Case 2:18-cv-02071-CFK Document 62 Filed 05/08/19 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES EVERETT SHELTON
CIVIL ACTION
NO. 18-2071

v.
FAST ADVANCE
FUNDING, LLC
OPINION

Plaintiff James Shelton brought this action for damages based on alleged
violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227,
and the regulations promulgated thereunder, 47 C.F.R. § 64.1200, claiming that
Fast Advance Funding, LLC ("Fast Advance") called his personal cellular
telephone number for a telemarketing purpose despite his number being on the
National Do Not Call Registry in violation of §227(c)(3)(F) and 47 C.F.R. §
64.1200( c)(2), without having a written policy, available on demand, for
maintaining a do-not-call list in violation of 47 C.F.R. § 64.1200(d)(l), and after
Plaintiff requested that he not receive calls from Defendant in violation of 47
C.F.R. § 64.1200(d)(3).
I.

INTRODUCTION

Throughout this litigation, Defendant Fast Advance has failed to participate
in discovery. Significantly, Defendant never responded Plaintiffs Requests for
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Admission, which Plaintiff propounded on Defendant on February 11, 2019. ECF
No. 40-4; ECF No. 43. Three weeks prior to the date set for trial, Plaintiff filed a
Motion in Limine to prevent Defendant from Offering Testimony or Evidence
Contrary to the Admitted Requests for Admission, requesting that the Court
confirm that the Requests for Admission are admitted, pursuant to Federal Rule of
Civil Procedure ("FRCP") 36(a)(3). ECF No. 40. In its opposition, Defendant
argued that the discovery deadline was March 1, 2019, only 18 days after Plaintiff
sent Defendant the Requests for Admission, and that Defendant is entitled to 30
days to respond under F.R.C.P 36(a)(3). ECF No. 43. Therefore, Defendant
argued, as "Defendant's response date would have been March 13, 2019," which
"is after the close of discovery, no response was required." ECF No. 43 at 1.
Defendant claimed:
Plaintiff was obliged to serve his Requests for Admissions early enough for
Defendant to respond before the completion of the discovery period or move
the Court for an extension of the discovery completion date. Plaintiff did
neither, and his Request for Admissions were untimely. No response was
required.
Id. at 1-2.
Defendant cited no law nor pointed to any statute stating that a defendant
does not have to respond to Requests for Admission with a due date 12 days after
the discovery deadline, nor did Defendant explain why it did not request that the
discovery period be extended. This Court, therefore, granted Plaintiffs Motion in

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Limine, confirming the Requests for Admission were admitted and requiring that
Defendant not seek to admit any evidence at trial to refute or rebut the admissions.

II.

REQUESTS FOR ADMISSION
In completely failing to participate in discovery and in ignoring Plaintiffs

requests for information despite FRCP 36(a)(3)'s requirement that a "matter is
admitted unless ... the party ... serves ... a written answer or objection,"
Defendant compelled the Court to find for the Plaintiff. FRCP 36 provides the
parties an opportunity to "reduce the area of dispute at the trial," and allows the
parties to provide a "studied response" made by the party with the "direction and
supervision of counsel." Airco Indus. Gases, Inc. Div. of the BOC Grp., Inc. v.
Teamsters Health & Welfare Pension Fund ofPhiladelphia & Vicinity, 850 F.2d
1028, 1036 (3d Cir. 1988). "Rule 36 serves two vital purposes, both of which are
designed to reduce trial time. Admissions are sought, first to facilitate proof with
respect to issues that cannot be eliminated from the case, and secondly, to narrow
the issues by eliminating those that can be." Langer v. Monarch Life Ins. Co., 966
F .2d 786, 803 (3d Cir. 1992).
If Defendant had responded to these Requests for Admission, or participated

