A district court in Michigan has determined that plaintiffs should be held to a heightened pleading standard for willful violations for the TCPA.Duchene v. OnStar, LLC, Case No. 15-13337, 2016 U.S. Dist. LEXIS 97129 (E.D. Mich. Jul. 26, 2016).In Duchene, plaintiff alleged that he received a number of calls from defendant on his cell phone without his prior express consent.The plaintiff asserted two claims against the plaintiff under the TCPA: a claim for statutory violation (carrying a $500/violation statutory penalty) and a claim for willful violations (carrying a $1,500/violation statutory penalty). The defendant moved to dismiss the complaint.

Under the TCPA, a plaintiff is entitled to treble damages where the defendant willfully or knowingly violates the Act.47 U.S.C. § 227(b)(3).The TCPA does not define the terms “willful” or “knowingly” and a split in authority has developed as to what constitutes a willful or knowing violation.While some courts have required a heightened standard (requiring plaintiff show that the defendant knew or should have known its actions violated the TCPA), others have required that plaintiff simply allege the defendant made the illegal contact with the plaintiff voluntarily.

On its motion to dismiss the willful violation claim, the defendant contended that “intent under the TCPA does not required any malicious or wanton conduct but it does require that the Plaintiff plead and prove knowing conduct.”Duchene at *15.Defendant went on to argue that the complaint did not include any facts to show that Defendant knew its calls violated the TCPA, including any allegations that plaintiff alerted the defendant at any time that he was not the intended target of the calls or that he did not consent to the calls.The Court agreed, holding that a “willful or knowing violation of TCPA requires that Plaintiff has to plead that Defendant was made aware or/notified that Plaintiff did not consent to calls from Defendant.” Id. at *19.

The case may provide an important foot hold for TCPA defendants in cases where the plaintiff simply lets the phone ring and ring in an effort to amass as many violations as possible.While it does not provide a shield to statutory TCPA violations (the motion to dismiss was denied as to that claim), it may provide a defense to willful claims where the plaintiff makes no effort to address the unwanted calls.