District Court (W.Va.) Holds that “Wrong Party” Holder of “Life-Line” Phone Can Bring TCPA Claim Even if He Should Not Have Been Entitled to Such a Phone

In Moore v. Dish Network L.L.C., 2014 WL 5305960 (N.D.W.Va. 2014), Judge Groh granted summary judgment to a TCPA “wrong party” Plaintiff. The facts were as follows.

On December 19, 2011, Chester Moore signed an application with Cintex wireless for a cell phone subsidized by the federal Lifeline program. At the time of his application, Moore had a cell phone with another service provider through that program. The Lifeline program provides low-income consumers with subsidized cell phone service. See 47 C.F.R. § 54.401. To qualify for this program, “a consumer must not already be receiving a Lifeline service.” Id. § 54.409(c). In response to his application, Cintex provided Moore with a cell phone with a number ending in 2882. . . .During the period in which these calls occurred, Moore called DISH several times and informed DISH that it was calling the wrong number and asked DISH to stop calling the 2882 number. On June 11, 2012, in response to one of these calls, DISH added the 2882 number to its do-not-call list. Pl.’s Notice of Filing, Oct. 29, 2013, ECF 48–7 at 8. Additionally, DISH’s notes for the account underlying the phone calls reflect that Moore called DISH on June 22, 2012, July 12, 2012, and July 19, 2012 concerning the calls to the 2882 number. Specifically, these notes read: (1) June 22–“added [the 2882 number] to the internal DNC list”; (2) July 12—“stated Chester (not a DISH customer) called and stated that he was getting calls to his phone [the 2882 number]”; and (3) July 19—“Mr Chester Moore, upset w/ calls on cell phn, says contact 4 months, phn # no longer belongs.” Pl.’s Notice of Filing, Oct. 29, 2013, ECF 48–5 at 47–48 (capitalization omitted).

The District Court stated that the TCPA did not allow the Defendant to raise the defense that the Plaintiff should not have been entitled to get the telephone in the first place.

DISH argues the Court should preclude Moore from recovering under the TCPA on the ground that he should not profit from a wrongful act—i.e., his possession of the Cintex cell phone in violation of the Lifeline program. The plain language of the TCPA does not exempt calls made to a cell phone that an individual obtained through a wrongful act. See 47 U.S.C. § 227(b)(1)(A)(iii). DISH also does not cite any case where a court has dismissed a claim on such a basis. Acknowledging that this defense has no basis in the TCPA or case law concerning the TCPA, DISH urges that the Court should preclude Moore from recovering as a matter of public policy because, but for Moore’s violation of the Lifeline program, DISH would not have called him. . . . .Here, in contrast, Moore’s wrongful act did not cause DISH any harm. DISH’s alleged violations of the TCPA are the harm at issue in this case, and DISH made the phone calls that allegedly caused those violations independently of Moore’s violation of the Lifeline program. Thus, this case also does not support DISH’s position. ¶ In sum, DISH’s public policy defense has no basis in the TCPA and all of the cases that DISH relies on for this defense applied the general principle that an individual should not profit from his wrongful acts in circumstances that are distinguishable from this case. Accordingly, the Court rejects DISH’s argument that Moore’s violation of the Lifeline program precludes him from recovering for DISH’s independent violations of the TCPA.

The District Court found that the Plaintiff did not have to prove that he was charged for the call.

