintex wireless for a cell phone subsidized by the federal Lifeline program—a program that provides low-income consumers with subsidized cell phone service. Between January 2012 and August 2012, Moore received 31 telephone calls from DISH, using its Cisco dialer, regarding another customer’s past due account. Moore contacted DISH several times, informing the company that it was calling the wrong number, and further requesting that DISH stop calling. After receiving additional calls from DISH, Moore filed suit alleging that the company violated the TCPA. Moore moved for partial summary judgment regarding the 31 calls, and DISH also moved for summary judgment, arguing that it was not liable for the 31 calls or any additional calls Moore claimed were made to his cell phone.

In opposition to Moore’s motion for summary judgment on the 31 calls, DISH argued that Moore cannot recover because: (1) he violated the Lifeline program by obtaining the cell phone DISH called; (2) he was not charged for the calls; and (3) he lacked statutory standing because he was not the “called party” under the TCPA. Additionally, DISH argued that it was entitled to summary judgment for various calls because it did not use an ATDS; Moore lacked statutory and Article III standing; and there was no evidence connecting DISH to the additional calls, outside of the 31 calls the company admitted were made.

First, the court determined that Moore could recover for the 31 calls, because the terms of the TCPA do not (1) exempt calls made to an individual’s cell phone obtained through a wrongful act; (2) require an individual to be charged for calls in order to recover; or (3) limit standing to a “called party” or “intended recipient.” Instead, the TCPA simply allows a “person or entity” to bring such a claim. Consequently, the court determined that Moore had standing to sue under the TCPA, and could recover for any violations of the Act.

The court also found that DISH was not entitled to summary judgment for calls made on its Cisco dialer, finding that DISH’s equipment was a predictive dialer, which “constitutes an automatic telephone dialing system and is subject to the TCPA’s restrictions on the use of autodialers,” according to a 2008 FCC Declaratory Ruling. Although a private investigator may have had Moore’s cell phone when the thirtieth and thirty-first calls were made, the court found that Moore had statutory standing to all calls, as the TCPA does not require that an individual physically possess the cell phone or answer a call to have standing under the Act.

In addition to awarding Moore partial summary judgment on the 31 calls DISH admitted to making, the court also awarded DISH partial summary judgment on the additional calls Moore claimed were made. The court concluded that Moore presented no evidence connecting DISH to the additional calls.

Nevertheless, for the 31 calls that DISH admitted to making, the court found that Moore was entitled to damages. Further, Moore was granted treble damages for the last seven calls made by DISH, because the company willfully and knowingly violated Moore’s rights under the TCPA. Moore was therefore awarded $22,500 in damages.

The case number is 3:13-CV-36.

Attorneys: Harry F. Bell, Jr. (The Bell Law Firm PLLC) for Chester Moore. Amber M. Moore (Steptoe & Johnson, PLLC), and Benjamen Edward Kern (Benesch Friedlander Coplan & Aronoff LLP) for Dish Network, LLC.

Companies: Dish Network, LLC

Cases: Privacy WestVirginiaNews