A plaintiff can recover statutory damages under both the automated-call and do-not-call list sections of the Telephone Consumer Protection Act, the 6th Circuit has ruled.
The plaintiff claimed that the defendant placed 33 unsolicited telemarketing calls to his home over a three-month period in an attempt to sell him a membership in the NASCAR membership club.
The first call was a prerecorded voice message and the next two calls were placed by a live agent. The plaintiff claimed that on the third call he asked the agent to place his name and phone number on the defendant’s do-not-call list, but subsequently received 30 additional calls.
On the defendant’s motion a federal court dismissed the case, finding that the plaintiff’s damages did not exceed $75,000 as required for a suit based on diversity of citizenship filed in federal court. But in reversing the dismissal, the 6th Circuit said that the plaintiff’s requested damages did exceed the jurisdictional threshold, because he could recover damages under both the automated-call and do-not-call list subsections of the TCPA. For the 31 calls the plaintiff could receive damages of $1,500 for each of the two subsections violated for a total of $93,000, the court said.
Because §227(b)(3), the automated-call subsection, and §227(c)(5), the do-not-call list subsection, “contain significant textual differences, indicating that they are distinct provisions to be treated independently,” the plaintiff could recover statutory damages under both subsections, the court said. The two subsections target different harms and each creates a private right of action.
“By enacting separate private-right-of-action provisions, each including a statutory damages provision, Congress evidenced its intent that a person be able to recover for the telemarketer’s failure to institute the minimum procedures for maintaining a do-not-call list as well as the additional harm of the call being automated,” the court said. “Recovery of damages for the two separate provisions does not upset Congress’s balance in setting damages ‘fair to both the consumers and the telemarketer.’”
The court further found the plaintiff could be entitled to an additional $18,200 in damages based on his Ohio consumer protection claims as well as damages for state law invasion of privacy claims.
To read the decision in Charvat v. NMP LLC, click here.
Why it matters: In addition to deciding that diversity jurisdiction existed in the case, the court also held that federal courts have federal-question jurisdiction over private TCPA claims such as those raised by the plaintiff. The issue has split the federal courts of appeal, with the 2nd, 3rd, 5th, 9th, and 11th Circuits concluding that the plain language of the TCPA creates a private right of action for individual plaintiffs in state – not federal – court. Noting that another panel of the 6th Circuit reached the opposite conclusion and found federal jurisdiction just a few months prior, the Charvat court said it was bound by that decision. The 6th and 7th Circuits now exist as the minority of federal circuits to recognize federal jurisdiction in such suits.