It is commonly said that a Plaintiff can recover between $500 and $1,500 per call under the TCPA.
For Defendant, that may be wishful thinking.
It has been a trend for some time that Courts allow a single call to constitute multiple violations of the statute. Typically a Court will only allow a single call to count once in violating a single particular section of the TCPA (usually 227(b) and 227(c)). But occasionally a court will go further and allow damages on individual Code of Federal Regulations (CFR) sections as well.
Well in Perrong v. Mla Int’l, Case No: 6:20-cv-1606-RBD-EJK, 2022 U.S. Dist. LEXIS 36759 (M.D. Fl. March 02, 2022) a court just did something I have never seen before. And it is a little scary.
So setting the stage, the Defendant in Perrong defaulted–i.e. didn’t show up in court–and that put the company (and the apparent owner of the company Jose Ayala) at the mercy of the court.
The Court determined that the defendants had, in fact, sent 26 prerecorded calls to Perrong without consent. The question is–how much was that going to cost?
By Perrong’s figuring, those 26 calls should cost about $195k. Here’s how he calculated that:
- First, all 26 calls were prerecorded calls without consent, so that’s $13k off the bat. But that should be trebled for willfulness (why not?) so that’s $39k.
- Second, all 26 calls were made using an Automatic Telephone Dialing SysteATDS (huh?), that’s another $39k.
- Third, all 26 calls violated the Do Not Call (DNC) rules since his number was on the DNC list. So that’s another $39k.
- Fourth, all 26 calls automatically violate the CFR because the Defendant did not have an internal DNC policy, so that’s another $39k.
- Fifth, all 26 calls automatically violate the CFR again because Defendant did not produce its internal DNC policy, so that’s another $39k.
Hmmmm. Quite a few problems here from my perspective. But let’s see what the Court did.
Amazingly, the Court agreed that all calls made using a prerecorded voice NECESSARILY were also made using an ATDS: “it would be illogical to call someone and play a prerecorded message other than randomly or sequentially.”
First time ever that I’ve seen a court determine that prerecorded calls automatically trigger a minimum of $1,000.00 in damages because they were also made using an ATDS. Scary stuff.
The Court also agreed that Perrong’s DNC claim was valid.
However, the Court found Perrong had not stated enough facts to demonstrate that the internal DNC provisions were violated. As such Perrong was denied a victory on those claims.
The Court also refused to credit Perrong’s willfulness claims and declined to treble damages.
So Perrong ended up with $500 x 26 x 3=$39k, which is probably the most he should have recovered to begin with.
It is important for Defendants to keep cases like this in mind. An errant prerecorded call might cost you more than $500.00. Perhaps, a lot more.