The U.S. District Court for the Middle District of Pennsylvania recently held that, under the federal Telephone Consumer Protection Act (TCPAA), "a plaintiff need not answer or hear a call to prove prohibited conduct under the TCPA, but need only prove the act of placing the call itself."
A copy of the opinion is available at: Link to Opinion
The consumer alleged that the issue of statutory damages was resolved by the Court during the summary judgment phase when the Court held that "[u]ncontroverted record evidence establishes that Mercury Dialer placed 146 calls to [the consumer]."
The defendant argued that the Court's ruling during the summary judgment phase did not resolve the issue of statutory damages because the consumer must further demonstrate that he either answered his phone or heard it ring for each of the subject calls.
While the Third Circuit had not addressed the issue at hand, the Ninth Circuit has found that a "call" within the TCPA means "to communicate with or try to get into communication with a person by telephone." Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).
The Court relied on the Ninth Circuit's holding and other district courts' decisions in finding that "a plaintiff need not answer or hear a call to prove prohibited conduct under the TCPA, but need only prove the act of placing the call itself." See, e.g., King v. Time Warner Cable, 113 F. Supp. 3d 718, 725 (S.D.N.Y. 2015); Fillichio v. M.R.S. Assocs., Inc., No. 09-61629, 2010 WL 4261442, at *3 (S.D. Fla. Oct. 19, 2010); see also Forrest v. Genpact Servs., LLC, 962 F. Supp. 2d 734, 737 (M.D. Pa. 2013),
The Court clarified for the parties that the sole issue at trial was whether the consumer should be awarded treble damages.
Ralph T. Wutscher
Maurice Wutscher LLP
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