Author Topic: Possible tcpa case?  (Read 790 times)

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Jackson0515

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Re: Possible tcpa case?
« Reply #30 on: August 04, 2017 11:19:32 PM »
Section (c) of the TCPA states:

(c) Protection of subscriber privacy rights
(1) Rulemaking proceeding required Within 120 days after December 20, 1991, the Commission shall initiate a rulemaking proceeding concerning the need to protect residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object.

In other words, section (c) requires the FCC to establish regulations. These regulations are contained in 47 CFR 64.1200; The penalty for violating these regulations is spelled out in 47 USC 227(c)(5)(B).

47 CFR 64.1200 begins by restating the autodialer restriction:

(a) No person or entity may:

(1) Except as provided in paragraph (a)(2) of this section, initiate any telephone call (other than a call made for emergency purposes or is made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice; (iii) To any telephone 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.

So, a single use of an autodialier without prior express consent violates the TCPA twice.

Charvat v NMP LLC is an example of a plaintiff who successfully sued under both sections (b)(3) and (c)(5); http://law.justia.com/cases/federal/appellate-courts/ca6/10-3390/11a0248p-06-2011-08-30.html

Charvat v NMP LLC
Do you have the final decision of that case? The link your provided looks to be a decision on motions to dismiss some or part of the case by the defense.  And from what I read, the judge decided to not comment or make ANY decision on whether or not the plaintiff could sue on both (B) and (C) of the TCPA.

« Last Edit: August 04, 2017 11:53:31 PM by Jackson0515 »

aaabbb

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Re: Possible tcpa case?
« Reply #31 on: August 05, 2017 12:14:27 AM »
Charvat v NMP LLC
Do you have the final decision of that case? The link your provided looks to be a decision on motions to dismiss some or part of the case by the defense.  And from what I read, the judge decided to not comment or make ANY decision on whether or not the plaintiff could sue on both (B) and (C) of the TCPA.
Sorry. I didn't actually read the link I sent you  1214

Here's a better one: https://scholar.google.com/scholar_case?case=17898928251720630968&q=charvat+v.+nmp+llc&hl=en&as_sdt=806&as_vis=1

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The more difficult question is whether Charvat may recover statutory damages under both the automated-call subsection of the TCPA, 47 U.S.C. 227(b), and the do-not-call-list subsection, 47 U.S.C. 227(c) (as implemented in 47 C.F.R. 64.1200(d)). We look first to the statutory language. The fact that the statute includes separate provisions for statutory damages in subsections (b) and (c) suggests that a plaintiff could recover under both. See Reichenbach v. Chung Holdings, LLC, 159 Ohio App.3d 79, 823 N.E.2d 29, 32-34 (2004).[9] Subsection (b) permits "an action based on a violation of this subsection or the regulations prescribed under this subsection," 227(b)(3)(A) (emphases added),[10] and subsection (c) permits an action based on a "telephone call ... in 449*449 violation of the regulations prescribed under this subsection," 227(c)(5) (emphasis added). Additionally, the two private-right-of-action provisions contain significant textual differences, indicating that they are distinct provisions to be treated independently. Subsection (c), 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." 47 U.S.C. 227(c)(5). 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 [subsection (c)]." Id. These provisions do not appear in the automated-call subsection, 227(b)(3).

The two subsections, moreover, target different harms: Subsection (b) imposes greater restrictions on automated telephone calls and transmissions, which Congress found to be "more of a nuisance and a greater invasion of privacy than calls placed by `live' persons." S.Rep. No. 102-178, at 4-5, reprinted in 1991 U.S.C.C.A.N. 1968, 1972. Subsection (c) and its accompanying regulations in 47 C.F.R. 64.1200(d) impose minimum procedures for maintaining a do-not-call list that apply to all calls live or automated initiated for telemarketing purposes to residential telephone subscribers. By enacting separate private-right-of-action provisions, each including a statutory damages provision, Congress evidenced its intent that a person be able to recover for the telemarketer's failure to institute the minimum procedures for maintaining a do-not-call list as well as the additional harm of the call being automated.[11] Recovery of damages for the two separate provisions does not upset Congress's balance in setting damages "`fair to both the consumer and the telemarketer.'" See GVN Mich., 561 F.3d at 632 n. 8 (quoting 137 Cong. Rec. S16,204, S16,205 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings)).

