Thursday, July 12, 2018

Court overturns unsolicited phone call ruling

What do you do when unsolicited phone calls come into your life? Do you hang up without saying anything? Do you engage the caller to mess with his head? Do you make animal noises? Or do you bring a lawsuit?

The case is King v. Time Warner Cable, decided on June 29. The Telephone Consumer Protection Act
of 1991 makes it illegal to use an automatic telephone dialing system to call your phone without consent. Plaintiff says this happened to his cell phone 153 times. The district court ruled in plaintiff's favor, on authority of an FCC ruling from 2015 that the D.C. Circuit has since invalidated. The Second Circuit (Winter, Cabranes and Lynch) takes this victory away from plaintiff.

Violations of the TCPA can be costly from the phone-violator. There is a minimum fine of $500 per violation, which can be trebled at the court's discretion if the defendant willfully or knowingly violated the statute. "In 2015, the FCC issued a Declaratory Ruling and Order that, among other things, attempted to clarify the TCPA’s requirement that, to qualify as an autodialer under the statute, a device must have the 'capacity' to dial random and sequential numbers." In addition, "the
agency construed a device’s ‘capacity’ to encompass its ‘potential functionalities’ with modifications such as software changes." The trial court in this case awarded plaintiff nearly $230,000 in damages.

Time-Warner wins the appeal because the district court based plaintiff's victory on the 2015 FCC ruling. But the D.C. Circuit took that FCC order and folded it into a paper airplane, tossing it out the window and onto the streets of the District of Columbia. This requires the Second Circuit to determine if that FCC ruling was a reasonable interpretation of the statute. I really don't want to put you to sleep, so here the short answer: the FCC's interpretation is not reasonable. Here is the summary:

In sum, we conclude that the term “capacity” in the TCPA’s definition of a qualifying autodialer should be interpreted to refer to a device’s current functions, absent any modifications to the device’s hardware or software. That definition does not include every smartphone or computer that might be turned into an autodialer if properly reprogrammed, but does include devices whose autodialing features can be activated, as the D.C. Circuit suggested, by the equivalent of “the simple flipping of a switch.” Within those bounds, however, courts may need to investigate, on a case-by-case basis,
how much is needed to activate a device’s autodialing potential in order to determine whether it violates the TCPA.

Since the favorable district court ruling stemmed from an incorrect interpretation of the statute, and it was premised on an FCC regulation that has been struck down, the district court has to determine if there is any other way for plaintiff to win this case. For now, the plaintiff's damages award is set aside.

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