Mon, 11/16/2020 - 08:51
This is the first entry in our new series, Your Questions Answered, in which we give detailed answers to TCPA and DNC questions asked by our readers. If you'd like to ask a question for a future entry, there is a form at the bottom of the page.
While the Federal Communications Commission (FCC), Federal Trade Commission (FTC), and state attorneys general also have enforcement powers, the Telephone Consumer Protection Act (TCPA) is primarily enforced through its private right of action, allowing individuals to bring suit under the law.
The original intent was for this right to be enforced in small claims court. In the early years of TCPA litigation, many federal circuit courts told plaintiffs there was no jurisdiction to hear the cases in federal court. However, in the 21st century, that attitude toward enforcing TCPA litigation through small claims courts has been weakened and, as a result, more individual lawsuits are being filed for large dollar amounts in federal courts, especially in the form of class actions.
The penalties for running afoul of the TCPA are levied on a per-violation basis. The standard penalty is up to $500 per violation, with those penalties trebled up to $1,500 per violation for knowing or willful violations.
While these fines are relatively small compared to those exacted by other telemarketing regulations—the fine for violating the National Do Not Call Registry, for example, is $43,280 per violation—they can add up to truly astounding sums due to the fact that the TCPA allows for uncapped statutory damages.
For example, earlier this year, an appeals court affirmed a jury verdict in a TCPA class action against a multi-level marketing company. The defendant was found to have made more than 1.8 million calls that violated the TCPA’s ATDS regulations, resulting in a penalty of $925 million. The very slight silver lining for the defendant in that case is the court opted not to treble the damages into the multiple billions of dollars.
A number of the most punitive TCPA verdicts have involved treble damages. Last year, a court decided in favor of the plaintiff in a TCPA class action against a satellite TV provider. The court opted to award treble damages, finding that the defendant knowingly and willingly violated the law. Interestingly, the initial damages were assessed at a level lower than the maximum—$400 per call rather than $500—but when treble damages were assessed at $1,200 per violation, the total damages amounted to $61 million.
An interesting feature of TCPA penalties is the fact that they can ostensibly be assessed multiple times per phone call if the call violates more than one aspect of the TCPA’s regulations. The TCPA has multiple provisions and it is plausible for a single call to violate multiple provisions at once—for example, an illegal use of an automatic telephone dialing system (ATDS) to place a call to a cell phone without consent AND outside the law’s calling time restrictions.
While it is difficult to find an example of the TCPA being enforced in such a way, there is one case from last year where a court acknowledged that calls that violate the TCPA in multiple ways are possible. In a lawsuit brought by a notorious serial plaintiff, the district court agreed with the plaintiff’s assertion that all 22 of the calls at issue violated the TCPA’s prohibition on calls being made without an internal Do Not Call (DNC) policy as well as the law’s requirement that callers log the name and contact info of a call recipient who requests not to be called. Ultimately, the court opted to stick to the $500-per-violating-call rather than $500-per-violation penalty amounts; although they did treble the damages, find the violations to be willful, resulting in a total penalty of $33,000.
Ultimately, the TCPA’s per-violation penalty structure combines with the uncapped statutory damages to make for an especially punitive law. The possibility of treble damages and multiple violations per call only exacerbate this.
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