The U.S. District Court for the Eastern District of North Carolina recently adopted a magistrate judge’s recommendation that summary judgment be entered in favor of a defendant because it had a good faith belief that it had consent to call the plaintiff’s number.
In Danehy v. Time Warner Cable Enterprises, Case No. 14-cv-133 (E.D.N.C.), a pro se plaintiff (“Plaintiff”) alleged that Time Warner violated the TCPA by using an automated telephone dialing system (“ATDS”) to call his cellular phone that was registered on the national do-not-call registry. The phone number at issue had previously belonged to a Time Warner customer who had provided the phone number as a secondary contact for Time Warner to use when he could not be reached at his primary phone number. Time Warner had made calls to, and received calls from, the customer using the number numerous times in the past. The number was eventually assigned to Plaintiff in August or September 2013.
On November 25, 2013, the customer requested service at his home, but had not updated his contact information. Time Warner, through a third-party contractor, called the number at issue six times from November 25 through November 26, 2013, attempting to contact the customer about his request for service at his home. Time Warner was unaware that the number no longer belonged to its customer. Plaintiff, who erroneously received the calls, brought TCPA claims under 47 U.S.C. § 227(b) (ATDS claim) and 47 U.S.C. § 227(c) and 47 CFR § 64.1200(c)(2) (do-not-call registry claim).
The magistrate judge held that (1) by providing the number to Time Warner, the Time Warner customer consented to receive calls and texts at the phone number, and (2) Time Warner’s good faith reliance on the fact that it had consent to call the number was a complete bar to Plaintiff’s claims. More specifically, in opposing summary judgment, Plaintiff argued that the requisite express consent under the statute requires Plaintiff’s consent (the called party) and not the customer’s consent (the intended recipient of the call). The magistrate judge discounted this argument, holding that even if the plaintiff were correct about prior express consent, “defendant’s good faith belief that it had consent for the calls precludes liability on [the] plaintiff’s ATDS claim under 227(b)” because “imposition of liability . . . [would be] unjust.” The magistrate judge also dismissed the do-not-call registry claim on the same grounds, noting that “the same equitable considerations that underlay permitting [Time Warner] to rely on [its customer’s] consent with respect to plaintiff’s ATDS claim apply to his do-not-call registry claim.”
The district court accepted the magistrate’s recommendation. Although it noted that the Fourth Circuit has not yet determined whether a defendant may rely on the good faith defense under these circumstances, it reviewed the case law available and found no clear error in the magistrate judge’s determinations and dismissed the claims accordingly.
This case provides a glimmer of hope for defendants that are faced with increasingly draconian, and in some cases unworkable, interpretations of TCPA requirements. All in all, although the Danehy court acknowledged that prior express consent may be required from the called party, not the intended party, it nonetheless dismissed the case on equitable grounds based on the good faith defense. We will have to wait and see if the Fourth Circuit adopts this defense. As of the date of this post, the Danehy opinion has not been appealed.
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