378 F. Supp. 3d 356
E.D. Pa.2019Background
- Plaintiff James Shelton (cellular number registered on National Do Not Call Registry since June 2015) received 22 telemarketing calls from Fast Advance between March–April 2018; five calls occurred after he asked Fast Advance to stop calling and requested its do-not-call policy.
- Fast Advance did not participate in discovery, failed to respond to Plaintiff’s Requests for Admission, and admitted (via Rule 36 deeming) it does not scrub against the National Do Not Call Registry, does not maintain an internal do-not-call list or policies, and did not honor Plaintiff’s do-not-call requests.
- Plaintiff sued under 47 U.S.C. § 227(c) and implementing regulations (47 C.F.R. § 64.1200) for calls to a number on the Do Not Call Registry, failure to have a written do-not-call policy, and failure to record/honor a do-not-call request.
- Court granted Plaintiff’s motion in limine deeming Requests for Admission admitted (Rule 36), resolved standing as a matter of law (Plaintiff’s phone is a personal/residential number), and proceeded as bench trial on whether violations were knowing/willful.
- Court found Fast Advance violated § 227(c) and 47 C.F.R. § 64.1200(c) and (d) and that the violations were willful and knowing; awarded statutory damages trebled to $1,500 per call for 22 calls, totaling $33,000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Defendant violated § 227(c) / 47 C.F.R. § 64.1200(c) by calling a number on the National Do Not Call Registry | Shelton: Calls to his registered personal number were telemarketing solicitations in violation of the statute/regulation | Fast Advance: (generally disputed but failed to respond; argued timeliness of RFAs and tried to argue phone used for business) | Court: Calls violated § 227(c) / § 64.1200(c); RFAs deemed admitted established phone was personal and registered — liability found |
| Whether Defendant violated § 64.1200(d)(1) by lacking a written do-not-call policy available upon demand | Shelton: Fast Advance had no written policy and failed to produce one when requested | Fast Advance: no effective defense in record; admitted lack of policies | Court: Violation of § 64.1200(d)(1); willful/knowing breach found |
| Whether Defendant violated § 64.1200(d)(3) by failing to record and honor Plaintiff’s do-not-call request | Shelton: Sent request (email) and repeated requests; calls continued thereafter | Fast Advance: did not raise timely factual challenge; admitted not recording/honoring requests | Court: Violation of § 64.1200(d)(3); willful/knowing breach found |
| Proper measure of statutory damages when multiple regulations are violated in the same call | Shelton: Sought damages for each regulation per call | Fast Advance: argued various defenses including standing/business-use (waived) | Court: Damages assessed per violating call, not per violation; trebled to $1,500 per call under § 227(c)(5)(C); total $33,000 for 22 calls |
Key Cases Cited
- Airco Indus. Gases, Inc. Div. of the BOC Grp., Inc. v. Teamsters Health & Welfare Pension Fund of Philadelphia & Vicinity, 850 F.2d 1028 (3d Cir.) (Rule 36 and purpose of requests for admission explained)
- Langer v. Monarch Life Ins. Co., 966 F.2d 786 (3d Cir.) (requests for admission narrow issues and reduce trial time)
- Charvat v. GVN Michigan, Inc., 561 F.3d 623 (6th Cir.) (section 227(c)(5) allows statutory damages on a per-call basis)
- Lary v. Trinity Physician Fin. & Ins. Servs., 780 F.3d 1101 (11th Cir.) (contrast of recoveries under different TCPA provisions)
- Stoops v. Wells Fargo Bank, N.A., 197 F. Supp. 3d 782 (W.D. Pa.) (discusses standing/zone-of-interests concerns in TCPA suits)
- Hamdan v. Rumsfeld, 548 U.S. 557 (U.S.) (negative inference from statutory language used for interpretive point)