In Barton v. JMS Assoc. Mktg., LLC, No. 21-35836, 2023 U.S. App. LEXIS 3593, at *3-4 (9th Cir. Feb. 15, 2023), the Court of Appeals for the 9th Circuit remanded a matter to allow exposure for unanswered as well as answered calls.
47 U.S.C. § 227(c)(5) provides a private right of action to any person who receives more than one telephone call that violates regulations promulgated under the TCPA from the same entity within a twelve-month period. 47 C.F.R. § 64.1200(c)(2) provides that “[n]o person or entity shall initiate any telephone solicitation to: . . . [a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry.” The regulation prohibits the initiation of a call to a telephone number that has been placed on the FTC do-not-call registry. 47 C.F.R. § 64.1200(c)(2). Whether the call was answered is irrelevant under the regulation. The district court therefore erred in declining to award damages for the two calls Barton failed to answer. We remand for the district court to calculate in the first instance the appropriate damages for those two unanswered calls.