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07.08.15 by Andrew Shafer

TCPA Treble Damages Trap

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On July 7, 2015, the United States District Court for the Southern District of New York issued a decision in King v. Time Warner, 1:14-cv-02018-AKH, which merely adds to the telecommunications industry’s TCPA heartburn.  You can hyperlink to the decision here:

TW was looking for a customer named Perez who was not related to King. Coincidentally, King was also a TW customer who had given her written consent to auto-dialed and prerecorded calls.  After a dozen or so attempts to call Perez, TW finally spoke with King who instructed TW to stop calling her cell phone. TW did not. It called her an additional 153 times; including a number of calls after King had filed the lawsuit.

The court upheld TW’s consent language.  The language is instructive and helpful to the credit and collection industry, if agencies can get their originating creditor clients to incorporate it, because the court granted summary judgment to TW on the calls made before King revoked her consent.

However, as to all of the other calls, the court concluded that calling after being told to stop is evidence of intent to harass. As such, the court awarded the full measure of the TCPA’s remedies provision ($1500 per call for each of the 153 calls placed after King withdrew her consent).

Silver lining? Well, at least the TCPA has no attorney’s fees provision.

A caution to calls placed to Washington consumers…

The Washington Collection Agency Act, RCW 19.16.250(17)(a) prohibits calling a cell phone more than three times in a week, unless returning a call initiated by the party called. It does not matter if the call is manually or mechanically dialed.  Incidentally, calling a residence or cell phone more than 3 times in a week also creates a presumption of intent to harass under RCW 19.16.250(13)(a).

The WCAA does not create a remedy in itself. Instead, RCW 19.16.440 makes a violation of the licensing requirement (RCW 19.16.110) or the unfair practices section, RCW 19.16.250, a per se unfair or deceptive act or practice under Washington’s Consumer Protection Act (Title 19.86 RCW). 

However, the plaintiff still has the burden of satisfying the other four elements of a CPA claim: (a) the action occurred in commerce; (b) affecting interest in business or property; (c) causing (d) injury (emotional distress claims are not “injuries” under the CPA) proximately caused by the unfair or deceptive act or practice.

Conclusion: Where a TCPA claim lies, there is also likely a claim under RCW 19.16.250(17(a) and hence, the potential for a CPA claim if injury can be proven to have been caused by the calling.  The CPA provides the remedy of actual damages, which can be trebled up to $25,000, costs and reasonable attorney’s fees.