Plaintiff can seek automated, do-not-call damages

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By Pat Murphy
Dolan Media

A plaintiff could recover statutory damages under both the automated-call and do-not-call-list subsections of the Telephone Consumer Protection Act, the 6th Circuit has ruled in reversing a dismissal.

The plaintiff sued in federal court, alleging that the defendant violated the Act by placing 33 unsolicited telemarketing calls to his home, most after he had requested that he be placed on the company’s do-not-call list.

The defendant argued that the plaintiff’s damages did not exceed $75,000 as required for federal diversity jurisdiction over the plaintiff’s related state-law claims.

But the court concluded that that the plaintiff’s requested damages exceeded the jurisdictional threshold because he could recover statutory damages under both the automated-call and do-not-call-list subsections of the Act.

The court said that the fact that the Act includes separate provisions for statutory damages “suggests that a plaintiff could recover under both.”

It explained that §227(c) of the Act, which requires the maintenance of a do-not-call list, “has a threshold requirement that a person ‘receive more than one telephone call within any 12-month period by or on behalf of the same entity.’ Subsection (c)’s private-right-of-action provision also includes an affirmative defense if ‘the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under [§227(c)].’ These provisions do not appear in the automated-call subsection, § 227(b)(3).”

In addition to deciding that diversity jurisdiction existed in the case, the court held that federal courts have federal-question jurisdiction over private TCPA claims such as those raised by the plaintiff.

U.S. Court of Appeals, 6th Circuit. Charvat v. NMP, LLC, No. 10-3390. Aug. 30, 2011. Lawyers USA No. 993-3191.