in discovery in any way, the Court would have been able to structure the case for
trial. Instead, Defendant was disengaged. In the weeks leading up to trial, this
Court was required to email Defendant's counsel multiple times, including sending
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a letter via mail directly to Defendant Fast Advance, to ensure that it had
representation present for trial. A responsive counsel for Defendant finally entered
his appearance on April 8, 2019, ECF No. 41, and although Defendant timely filed
its pretrial memorandum, it failed to include a proposed verdict slip, proposed
Points for Charge, and proposed voir dire, as required by the scheduling order.
ECF No. 42; ECF No. 43.
On the morning of what was intended to be a jury trial, on May 1, 2019, this
Court met with the parties to discuss the remaining issues, if any, for a jury to
decide in this matter. At the time of this meeting, this case had been called for a
jury trial, ECF No. 38, and a jury was waiting to be empaneled. Defendant argued
that it should be allowed to take the testimony of Plaintiff James Shelton to
establish that his phone was used for business purposes, which it claimed would
act as a bar to standing under the TCP A, 1 despite having done no discovery at all

1

Defendant claimed in its Amended Pretrial Memorandum, ECF No. 53, that if Plaintiff had
used his phone for business purposes, Plaintiff would lack standing to bring a TCP A action,
pursuant to Shelton v. Target Advance LLC, No. CV 18-2070, 2019 WL 1641353, at *1 (E.D. Pa.
Apr. 16, 2019). In that matter, Plaintiffs 47 U.S.C. § 227(c) claims were dismissed for lack of
standing because Plaintiff used his phone for business purposes, and the Court therefore
determined that Plaintiff was not entitled to list this phone number on the National Do Not Call
Registry. Target Advance, 2019 WL1641353 at *6. In this matter, Plaintiff brings three distinct
claims, alleging willful or knowing violation of each, for a total of six counts. Only one of these
violations, and therefore two counts, relies on§ 227(c). Therefore, even if the violation of§
227(c) was dismissed for lack of standing, Counts III-VI would remain. Accordingly, this
argument would not act as a total bar to standing under the TCPA, as Defendant claims.
Furthermore, in that matter, the complaint alleged that "Plaintiff uses the Phone Number for
personal matters and for a business he owns called Final Verdict Solutions, which is in the
judgment collection business and has been registered with the Commonwealth of Pennsylvania
since March 2016." Id. In this matter, the Complaint, which was admitted via Request for

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on this, or any other, matter during the discovery period. Furthermore, neither in
its pretrial memorandum nor at the hearing prior to the trial did Defendant cite any
Third Circuit precedent, nor any explicit section of the TCPA, decisively
establishing that use of one's phone for business purposes precluded standing. 2
This Court determined that, because the Requests for Admission were
deemed admitted, Defendant had admitted that Plaintiffs cell phone was a
"personal cellular telephone," and a "private mobile telephone ... used for
personal purposes." ECF No. 1 at ifif 20, 50. 3 Therefore, the Court concluded that

Admission No. 15, nowhere states that this phone number was used for anything but personal
purposes, and therefore the Court determined that there was sufficient evidence to determine, as
a matter of law, that the phone was used for personal purposes and, therefore, Plaintiff was
permitted to register his phone number on the National Do Not Call Registry. Defendant made
no argument drawing upon the requirement in§ 227(c), § 64.1200(c) and (d) that Plaintiffs
phone be "residential." See infra note 7.
2
In its pretrial memorandum and at the May 1, 2019 hearing, Defendant argued that the holding
in Target Advance would preclude any telephone number used for business purposes from
bringing any TCPA claim. ECF No. 53. The Court in Target Advance, however, held only that
claims under§ 227(c) may be barred if"Plaintiffheld the Phone Number out to the world as a
business phone number, [because] he could not register it on the National Do Not Call Registry
for purposes of avoiding business-to-business calls." Target Advance LLC, 2019 WL 1641353,
at *6 (E.D. Pa. Apr. 16, 2019). The court in Target Advance did consider whether Plaintiff
would be wholly protected by the TCPA, discussing that ifthe "sole purpose of [plaintiffs
company] is to drum up TCP A litigation by inducing business-to-business robocalls, Stoops
would appear to bar Plaintiffs claims since he likely has not suffered an injury-in-fact and his
claims are not within the zone of interests the TCP A was enacted to protect.." Id. at *4 (citing
Stoops v. Wells Fargo Bank, NA., 197 F. Supp. 3d 782 (W.D. Pa. 2016)). The Target Advance
court held, however, that discovery was required to resolve those factual issues. Id. This
conclusion is distinct from the "business purposes" argument made by Defendant. There is no
evidence of Plaintiffs business in the record, and Defendant has never argued that Plaintiffs
business was created for the "sole purpose" of "drum[ming] up TCP A litigation by inducing
business-to-business robocalls." Target Advance, 2019 WL 1641353 at *6. Therefore, this
argument is irrelevant to the Court's analysis.
3
All allegations in Plaintiffs complaint were admitted via Request for Admission No. 15, which
states "Admit to all allegations, factual and legal, in Plaintiffs complaint."

