King v. Time Warner Cable Inc.
894 F.3d 473
| 2d Cir. | 2018Background
- King (plaintiff) was called ~163 times on her cell phone by Time Warner’s automated billing system after her number was erroneously linked to another customer’s delinquent account; she revoked consent after ~10 calls.
- Time Warner’s IVR system automatically pulls billing records and dials associated numbers; it stores numbers and dials them but Time Warner says it cannot generate random or sequential numbers.
- King sued under the TCPA, alleging calls were made using an ATDS without consent; district court granted partial summary judgment for King for 153 calls after revocation and trebled damages for willfulness.
- The district court relied on the FCC’s 2015 Declaratory Ruling construing “capacity” to include potential functionality after software modification; that 2015 Order was later vacated by the D.C. Circuit in ACA International.
- The Second Circuit reviewed de novo, declined to defer to the vacated FCC Order, and construed “capacity” to mean a device’s current functions (though not necessarily those in use during the call), excluding devices that would need substantial modification to become autodialers.
- The Court vacated the district court’s judgment and remanded for factual development on whether Time Warner’s system had the requisite present capacity to function as an ATDS.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Time Warner’s system qualifies as an ATDS under 47 U.S.C. § 227(a)(1) | King: “capacity” includes potential functionality after software/hardware modification; Time Warner’s system meets that low bar | Time Warner: “capacity” means present ability at time of use; system lacks random/sequential number generation now | Court: “capacity” refers to current functions absent additional modifications; remanded to determine factual capacity |
| Whether district court properly relied on FCC 2015 Order | King: FCC Order validly interpreted “capacity” broadly | Time Warner: FCC Order’s broad reading is unreasonable; decision should be made from statutory text | Court: FCC 2015 Order invalidated by D.C. Circuit; no deference owed; district court erred to rely on it |
| Whether consent was withdrawn and which calls violate TCPA | King: she revoked consent on Oct. 3, so calls after that date are unauthorized | Time Warner: disputed some calls but did not contest withdrawal holding on appeal | Court: accepted district court’s finding that King revoked consent; remanded on ATDS issue affecting liability |
| Whether treble damages appropriate for willful or knowing violations | King: Time Warner knowingly violated TCPA, entitling treble damages | Time Warner: challenges willfulness finding implicit in liability dispute | Court: did not resolve willfulness; remanded for further proceedings after ATDS capacity determination |
Key Cases Cited
- ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (vacating FCC’s expansive 2015 Order and rejecting definition of “capacity” as encompassing potential functionalities after modification)
- Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51 (2d Cir. 2017) (standard of review for summary judgment)
- Marblegate Asset Mgmt., LLC v. Educ. Mgmt. Fin. Corp., 846 F.3d 1 (2d Cir. 2017) (statutory construction principles and contextual interpretation)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (interpreting ATDS definition to focus on a device’s capacity rather than actual use)
- GTE S., Inc. v. Morrison, 199 F.3d 733 (4th Cir. 1999) (allocation of exclusive Hobbs Act jurisdiction over FCC order challenges)
- In re Jiffy Lube Int’l, Inc., Text Spam Litig., 847 F. Supp. 2d 1253 (S.D. Cal. 2012) (discussing ATDS capacity versus actual use)