One Call, One Damage Award, Holds Texas Federal Court

TCPA Connect

After a jury awarded a Telephone Consumer Protection Act (TCPA) plaintiff $8,500 in damages at trial, the judge declined to treble the award—and instead cut it to $6,500.

Steve Noviello sued Adam Wines Consulting LLC and Holloway Funding Group after he allegedly received ten text messages and three voice calls from Holloway on behalf of Adam Wines, despite his registration on the National Do Not Call (DNC) Registry.

Noviello also claimed that after he instructed Holloway to stop calling him, he received an additional four text messages.

At trial, the jury sided with Noviello and awarded the maximum statutory penalty of $500 per violation and found that all 13 calls were violations under the DNC claim. The jury also found the defendants liable for a total of four calls—the texts after the request to stop calling—and separately awarded $500 for each, totaling $8,500.

Noviello then sought to treble his damages while the defendants sought a reduction, arguing that a plaintiff cannot recover damages on the same call or text for multiple statutory violations.

Beginning with the existing damages award, U.S. Magistrate Judge David L. Horan said Noviello failed to point to any case law that permits a plaintiff to recover damages for multiple violations under Section 227(c)(5) for a single call or text—as opposed to permitting recovery of damages under both Sections 227(b) and 227(c)(5) for violations under each of those separate sections arising from a single call or text.

The Sixth U.S. Circuit Court has “persuasively” explained that a district court correctly concluded that, under Section 227(c)(5), “the TCPA does not allow for the award of statutory damages for each violation during a call, but instead limits statutory damages to one award per call,” in 2009’s Charvat v. GVN Mich., Inc.

Adopting the same reasoning, Magistrate Judge Horan said the outcome was dictated by Section 227(c)(5)’s statutory language, where “the term ‘each such violation’ must refer to ‘telephone call … in violation of the regulations,’ and not ‘the phrase “in violation of the regulations,”’ and that ‘damages are awardable on a per-call basis.’”

The court ruled that Noviello’s damages were limited to $6,500 ($500 for 13 calls and texts, as awarded by the jury).

Turning to the possibility of treble damages, Magistrate Judge Horan determined that the plaintiff had failed to present evidence of a willful or knowing violation of the TCPA, as courts have interpreted the phrase as not requiring bad faith, but only requiring that the person had reason to know, or should have known, that his conduct would violate the statute.

“After hearing the evidence at trial, the court cannot conclude that it supports a finding that Holloway willfully or knowingly violated the regulations prescribed under 47 U.S.C. § 227(c),” the court said. Instead, the recorded call presented as evidence supported a finding of negligence, and the evidence did not support that the same person who told Noviello he would stop calling was the person who texted him four more times.

“And, absent evidence to support that the actual violations were committed knowingly or willfully, Noviello’s arguments based on the need for general or specific deterrence or on Holloway’s or Adam Wines’s participation—or lack thereof—in the trial of this case do not support an increase under Section 227(c)(5)(C),” the court concluded.

The court declined to treble Noviello’s $6,500 in damages.

To read the memorandum opinion and order in Noviello v. Adam Wines Consulting, LLC, click here.

Why it matters: The court’s decision to cut the plaintiff’s damages, finding that Section 227(c) doesn’t support the award of damages for multiple violations of the statute for the same call or text, could prove beneficial to other TCPA defendants. The court also declined to treble the (lowered) jury award, concluding that the plaintiff failed to present evidence of a knowing or willful violation of the statute.



pursuant to New York DR 2-101(f)

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