Next, DISH contends that Moore cannot recover because the TCPA requires that he be charged for the calls made to the 2882 number. Moore does not dispute that he was not charged for any of the calls or the cell phone, but counters that the TCPA’s terms do not impose this requirement. The “rule of last antecedent” provides that “a limiting clause or phrase … should ordinarily be read as modifying only the noun or phrase that it immediately follows.” United States v. Hayes, 555 U.S. 415, 425 (2009). Applying this rule, “for which the called party is charged for the call” modifies only “any service.” Page v. Regions Bank, 917 F.Supp.2d 1214, 1220 (N.D.Ala.2012); see also Gutierrez v. Barclays Grp., Civil Action No. 10CV1012 DMS BGS, 2011 WL 579238, at *5 (S.D.Cal. Feb. 9, 2011). Numerous other courts have interpreted the phrase “for which the called party is charged for the call” in this manner. See Osorio v. State Farm Bank, 746 F.3d 1242, 1257–58 (11th Cir .2014) (analyzing § 227(b)(1)(A)(iii) under the rule of last antecedent and other canons of statutory interpretation to hold that plaintiff was “not required to prove that he was charged individually for each” call); Manno v. Healthcare Revenue Recovery Grp., 289 F.R.D. 674, 683 (S.D.Fla.2013) (holding “the TCPA does not require the plaintiff to be ‘charged for’ the calls in order to have standing to sue”); Page, 917 F.Supp.2d at 1220 (applying the rule of last antecedent to find “charged for the call” only applied to “any service”); Gutierrez, 2011 WL 579238, at *5–6 (same); Buslepp v. Improv Miami, Inc., Civil Action No. 12–60171–CIV, 2012 WL 1560408, at *2 (S.D.Fla. May 4, 2012) (rejecting argument that plaintiff needed to prove he was charged for each call to his cell phone to recover under TCPA). . . . Accordingly, the Court holds that Moore need not prove that he was charged for each call or the cell phone to establish DISH’s liability for violating § 227(b)(1)(A)(iii).

The District Court concluded that the Plaintiff was the “called party”.

