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In its infinite wisdom, when drafting the TCPA Congress included two separate and distinct grounds upon which to base a private cause of action.

§227(b) Claims

First, there’s 47 USC §227(b)(1)(A), which makes it unlawful “for any person within the United States, … to make any call… using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service” or (under §227(b)(1)(B), “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice… without the prior express consent of the called party…”

§227(c) Claims

Then, there’s 47 USC §227(c), which codified the creation of the national DNC registry, and prohibits telephone solicitations to any number listed on the registry absent consent or other exemption. Subsection (c) includes a private right of action under §227(c)(5), which states that any “person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State, bring, in an appropriate court of that State…an action to recover actual monetary loss or to receive statutory damages of up to $500 for each violation.”

Both §227 subsections (b) and (c) state that a “person or entity may bring, in an appropriate court of that State…an action to recover actual monetary loss or to receive statutory damages of up to $500 for each violation,” and give courts the discretion to treble damages for willful or knowing violations §227(b) or (c).

So when bringing a TCPA claim under §227(b), the “violation” upon which the claim is based refers to calling a cellular line using an ATDS, or placing a prerecorded call to a residential line without the recipient’s prior express written consent. With a §227(c) claim, the “violation” consists of calling a number listed on the national DNC registry more than once in a calendar year without the recipient’s prior express written consent.

Despite the fact that “violations” upon which to base a TCPA suit are limited to the grounds stated above, TCPA plaintiffs frequently claim that other elements of the statute and its accompanying regulations also constitute “violations” that justify litigation. Once such violation is the failure to produce a written internal DNC policy upon demand, as required by FCC regulation 47 C.F.R. 64.1200(d).

Many plaintiffs demand a written copy of a company’s internal DNC policy and sometimes file suit based on a failure to comply. Because they are unsupported by statute, courts often dismiss these “No DNC Policy” claims, but not always.

A company’s failure to produce a written DNC policy upon request recently resulted in a Massachusetts Court awarding damages based on that “violation.” In Perrong v. All Star Chimney Solutions, Inc., professional TCPA plaintiff Andrew Perrong filed a lawsuit that involved four automated calls placed to a number listed on the national DNC registry in violation of 47 U.S.C.§227(c), and also claimed that the defendant “did not have a written policy, available on demand, pertaining to do-not-call requests”

Perrong obtained a default judgment the Court awarded $500 for each call but did not grant Perrong’s request for an additional $500 for each call based on the defendant’s lack of a written do-not-call-policy. Instead, the court determined that “the failure to maintain a written policy, available on demand, pertaining to do-not-call requests” designated only “one violation”, and awarded Perrong $500 rather than the $2,000 he requested.

Naturally, the Court should not have awarded anything for the “No DNC Policy” violation, but you can never count on a Court doing the right thing, especially when the presentation of a simple one-page document can prevent that outcome altogether.

The defendant’s failure to present a policy “on demand” only cost them $500 in this case, but it could have been far worse. Perrong’s lawsuit was not brought as a class action, and there is nothing preventing another court from mistakenly including a “No DNC Policy” award as an element of class action damages, which would increase potential liability by orders of magnitude.

The lesson is simple. Have a written DNC policy on hand and produce a copy whenever someone requests it. It’s not a very high burden to meet and doing so can save you a considerable amount of headache. Sample DNC policies are available for download on the Blacklist Academy platform.

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