| Although the TCPA’s statutory damages provision permits recovery of $500 per violation, which can be trebled for violations shown to be “knowing and willful,” professional plaintiffs routinely request amounts that far exceed the maximum amount authorized by the statute, and some courts have given them what they asked for. They manage this by creatively interpreting what constitutes a “violation” subject to statutory damages under the TCPA, and convincing the court that their interpretation is correct.
In our minds, the call (or text) is the “violation” subject to statutory damages under section 227(b) or 227(c) of the TCPA, which is the prevailing interpretation of the courts as well. Naturally, professional plaintiffs take a far broader approach to what constitutes a “violation” subject to a statutory damages award, pointing to the various compliance obligations included in the statute and its enforcing regulations. Such “violations” might include a defendant’s failure to provide the plaintiff with a written copy of its internal DNC policy upon request as required by CFR §64.1200(d)(1) or the failure to immediately identify the caller and the purpose of the call, as required by CFR 64.1200(b)(1).
A recent case filed by professional plaintiff Andrew Perrong in the Middle District of Florida helps illustrate how this works. In Perrong v. MLA Int’l, the plaintiff alleged that MLA International at the direction of its purported owner, Jose Ayala, placed a total of 26 prerecorded calls to his DNC-registered number without his prior express written consent. Unfortunately, the defendants failed to respond to the Complaint, which resulted in Perrong filing a motion for a default judgment, in which he was required to explain how much the defendants owe him, and the legal basis for each element of damages.
In a sane world, the most a plaintiff could request would be $39,000.00 for 26 calls to a number on the DNC, based on the following calculation: 26 x $500 = $13,000 x 3 for treble damages = $39,000. Unfortunately the world in which Perrong resides is not a sane one. In his motion, Perrong requested the Court to award him a grand total of $202,800.00 for those 26 calls, an amount that does not require a mathematician to determine far exceeds the maximum of $1,500 per call authorized by the TCPA. Here’s how Perrong calculated how much he was owed:
$39,000 based on the fact that the calls were placed without his prior express written consent ($500 x 26 = $13,000 x 3 for willfulness).
+
Another $39,000 based on the calls being placed using an ATDS ($500 x 26 = $13,000 x 3 for willfulness).
+
Another $39,000 based on the calls being placed to a number on the National DNC ($500 x 26 = $13,000 x 3 for willfulness).
+
Yet another $39,000 based on the defendant’s failure to maintain an internal DNC policy in violation of CFR §64.1200(d)(1)($500 x 26 = $13,000 x 3 for willfulness).
+
And a further $39,000 based on the defendant’s failure to provide a copy of its internal DNC policy in violation of CFR §64.1200(d)(1)($500 x 26 = $13,000 x 3 for willfulness).
+
$7,800 based on the calls violating the Pennsylvania Telemarketer Registration Act ($300 x 26 = $7,800)
=
$202,800.00
In considering the motion, the Court agreed that the defendants used an ATDS, reasoning that any calls that feature a prerecorded voice must have been made using an automated telephone dialing system: “it would be illogical to call someone and play a prerecorded message other than randomly or sequentially.” Although that analysis doesn’t make the slightest bit of sense, the Court also agreed to treble the ATDS damages as requested by the plaintiff.
Fortunately for the defendants, the Court declined to buy into the plaintiff’s absurd and repetitive DNC and non-consensual claims, and (being a Florida court) declined to consider an award under the Pennsylvania statute.
So Perrong ended up with a $39,000 judgment, which is the maximum amount authorized by the statute for 26 calls. While that is not a small number, it is important to keep in mind that with a different judge or jurisdiction, things could have gone considerably worse for the defendants, and often do, particularly when a default judgment is being considered. |
