Warnick v. Dish Network, LLC
1:12-cv-01952
| D. Colo. | Sep 30, 2014Background
- DISH Network L.L.C. moved for summary judgment on WARNICK’s TCPA claim and the treble-damages claim.
- WARNICK alleges DISH made automated calls to his cellular number without consent, violating 47 U.S.C. § 227(b)(1)(A)(iii).
- DISH contends calls were to a business number, the dialer is not an ATDS, and the TCPA should not apply to informational account-calls.
- DISH asserts WARNICK’s number was not the intended recipient and WARNICK suffered no injury or charge from the calls.
- DISH presents evidence that its customers provide numbers and consent to be called; some disputes concern whether the calls went to WARNICK’s voicemail.
- The court must assess whether the TCPA applies to cellular calls to business numbers, whether the system qualifies as an ATDS, and whether WARNICK’s claims support treble damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the TCPA apply to cellular numbers used for business purposes? | WARNICK’s number was a cellular line and subject to § 227(b)(1)(A)(iii). | DISH contends the TCPA limits do not apply to business-cellular calls. | TCPA applies to cellular calls regardless of business use. |
| Is DISH’s dialing system an ATDS? | Dialer can store numbers, has sequential capabilities, and can place calls without live intervention. | Dialer requires human input; it does not generate numbers randomly or sequentially. | Genuine issues of material fact about ATDS status; summary judgment denied. |
| Are informational or account-related calls exempt from TCPA liability? | Informational/survey calls are covered and can violate TCPA. | Informational calls are exempt or distinguished from telemarketing; no injury shown. | TCPA applies to informational calls; no fatal injury finding. |
| Can DISH be liable for calls WARNICK did not receive or where WARNICK was not the intended recipient? | TCPA makes making a call actionable regardless of receipt; WARNICK may be intended recipient. | Liability should be limited to the actual intended recipient. | Liability extends even if WARNICK was not the intended recipient; summary judgment denied on this point. |
| Whether WILLFUL/KNOWING treble-damages claim is available | DISH knowingly violated TCPA by using autodialer. | Willful/knowing requires actual consent awareness; no notice of lack of consent. | Treble damages denied; court grants summary judgment for DISH on willful/knowing claim. |
Key Cases Cited
- Rodriguez v. United States, 480 U.S. 525 (1987) (statutory interpretation aids under explicit language use)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (ATDS coverage; capacity to store/dial without human intervention and use of lists)
- Celaya Martinez v. Holder, 493 F. App’x 934 (10th Cir. 2012) (TCPA applicability to cellular calls; willingness of courts to interpret broad statutory scope)