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the evidence admitted conclusively established that Plaintiff was permitted to
register his telephone number on the National Do Not Call Registry, and, even
considering the holding in Shelton v. Target Advance, Plaintiff has standing in this
matter. Once the Court had determined the issue of standing, and because the
Requests for Admission were deemed admitted, the parties agreed that there were
no other issues for which they needed a jury, even though a jury was waiting to be
empaneled. The parties agreed that the Court should decide the only remaining
issue, whether the violations of the TCPA and its regulations were willful and
knowing, which the statute states is a matter for the court to determine. 4 The Court
made its findings based on a preponderance of the evidence standard.

III.

FINDINGS OF FACT

1.

The phone calls made in this case were claimed to be violative of the

regulations, 47 C.F.R. § 64.1200(c) and (d), established pursuant to 47 U.S.C. §
227(c), which require that "[n]o person or entity shall initiate any telephone
solicitation to ... [a] residential telephone subscriber who has registered his or
her telephone number on the [N]ational [D]o-[N]ot-[C]all [R]egistry," §
64.1200( c)(2), and "[n]o person or entity shall initiate any call for telemarketing

4

"If the court finds that the defendant willfully or knowingly violated this subsection or the
regulations prescribed under this subsection, the court may, in its discretion, increase the amount
of the award to an amount equal to not more than 3 times the amount available under
subparagraph (B) of this paragraph." 47 U.S.C. § 227(c)(5)(C).

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purposes to a residential telephone subscriber unless such person or entity has
instituted procedures for maintaining a list of persons who request not to receive
telemarketing calls made by or on behalf of that person or entity." § 64.1200(d)
(emphasis added).
2.

Plaintiff James Shelton is the subscriber of a cellphone number (the

"Phone Number"), which he uses as his personal cellular telephone number for
"personal purposes," and which has been registered on the National Do Not Call
Registry since June 2015. ECF No. 1 at irir 19-20, 50. 5
3.

Defendant has no established business relationship with Plaintiff, and

Defendant lacks express prior written consent to contact Plaintiff on his cellular
telephone for solicitation purposes. ECF No. 40-1 at irir 9-10.
4.

On March 16, 2018, Plaintiff received a call from a representative of

Fast Advance, which Plaintiff answered, regarding a sales pitch about business
funding. ECF No. 1 at irir 21-22. Plaintiff told the caller that ifhe was interested
or had any questions, he would call Defendant back. Id. at ir 25.
5.

Plaintiff did not consent at that time to receiving any additional

telemarketing calls. Id. After this first call, without ever giving Fast Advance

5

Based on the Requests for Admission having been deemed admitted, all allegations in the
Complaint have also been deemed admitted, pursuant to Request for Admission No. 15.

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permission or consent to call him, Plaintiff received an additional 15 calls from
Fast Advance from March 16, 2018 through April 20, 2018. Id. at ,-r 29.
6.