Considering the plain language of the TCPA, the terms of the statute do not limit standing to the “called party.” The TCPA simply states that “a person or entity” can bring such a claim. 47 U.S.C. § 227(b)(3). This provision therefore covers Moore as the undisputed subscriber of the 2882 number. Indeed, numerous courts that have considered the TCPA’s standing provision have concluded that it allows any person to sue, not just the “called party.” See Manno, 289 F.R.D. at 682 (“[T]he standing provision of the TCPA is quite broad in that any ‘person or entity’ injured by a violation of the statute may seek redress….”); Swope v. Credit Mgmt., LP, Civil Action No. 4:12CV832, 2013 WL 607830, at *3 (E.D.Mo. Feb. 19, 2013) (“By its plain language, the TCPA grants standing to any ‘person or entity.’ ”); Page, 917 F.Supp.2d at 1217 (rejecting argument that only “called party” has standing after finding “no limitation in the text of the statute to indicate that only a ‘called party’ may assert a TCPA claim”); Harris v. World Fin. Network Nat’l Bank, 867 F.Supp.2d 888, 894 (E.D.Mich.2012) (“[T]he TCPA … plainly grants standing to ‘any person or entity’….”); Kane v. Nat’l Action Fin. Servs., Inc., Civil Action No. 11–cv–11505, 2011 WL 6018403, at *7 (E.D.Mich. Nov. 7, 2011) (same); D.G. ex rel. Tang v. William W. Siegel & Assocs., Attorneys at Law, LLC, 791 F.Supp.2d 622, 624–25 (N.D.Ill.2011) (same and rejecting argument that consent exception to § 227(b)(1)(A)(iii) liability limited standing to “called party”). Courts have also recognized that a person’s status as the subscriber of the phone at issue grants him standing under this broad standing provision. See Fillichio v. M.R.S. Assocs., Inc., Civil Action No. 09–61629–CIV, 2010 WL 4261442, at *2 (S.D.Fla. Oct. 19, 2010) (granting summary judgment for cell phone account holder); Gutierrez, 2011 WL 579238, at *5 (finding “it is the [telephone] subscriber who has standing to sue for violations of the TCPA”). Accordingly, Moore has standing to sue under the TCPA because he is the subscriber of the cell phone at issue. The Court does not opine as to which, if any, other types of relationships to a cell phone give rise to standing under the TCPA.  Even if only the “called party” had standing under the TCPA, the plain terms of § 227(b)(1)(A)(iii) do not support DISH’s argument that the called party is limited to the intended recipient of its calls. No portion of § 227 states that only the intended recipient of a call can recover under it. Neither “intended recipient” nor a similar term appear anywhere in § 227. See Soppet v. Enhanced Recovery Co., 679 F.3d 637, 640 (7th Cir.2012) (“The phrase ‘intended recipient’ does not appear anywhere in § 227, so what justification could there be for equating ‘called party’ with ‘intended recipient of the call’?”). In fact, the one location where “recipient” appears in this provision indicates that any recipient (not just the intended recipient) can recover. “[R]ecipient” appears in the introductory language of § 227(b)(1)(A)(iii) as follows: “It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States.” 47 U.S.C. § 227(b)(1) (emphasis added). Congress did not qualify “recipient” in any way when describing how liability attaches under the TCPA, let alone add the additional requirement that the recipient be the intended recipient from the caller’s perspective. Further, the instances where “called party” appears in § 227(b)(1)(A)(iii) are not reasonably subject to the restrictive reading DISH urges. First, § 227(b)(1)(A) provides that a call made to a cell phone is exempt from liability when it is made “with the prior express consent of the called party.” This provision references the “called party” a second time by explaining that liability attaches for calls made to a number assigned to “a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” Id. § 227(b)(1)(A)(iii). Logically reading “called party” in these contexts, the individual called could be DISH’s customer, but it could also be an unintended recipient, like Moore. See Soppet, 679 F.3d at 639–40 (analyzing each instance of “called party” in the TCPA and finding no support for interpreting it as limited to the intended recipient). The TCPA therefore contains no language indicating that one must be the individual the caller intended to reach to sue under it. A vast majority of the courts that have addressed this issue have interpreted “called party” in this manner and allowed unintended recipients of calls, like Moore, to recover for violations of § 227(b)(1)(A)(iii). Osorio, 746 F.3d at 1250–52 (rejecting contention “that the ‘intended recipient’ is the ‘called party’ referred to in 47 U.S.C. § 227(b)(1)(A)”); id. at 643 (same and holding “ ‘called party’… means the person subscribing to the called number at the time the call is made”); Paradise v. Commonwealth Fin. Sys., Inc., Civil Action No. 3:13–CV–00001, 2014 WL 4717966, at *3 (M.D.Pa. Sept. 22, 2014) (holding “called party” does not mean the intended recipient); Fini v. DISH Network L.L.C., 955 F.Supp.2d 1288, 1296 (M.D. Fla 2013) (concluding “that possessing standing as a ‘called party’ … does not require the plaintiff to have been the intended recipient of the call”); Manno, 289 F.R.D. at 682; Page, 917 F.Supp.2d at 1219; Breslow v. Wells Fargo Bank, N.A., 857 F.Supp.2d 1316, 1322 (S.D.Fla.2012) (finding “called party” was the actual, not intended, recipient of calls). Accordingly, the Court joins those courts and rejects DISH’s argument that the “called party” referenced in the TCPA limits standing to only the intended recipient of its calls because it has no support in the statute’s plain terms.  Turning to DISH’s contention that Moore must be the cell phone’s regular user and carrier in addition to its subscriber to recover, no such requirement appears in the TCPA. As noted, Moore, as the undisputed subscriber of the 2882 number, fits into the TCPA’s broad standing provision. See 47 U.S.C. § 227(b)(3). While several district courts have found that a cell phone’s regular user and carrier can recover under the TCPA, that generally occurs in cases finding that a plaintiff had standing even though he or she was not the subscriber, something that is not an issue in this case. See Olney v. Progressive Cas. Ins. Co., ––– F.Supp.2d ––––, 2014 WL 294498, at *5 (S.D.Cal.2014) (holding “that the regular user of a cellular telephone has standing to bring a claim under the TCPA, regardless of whether he is responsible for paying the bill”); Fini, 955 F.Supp.2d at 1296 (holding plaintiff, who was not subscriber, had TCPA standing “because she is the regular user and carrier of the phone”); Agne v. Papa John’s Int’l, Inc., 286 F.R.D. 559, 565 (W.D.Wash.2012) (finding authorized user of shared cellular plan had standing under TCPA); Page, 917 F.Supp.2d at 1219 (holding plaintiff had TCPA standing even though number was registered in someone else’s name because he was the cell phone’s “regular user and carrier”). . . . .Thus, Fini stands only for the proposition that a regular user and carrier of a cell phone who is not the subscriber has standing under the TCPA. Accordingly, the Court rejects DISH’s argument that Moore must be the regular user and carrier of the 2882 number because his status as the subscriber of the cell phone alone confers standing upon him. ¶ In sum, Moore fits into the TCPA’s broad standing provision because he is the cell phone subscriber. He therefore has standing under the TCPA for all thirty-one calls.

The District Court found that all of the calls, not just some of them, were placed with an ATDS.

