In First Nat. Collection Bureau, Inc. v. Walker, — S.W.3d —-, 2011 WL 2716778 (Tex. App. 2011), the Texas Court of Appeal affirmed a $147,000 jury verdict against a debt collector based on willful violations of the TCPA. The facts were as follows:
Walker filed this lawsuit on June 30, 2008. In her live pleading, Walker contended FNCB made calls to her cell phone using an “automatic telephone dialing system and/or an artificial or prerecorded voice” in violation of the TCPA. According to Walker, such violations entitled her to statutory dam-ages of $500 per call pursuant to the TCPA and section 35.47(f), which provided for a cause of action by “[a] person who receives a communication that violates [the TCPA].” Further, Walker asserted that because FNCB had committed such violations “knowingly,” she was entitled to increased damages of up to $1,500 per violation pursuant to those statutes. FNCB filed a general denial answer.
The Court of Appeal found that, based on admissions in testimony at trial, the debt collector used an ADAD within the meaning of the TCPA. The Court of Appeal rejected the contention that the TCPA $500-per-call penalty was based on calls ‘received’.
Finally, we address FNCB’s contention that this Court and others have limited TCPA violations to communications “received.” In support of that contention, FNCB cites Intercontinental Hotels Corp. v. Girards, 217 S.W.3d 736 (Tex.App.-Dallas 2007, no pet.); Chair King; and American Blastfax.. . . FNCB does not assert, and the record does not show, that the calls at issue were not “made” to Walker. See 47 U.S.C.A. § 227(b)(1)(A)(iii). Accordingly, we decide against FNCB on subpart (b) of its first issue.