Time Warner Hit with $230k Autodialer Judgment

Print Friendly, PDF & Email

July 9, 2015

autodialerThe U.S. District Court for the Southern District of New York has awarded a Time Warner Cable Inc. (“TWC”) customer $229,500 in connection with 163 autodialed calls placed to her cell phone over a 13-month period. The calls were placed using an interactive voice response system (“IVR”) that was meant to call customers who were late paying bills.

TWC defended the calls on three separate grounds: (1) that the IVR calling system is not an automatic dialing system (“ATDS”) within the meaning of the Telephone Consumer Protection Act (“TCPA”); (2) that TWC believed it was calling a different individual who had given prior express consent to receipt of the calls; and (3) that Plaintiff consented to the calls pursuant to the customer agreement.

How did the court address TWC’s arguments?

First, the Court considered TWC’s argument that it’s IVR is not an ATDS, which TWC argued dialed numbers that were plucked from a list of customers that were behind on their bills, and not generated randomly. The Court dismissed the argument, reasoning that the entire process from customer selection and list compilation, to the ultimate dialing process, was fully automated.

Next, the Court rejected TWC’s argument that the TCPA only restricts use of an ATDS when the intended recipient of a call, as opposed to the actual recipient of the call, has not provided prior express consent. TWC argued that the Plaintiff’s cell phone number had been recycled from a previous subscriber who had provided express consent for the calls, and who was the intended recipient thereof. However, the Federal Communications Commission (“FCC”), in connection with the recent adoption of a package of rulings (of which we have previously written), has stated that if a number has been reassigned, then the company must stop calling the number after one call. The Court recognized this fact as confirmation that “called party” is the actual recipient of the call. The Court additionally reasoned that the TCPA’s language is clear in that “called party” means the actual recipient of the call, and has been historically interpreted as such.

Finally, while the Court held that TWC’s customer service agreement with the Plaintiff did provide the requisite express consent for calls using an autodialer, TWC was not relieved of liability because the Plaintiff had expressly revoked her consent and TWC nevertheless called her an additional 153 times thereafter. The Court relied on this fact, as well as the fact that TWC had called Plaintiff 70 times after the filing of the lawsuit to treble damages in this case, such that TWC was liable for $1,500 per call for willful and knowing TCPA violations.

Protect Your Business From Autodialer Related Liability

We have written extensively about increased regulatory interest in autodialers, as well as telemarketing calls placed to cell phones in general. This case provides further proof that the failure to ensure strict adherence to the restrictions involving use of an ATDS can have disastrous consequences for telemarketers. In addition, TWC’s apparent outright refusal to respect the consumer’s revocation of consent, placing an additional 153 calls subsequent to the revocation, subjected it to treble damages on a per call basis for its willful violations. This case reinforces the fact that it is imperative to have telemarketing practices and procedures examined by experienced counsel prior to embarking on any telemarketing campaign.

If you are interested in learning more about this topic, need to review your telemarketing practices and procedures or if you are facing an investigation from a state attorney general or other regulatory agency, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

Attorney Advertising

Similar blog posts:

Human Intervention Defeats TCPA ATDS Claim

Twitter Joins Battle Over Definition of an “Autodialer” Under TCPA

Court Rules AOL Not Liable Under the TCPA

David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

Schedule a Call
In The Know

Trending Topics

New York Sweepstakes Law blog- Klein Moynihan Turco

New York Sweepstakes Law: Are You Compliant?

Print Friendly, PDF & Email

In general, a lottery exists when entrants pay for the chance to win a prize. States alone reserve the right to administer lotteries. Businesses can eliminate one element of what would otherwise be an illegal lottery, in order to transform it into a legal promotional game. If the requirement to

TCPA surveys

An Ad or not an Ad: NY Weighs in on TCPA Surveys

Print Friendly, PDF & Email

Another day, another court decision that refines constitutes a Telephone Consumer Protection Act (“TCPA”) unsolicited fax advertisement. A Manhattan-based federal court recently issued a decision that removes faxed invitations to participate in a survey from the TCPA definition of advertisement. In drawing this distinction for TCPA surveys, the Court held

NY sports gambling law- Klein Moynihan Turco

Agreement Reached to Enact NY Sports Gambling Law

Print Friendly, PDF & Email

This week, Governor Andrew Cuomo and the New York State Legislature agreed to a budget deal that will bring mobile sports betting to the State through a unique NY sports gambling law.  Upon the Governor’s signature, NY sports gambling is primed to become the nation’s largest market. However, New York

UK and US Social Media Influencer Laws

UK and US Social Media Influencer Laws

Print Friendly, PDF & Email

In September of 2020, the United Kingdom’s (“UK”) Committee of Advertising Practice (“CAP”) reviewed the Instagram accounts of 122 UK-based social media influencers to determine whether content was being properly flagged as advertising in accordance with applicable social media influencer laws. This past March, the UK Advertising Standards Authority (“ASA”)

Running a Telemarketing Business?

Get a Free Compliance Review From an Experienced TCPA Lawyer.

Share on facebook
Share on google
Share on twitter
Share on linkedin