 DISH argues that it is not liable for calls 1, 4 through 7, 11 through 18, 20, and 21 because the Cisco Dialer is not an ATDS and these calls did not play a prerecorded message. Moore counters that the Cisco Dialer is a predictive dialer that, under FCC rules, is an ATDS. DISH responds that the Court should focus exclusively on the TCPA’s text rather than the FCC decisions and, even if those decisions apply, the Cisco Dialer is not a predictive dialer. ¶ DISH argues that the Court should disregard these FCC rulings on two grounds—that the text of the TCPA sufficiently defines an ATDS and the FCC’s orders only apply to cases involving telemarketing. The first argument is not persuasive because district courts must defer to FCC rulings. See 28 U.S.C. § 2342(1); 47 U.S.C. § 402(a); see also Davis v. Diversified Consultants, Inc., Civil Action No. 13–10875–FDS, 2014 WL 2944864, at *5 (D. Mass. June 27, 2014) (stating that the FCC’s ruling that a “predictive dialer” qualifies as an ATDS “is entitled to deference”); Sterk v. Path, Inc., ––– F.Supp.2d ––––, 2014 WL 2443785, at *4 (N. D.Ill.2014) (noting that “a district court gives great weight, if not controlling weight, to final decisions of the FCC implementing and interpreting the TCPA”); Penn v. NRA Grp., LLC, Civil Action No. JKB–13–0785, 2014 WL 2986787, at *3 (D.Md. July 1, 2014); Griffith, 838 F.Supp.2d at 726 (noting that the FCC’s final orders bind district courts). Moreover, several district courts have found that a predictive dialer is an ATDS based on these rulings. See Davis, 2014 WL 2944864, at *4–5; Sterk, 2014 WL 2443785, at *4; Griffith, 838 F.Supp.2d at 725–27. Further, the FCC’s ruling that a predictive dialer is an ATDS applies in cases involving debt collection calls, not just telemarketing calls. See Griffith, 838 F.Supp.2d at 727 (rejecting argument “that the TCPA only applies to telemarketing, not debt collection”). The FCC concluded that predictive dialers fall under the TCPA’s definition of an ATDS without limiting that ruling based on the purpose for which a call is made. See 2003 FCC Order, 18 F.C.C.R. at 14093. Indeed, as noted, the FCC recognized in its 2008 Declaratory Ruling that its predictive dialer rule applies to debt collection calls by explaining how debt collectors can use predictive dialers without violating the TCPA. See 2008 FCC Ruling, 23 F.C.C.R. at 567. Accordingly, a predictive dialer is an ATDS pursuant to the FCC’s 2003 Order and 2008 Ruling. ¶ DISH contends that this affidavit shows there is extensive human involvement in the processing and dialing of numbers that establishes it did not make the calls with a predictive dialer. ¶ In response to Montano’s affidavit, Moore points to portions of Montano’s deposition testimony that clarify how DISH’s dialing equipment functions. DISH’s dialing system has two parts—the Cisco hardware and the Campaign Manager software. Montano Dep. 28:9–11, Feb. 5, 2014. Consistent with his affidavit, Montano testified that humans import phone numbers into the Campaign Manager software. Id. at 24:17–25:8. The phone numbers “reside in the Campaign Manager” until the Campaign Manager sends them to the dialer. Id. 26:2–3, 27:8–10. The dialer then “calls each record contained in the list in the order that they are delivered to the hardware.” Id. at 30:22–24.  ¶ Here, it is apparent that DISH focuses on evidence of human involvement in the list-creation process to avoid the clear implication of the FCC’s decision as applied to this case—that the Cisco Dialer is a predictive dialer. In its 2003 Order, the FCC defined a predictive dialer as having the “ capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers ” when paired with software.2003 FCC Order, 18 F.C.C.R. at 14091 (emphasis added). The FCC did reference the lack of human involvement typical of a predictive dialer, but only to explain why it found a predictive dialer qualified as an ATDS. See id. at 14092. Thus, contrary to DISH’s argument, it is irrelevant under the FCC’s definition of a predictive dialer that humans are involved in the process of creating the lists that are entered into the Campaign Manager software. See Sterk, 2014 WL 2443785, at *4 (finding system was a predictive dialer despite fact that users of the defendant’s service made their contact information available to the defendant because users’ involvement was “essentially the same as when a call list is entered by a telemarketer in a database”). Because portions (c), (d), (e), and (f) of Montano’s affidavit all allege facts concerning that part of DISH’s call process, they carry no weight in the predictive dialer analysis. The same is true for the remainder of Montano’s affidavit-portions (a), (b), and (g). This evidence demonstrates that the Cisco Dialer lacks the capacity to randomly or sequentially generate telephone numbers. Per the 2003 FCC Order, the Cisco Dialer can be a predictive dialer without that capacity. See 2003 FCC Order, 18 F.C.C.R. at 14091; see also Davis, 2014 WL 2944864, at *5 (“And even if … [the defendant’s] system cannot dial randomly or sequentially, it is undisputed that [the system] is a ‘predictive dialer’ that dials from lists of numbers. The FCC rulings specifically account for the fact that technology has developed such that lists of numbers are more cost-effective than random or sequential numbers.”). Simply put, DISH’s equipment (the hardware dialer and software program) is a predictive dialer under the FCC’s orders if it makes calls from a stored list of phone numbers without human intervention. See Davis, 2014 WL 2944864, at *5 (finding system that dialed automatically from lists of numbers was predictive dialer under FCC rulings); Sterk, 2014 WL 2443785, at *4 (“The undisputed facts show that the equipment used by [the defendant], which makes calls from a stored list without human intervention is comparable to the predictive dialers that have been found by the FCC to constitute an ATDS…. It is the ultimate calling from the list by the automated equipment that is the violation of the TCPA”); Griffith, 838 F.Supp.2d at 727. That is exactly how the Cisco Dialer functioned per Montano’s undisputed deposition testimony and affidavit. Lists of numbers are stored in the Campaign Manager (or “reside” there), those lists of numbers are transferred from the Campaign Manager to the dialer hardware without human intervention, and the dialer hardware automatically dials numbers from those lists. Accordingly, based on the undisputed deposition testimony and affidavit of Montano, the Court holds that DISH used an ATDS to call the 2882 number because there is no genuine dispute of material fact that the Cisco Dialer is a predictive dialer under the FCC’s rulings. . . .  As a final matter here, the Court notes that DISH contends that this Court would be setting a new precedent by finding that the Cisco Dialer is a predictive dialer. This is inaccurate because several other district courts have held that similar equipment is a predictive dialer. See Davis, 2014 WL 2944864, at *5–6; Sterk, 2014 WL 2443785, at *4; Griffith, 838 F.Supp.2d at 727 (holding defendant’s equipment was an ATDS based on dialer’s ability to call numbers automatically from a list stored in a software file).

