Moore v. Dish Network L.L.C.
57 F. Supp. 3d 639
N.D.W. Va.2014Background
- Chester Moore obtained a Cintex Lifeline cell phone with number ending 2882 on December 19, 2011; Lifeline requires not already receiving Lifeline service for eligibility.
- DISH called the 2882 number 31 times in Jan–Jul 2012 from numbers 8047 and 8290 about a past-due account; Moore was not a DISH customer.
- DISH used Cisco UCCE Outbound Option dialer; many calls included prerecorded messages, with some calls unanswered.
- Moore informed DISH that it was calling the wrong number and asked to stop; DISH added 2882 to its do-not-call list on June 11, 2012.
- DISH admits to the 31 calls; Moore filed TCPA claim alleging violations of § 227(b)(1)(A)(iii).
- Court grants partial summary judgment for Moore on liability for the 31 admitted calls and awards damages; DISH awarded summary judgment to extent of calls from 8290 or additional calls beyond the 31; action dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Moore’s Lifeline violation bars TCPA recovery | Moore—no TCPA bar; Lifeline issue does not exempt TCPA liability | DISH—public policy bars recovery for wrongfully obtained phone | No bar; Lifeline violation does not preclude TCPA liability |
| Whether Moore had standing to sue under TCPA | Moore as subscriber has standing under §227(b)(3) | Called party requirement; Moore not the called party | Moore has statutory and Article III standing as the subscriber |
| Whether the Cisco Dialer constitutes an ATDS | Cisco Dialer dials from stored lists; qualifies as ATDS | Cisco Dialer not ATDS; no predictive dialing | Cisco Dialer is an ATDS under FCC rulings; liable for 31 calls |
| Whether Moore must prove he was charged for each call | Not required; charged-for-call rule does not apply to cell phones | TCPA requires charging per call | Not required to prove charges for each call; Moore can recover for all 31 calls |
| Damages and final disposition of case | Award $500 per violation; treble damages for after wrong-number notice | Challenge liability and damages on additional calls | Liability for 31 calls; $500 per violation for 24 calls; treble damages for 7 calls; total $22,500; case dismissed with prejudice. |
Key Cases Cited
- Osorio v. State Farm Bank, F.Supp.3d, 746 F.3d 1242 (11th Cir.2014) (standing, charging issues under TCPA; called party capacity)
- Manno v. Healthcare Revenue Recovery Grp., 289 F.R.D. 674 (S.D. Fla.2013) (standing under TCPA; broad reading of 'person or entity')
- Page v. Regions Bank, 917 F.Supp.2d 1214 (N.D. Ala.2012) (standing under TCPA; 'charged for the call' interpretation)
- Soppet v. Enhanced Recovery Co., 679 F.3d 637 (7th Cir.2012) (called party; standing for unintended recipients)
- Fini v. Dish Network L.L.C., 955 F.Supp.2d 1288 (M.D. Fla.2013) (regular user/caller standing; broad subscriber concept)
- Prudential Insurance Co. of America v. Tull, 690 F.2d 848 (4th Cir.1982) (no one should profit from their own wrong; not directly applicable here)
- Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231 (Supreme. Ct.1959) (estoppel; no direct application; reasoning cited)