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FCC Hits TWC for TCPA Violations

By TMCnet Staff

In a recently decided case against Time Warner (News - Alert) Cable, the courts awarded $229,500 to a customer after TWC places 163 autodialed calls to her cell phone over the course of 13 months. The case hinged on issues that recently were decided by the FCC’s (News - Alert) rule clarification last month.

TWC defended the calls on three separate points. First, it said that the interactive voice response system that made the calls was not an automatic dialing system. Second, it said that it believed it was calling a different individual who had given prior express consent to be called. Third, it said the customer agreement allowed for the calls.

Unfortunately for TWC, none of these arguments proved sufficient.

First, the court found that the IVR system was sufficiently automated to be considered an autodialer. And at any rate, we might add, the new clarification of TCPA rules places just about any device within the purview of TCPA oversight since most devices can muster some form of automation and therefore autodialer functionality.

Second, the courts struck down the argument that TWC was trying to reach a different person who had given consent because the new clarification of the TCPA rules states that businesses are only allowed to call a wrong number once before they must make the proper adjustment. It is okay for a business to call a wrong number, but when the business discovers the number is wrong then of course they must stop. Calling the customer 163 times obviously exceeded reasonableness.

Third, the courts did find that the TWC service agreement authorized the company to call customers. However, the TCPA as interpreted by the recent FCC ruling clearly states that customers can revoke this permission at any time. So when TWC called the customer and this customer said to stop calling, TWC needed to stop calling. The original agreement authorized TWC to call, but this authorization ended the moment the customer told them to stop calling her.

Most businesses use automated calling appropriately, and a good autodialer can be spectacularly useful for contacting customers, delivering important information, and marketing products and services. As this and other court cases shows, however, businesses must exercise good judgment when using the technology. Or common sense, at least. If your business is calling someone 163 times and the customer has asked not to be called, get ready for a lawsuit because you’ve executed very poor judgment.

For the rest of us, this is a reminder that autodialers are powerful but also must be used responsibly.