Finally, the District Court awarded treble damages for calls placed after the Defendant knew of the Plaintiff’s dispute.

Because DISH is liable for these calls, the Court now considers the damages that Moore is entitled to receive. When a plaintiff succeeds on a TCPA claim, he can recover the greater of actual damages or $500 for each violation of § 227(b)(1)(A)(iii). 47 U.S.C. § 227(b)(3). “If the court finds that the defendant willfully or knowingly violated” the TCPA, it may award treble damages. Id. “[T]he intent for treble damages does not require any malicious or wanton conduct, but rather is satisfied by merely ‘knowing’ conduct.” Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11 th Cir.2011). ¶ Moore seeks an award of $500 for each violation and treble damages for calls 25 through 31, which all occurred after DISH’s June 11, 2012 attempt to add the 2882 number to its do-not-call list. DISH does not oppose argument that he is entitled to treble damages or offer evidence contradicting the basis of Moore’s claim for treble damages. Thus, it is undisputed that DISH knew that it was calling Moore, not the DISH account holder, at the 2882 number when it made calls 25 through 31 because Moore had advised DISH of its error by that time, which is reflected in DISH’s own records. Accordingly, because DISH knew that it was calling the wrong person but persisted in calling the 2882 number regardless of that knowledge, the Court finds that DISH willfully and knowingly violated Moore’s rights under the TCPA when making calls 25 through 31. See Harris, 867 F.Supp.2d at 895–87 (awarding treble damages for calls made to plaintiff’s cell phone after plaintiff notified defendant that it was calling the wrong number). The Court therefore awards Moore treble damages for those violations.