We therefore conclude that a person may recover statutory damages of $1500 for a willful or knowing violation of the automated-call requirements, 227(b)(3), and $1500 for a willful or knowing violation of the do-not-call-list requirements, 227(c)(5) even if both violations occurred in the same telephone call. Charvat alleges that Defendants willfully or knowingly violated subsection (b)'s automated-call requirements and subsection (c)'s do-not-call-list requirements in thirty-one of the telephone calls. Thus, Charvat's maximum damages for the thirty-one telephone calls that he alleges violated both sets of requirements total $93,000.

Finally, we note that Charvat alleges that he is entitled to statutory damages for the violations of the do-not-call-list regulations, 47 C.F.R. 64.1200(d), pursuant to subsection (b)'s damages provision, 47 U.S.C. 227(b)(3). R.20 (2d Am. Compl. 52, 55, 67, 70). An action based on a telephone call that violates the do-not-call-list regulations, however, is provided for in subsection (c) of 227. Technical and procedural standards specific to automated calls are included in 227(d) and accompanying regulation 47 C.F.R. 64.1200(b), which do not provide a private right of action or a statutory-damages provision. 450*450 Charvat should have alleged damages for the do-not-call violations pursuant to 227(c)(5) instead of (b)(3); on remand, the district court shall permit Charvat to amend his complaint for this technical, non-prejudicial pleading error. See Fed. R.Civ.P. 15(a)(2).

Bruno the JDB Killer

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Re: Possible tcpa case?
« Reply #32 on: August 05, 2017 12:54:29 PM »
You never said where you are located. Charvat was in Ohio, 6th Circuit. The decision won't be binding unless you live there. Charvat filed so many TCPA suits they almost gave him an office in the court house. He won some, lost some.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Jackson0515

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Re: Possible tcpa case?
« Reply #33 on: August 05, 2017 02:22:57 PM »
You never said where you are located. Charvat was in Ohio, 6th Circuit. The decision won't be binding unless you live there. Charvat filed so many TCPA suits they almost gave him an office in the court house. He won some, lost some.

I'm in lllinois. It's sill valuable case law even though in Ohio.

Bruno the JDB Killer

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Re: Possible tcpa case?
« Reply #34 on: August 05, 2017 03:00:50 PM »
It's not binding in the 7th where you are. You should check to see if there are similar decisions in your circuit. Also, unless you hit the 75K mark, you'll be in state court.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

kevinmanheim

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Re: Possible tcpa case?
« Reply #35 on: August 05, 2017 07:16:47 PM »
TCPA provides federal jurisdiction. No $75,000 requirement needed.

Plenty of 1-2 call TCPA cases in federal court. Not that I would bring one.

Bruno the JDB Killer

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Re: Possible tcpa case?
« Reply #36 on: August 05, 2017 10:32:13 PM »
I read a case that said there would be no federal unless the amount was 75K. It was from his circuit. I'll see if I can find it. Something to do with the language of the TCPA which specified a remedy was state.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

aaabbb

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Re: Possible tcpa case?
« Reply #37 on: August 06, 2017 03:30:58 AM »
It's not binding in the 7th where you are. You should check to see if there are similar decisions in your circuit. Also, unless you hit the 75K mark, you'll be in state court.
It'll be binding in the 7th circuit once he pleads his case and wins (assuming his evidence is really as strong as he says it is). The plain text of the TCPA doesn't give a judge any wiggle room here. There are two separate and distinct private rights of action. Unless you are a lawyer filing a class action, there is no reason not to plead this way.

Quote
I read a case that said there would be no federal unless the amount was 75K. It was from his circuit. I'll see if I can find it. Something to do with the language of the TCPA which specified a remedy was state.
The Supreme Court decided this a few years ago. TCPA cases can be filed in federal court because it is a federal law.

https://www.pillsburylaw.com/images/content/3/9/v2/3916/CommunicationsLitigationAdvisoryMimsClassActionLawsuitsUndertheT.pdf