On May 1, 2018, Plaintiff wrote an email to Fast Advance, copying

Fast Advance's legal counsel, requesting that Fast Advance put his number on their
internal do-not-call list and requested to receive a copy of Fast Advance's internal
do-not-call policy. Id. at ,-r 35. Defendant did not provide a written copy of their
internal do-not-call policy to Plaintiff. Id. at ,-r 36.
7.

From May 1-3, 2018, Plaintiff received another five calls from

Defendant. Id. at ,-r,-r 42-47.
8.

In total, Plaintiff received 22 calls from Fast Advance while his

number was on the National Do-Not-Call registry, five of which Plaintiff received
after requesting to have his number on Defendant's internal do-not-call list. Id. at

,-r 53; ECF No. 40-1 at ,-r 32.
9.

Defendant has admitted that it "does not scrub against the [N]ational

Do Not Call Registry," "does not honor Do Not Call requests as a matter of
routine," and "does not purchase the [N]ational Do Not Call list from the [Federal
Trade Commission ('FTC')]." ECF No. 40-1 at ,-r,-r 20-22.
10.

Defendant further admitted that it "has neither policies nor procedures

in place to honor 'do not call' requests," "does not maintain an internal 'Do Not

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Call' list," "never recorded any Do Not Call request made from" Plaintiff, and "did
not honor Plaintiff Shelton's Do Not Call requests." ECF No.
11.

40-1at~23-26.

Finally, Defendant admitted that it does not have "TCPA compliance

policies available for production upon request," that it "failed to provide Plaintiff
with a copy of their Do Not Call [and TCPA] compliance policies upon Plaintiffs
request," and that "the 22 calls Defendant placed to Plaintiff all violated the
TCP[A], [§] 227(c)." Id.
IV.

at~~

28-30, 33.

CONCLUSIONS OF LAW

12.

Plaintiff has alleged the following violations of the TCPA: making a

telephone solicitation to Plaintiffs cellular phone number which was included in
the National Do Not Call Registry, 47 U.S.C. § 227(c)(3)(F) and 47 C.F.R. §
64.1200( c)(2); initiating a call for telemarketing purposes to his cellular phone
without having a written policy, available on demand, for maintaining an internal
do-not-call list, 47 C.F.R. § 64.1200(d)(l); failing to record his do-not-call request
at the time such a request was made and failing to honor his do-not-call request
within 30 days from the date of the request, 47 C.F.R. § 64.1200(d)(3).
13.

Plaintiff is entitled to bring a private right of action for violation of the

regulations prescribed under §227(c) pursuant to §227(c)(5) ifhe has "received
more than one telephone call within any 12-month period by or on behalf of the
same entity." 47 U.S.C. § 227(c)(5). Plaintiff is further entitled to recover actual
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damages or "receive up to $500 in damages for each such violation," whichever is
greater, and ifthe "court finds that the defendant willfully or knowingly violated
the regulations prescribed under this subsection, the court may, in its discretion,
increase the amount of the award to an amount equal to not more than 3 times the
amount available under subparagraph (B) of this paragraph." 47 U.S.C. §
227(c)(5)(C). 6

