A North Carolina district court recently held that Dish Network (“Dish”) willfully violated the Telephone Consumer Protection Act (TCPA) when Satellite Systems Network (SSN) made more than 50,000 telemarketing and sales calls to phone numbers on the National Do Not Call Registry on Dish’s behalf. The named plaintiff alleged that SSN, acting as Dish’s agent, made these calls in violation of the TCPA and sought injunctive and monetary relief on behalf of a class of all persons whose numbers were on the registry but who nonetheless received multiple calls from SSN promoting Dish programs and services between May 1, 2010, and August 1, 2011. The court certified a class, and the case was tried to a jury in January 2017, resulting in an award of $400 (statutory damages) per call. During closing argument briefing, the issue turned on whether Dish’s violations were committed either “willfully or knowingly,” thus warranting treble damages, subject to the court’s discretion.
As a threshold matter, the court acknowledged that it was not aware of any factually-similar case discussing whether a principal may be liable for punitive damages under the TCPA for the willful violations of its agent. However, the court proceeded according to the jury’s finding that SSN was acting as Dish’s agent, and as such, the damages issue primarily turned on whether SSN acted knowingly or willfully. In this regard, the court highlighted findings at trial that SSN had made tens of thousands of calls to numbers on the National Do Not Call Registry and similarly had a long history of acting in disregard of the TCPA’s requirements. Further, the court placed great emphasis on the fact that SSN knew it was using lists that had not been “scrubbed” to ensure compliance with the registry. Therefore, the court found that SSN willfully and knowingly violated the provisions of the TCPA.
In addition, the court found that it would arrive at the same conclusion even if it were only evaluating the willfulness of Dish’s conduct. In so finding, the court rejected Dish’s argument that its actions were not willful because SSN disobeyed direct instructions from Dish to comply with the law and to scrub its lists for compliance with the registry. The court stated, “Dish easily could have discovered the full extent of the violations with a minimal monitoring effort.” Additionally, the court rejected Dish’s contention that the TCPA requires proof that Dish knew each and every call alleged in the case was in fact made in violation of the TCPA, reasoning that such a high standard would be inappropriate if applied to the high volume of telemarketing calls in the case. Ultimately, the court held that treble damages were “appropriate to deter Dish and to give suitable weight to the seriousness and scope of the violations Dish committed,” resulting in a damages award totaling over $61 million, or $1,200 per call.