Part of what makes the Telephone Consumer Protection Act (“TCPA”) so dangerous is that it allows courts to award triple damages (aka treble damages) if the court finds that the defendant knowingly or willfully violated the TCPA. The TCPA allows a plaintiff to recover $500 per TCPA violation. But if the court finds the defendant knowingly or willfully violated the TCPA, the court has the discretion to increase the plaintiff’s recovery to $1,500 per TCPA violation. Therefore, parties often argue over whether a TCPA violation was committed knowingly or willfully. In Koeller v. Seemplicity,[1] the United States District Court for the Eastern District of Missouri recently issued an opinion on that issue.
Koeller v. Seemplicity Sec. Inc.
In Koeller, the plaintiff alleged he received two unwanted sales calls from a Seemplicity employee in violation of the TCPA. The plaintiff’s number was listed on the National Do-Not-Call Registry (“NDNCR”). Thus, he alleged Seemplicity violated the TCPA’s NDNCR rule.[2] That rule prohibits callers from making a sales call to a residential telephone subscriber that has registered his or her telephone number on the NDNCR, unless the residential telephone subscriber provided his or her prior express invitation or permission to receive such calls, or the call was made pursuant to an applicable established business relationship with the residential telephone subscriber. The NDNCR rule does not apply to business telephone numbers. For that reason, the plaintiff alleged that his cellular telephone number that Seemplicity called was used for personal residential purposes and was not associated with any business. The plaintiff alleged that he did not consent to the calls and that he was never a Seemplicity customer. The plaintiff also sought triple damages.
Seemplicity moved to dismiss the plaintiff’s TCPA claim, and in the alternative, dismiss plaintiff’s claim for triple damages. Seemplicity argued that the TCPA claim should be dismissed because the plaintiff pled his cellphone, not his residential telephone, was called. Defendants routinely make this argument because the plain language of the TCPA provides that the NDNCR rule is only supposed to apply to calls made to residential telephones. The majority of courts have held that a cellphone can be considered a residential telephone in the context of the NDNCR rule when it is used for personal residential purposes. The court in Koeller followed the majority of courts and ruled that the plaintiff’s allegation that his cellphone was used for personal residential purposes was enough to establish, at least for the purpose of deciding Seemplicity’s motion to dismiss, that the plaintiff’s cellphone constituted a residential telephone. Thus, the court elected not to dismiss the TCPA claim. Here you can read about why at least one district court (correctly) believes the TCPA’s NDNCR rule should not apply to cellphones.
A Knowing or Willful TCPA Violation
The court then turned to Seemplicity’s argument for dismissing the plaintiff’s claim for triple damages. Seemplicity argued that the plaintiff’s claim for triple damages should be dismissed because the plaintiff failed to sufficiently plead that Seemplicity knowingly or willfully violated the TCPA. The court analyzed the relevant part of the TCPA and found the following:
- A person knowingly violated the NDNCR rule when the person knew that he or she initiated a sales call and that the call was to a person that had registered his or her telephone number on the NDNCR.
- A person willfully violated the NDNCR rule when the person purposefully initiated a sales call to a person that had registered his or her telephone number on the NDNCR.
The court found that the plaintiff failed to allege facts showing that Seemplicity knew that the plaintiff had registered his phone number on the NDNCR or that Seemplicity purposefully called a person who had registered his number on the NDNCR. Thus, the court dismissed plaintiff’s claim for triple damages.
Per this opinion, for a violation of the NDNCR rule to be knowing or willful, the caller must know that the number being called is registered on the NDNCR, which a caller is unlikely to know in some cases, such as when you’re calling published business numbers that are not eligible for DNC protections in the first place.
This is a defendant-friendly opinion that those facing a claim for triple damages under the TCPA should remember. But this is only the opinion of a district court and therefore is not binding on any other court.
[1] Case No. 4:24-cv-00528-SRC, 2024 U.S. Dist. LEXIS 205164 (E.D. Mo. Nov. 12, 2024).
[2] 47 C.F.R. 64.1200(c)(2); 47 U.S.C. 227(c)(5).