6

This Court questions whether Congress intended that a jury determine in the first instance
whether there has been a violation of the regulations promulgated by the FCC or whether
Congress had anticipated that the FCC or FTC would initially determine if there were a violation,
and a plaintiff could then bring a private action for damages on this finding of violation. Clearly
both the FTC and FCC have decided it is not in their purview to determine individual violations
of the regulations. See How the FCC Handles Your Complaint, FCC.GOV,
https://consumercomplaints.fcc.gov/hc/en-us/articles/202752940-Your-Role-in-the-FCCConsumer-Complaint-Process (last visited May 7, 2019) ("We do not resolve individual
complaints on[] issues [covered by the TCPA]. However, the collective data we receive helps us
keep a pulse on what consumers are experiencing, may lead to investigations and serves as a
deterrent to the companies we regulate."); National Do Not Call Registry, FTC.Gov,
https://www.consumer.ftc.gov/articles/O 108-national-do-not-call-registry (last visited May 7,
2019) ("Will I hear back from the FTC regarding my complaint? Due to the volume of
complaints, the FTC cannot respond directly to every complaint. The FTC and other law
enforcement agencies analyze complaints to spot trends and to identify and take action against
the people responsible for these illegal calls.") Because both the FCC and FTC allow consumers
to file a complaint but do not then resolve that complaint, a consumer has no other recourse to
recover for TCP A violations outside of paying a $400 fee to begin costly federal litigation, and
discovery on violation issues, which most consumers are not in a position to do. What is costly
in this federal litigation is forcing the consumer to prove the violation in the first instance
because the consumer does not come into court with a violation already determined by the FCC
or FTC. The FTC acknowledges this epidemic of nuisance calls by stating, "[d]ue to the volume
of complaints," yet the FTC and FCC leave the consumer to fend for him or herself thus giving
the law and regulations no teeth and allowing the nuisance calls to continue unfettered despite
having promulgated the very regulations meant by Congress to control them. This leaves the
field not to consumers but to a cottage industry of serial TCP A filers, who are looking simply to
make money and who know that the prime offenders of the TCP A actually target members
registered on the National Do Not Call Registry, because they know these numbers to be good,
viable numbers. This Court does not believe that Congress intended that a jury determine
whether there was a violation of the regulations, requiring the jury to wade through FCC rules
and regulations, but rather that a consumer first file a complaint with the FCC or FTC, the FCC

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14.

Because the Request for Admissions were admitted based on

Defendant's failure to respond to the Requests for Admission within the time
prescribed by Rule 36(a)(3), this Court concludes that Plaintiff is entitled to
judgment on all six counts.
15.

The TCPA prohibits sales calls to residential telephone subscribers7

for telephone numbers listed on the National Do Not Call Registry. Specifically, §
227(c )(3) states:

or FTC determine whether there has been a violation of the regulations, and, finally, a court
determine whether this violation, which has already been determined, was willful and knowing,
potentially calling for treble damages pursuant to§ 227(c)(5)(C) ("If the court finds that the
defendant willfully or knowingly violated the regulations prescribed under this subsection, the
court may, in its discretion, increase the amount of the award.") (emphasis added). However, as
it currently stands, those juries that substantively consider TCP A litigation, of which there are
few, are attempting to fill the vacuum left by agencies who are in a much better position to
determine a violation. The jury process as it has been evolved essentially eliminates as a
practical matter the "private right of action" of the average consumer.
7
Defendant did not raise the question of whether a cellular telephone number, like Plaintiffs
telephone number, would be included in the definition of "residential telephone" or whether
Plaintiff is a "residential telephone subscriber" as required by the TCP A. Since the Defendant
did not make this argument, this Court will not consider it in its findings. However, this Court
questions whether cellular telephone subscribers were intended to be included in the definition of
"residential telephone subscriber," as drafted by Congress in 1991 and the regulations
promulgated by the FCC shortly after. The definition of residential is "used as a residence or by
residents," and "resident" is defined as "living in a place for some length of time," or "one who
resides in a place." Residential, MERRIAM-WEBSTER.COM, https://www.merriamwebster.com/dictionary/residential; Resident, MERRIAM-WEBSTER.COM, https://www.merriamwebster.com/dictionary/residents. Therefore, the plain language of "residential telephone"
describes a telephone used by individuals in the home, and not a cellular telephone, which can be
used anywhere. Furthermore, the TCP A specifically mentions "cellular telephone service" in §
227(b) and§ 64.1200(a)(l)(iii), indicating that both Congress and the FCC were aware of the
distinction between a cellular telephone and a residential telephone and purposely protected only
"residential telephone subscribers" under§ 227(c), § 64.1200(c) and (d). "A familiar principle
of statutory construction ... is that a negative inference may be drawn from the exclusion of
language from one statutory provision that is included in other provisions of the same statute."
Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006). The Court, therefore, is not convinced that

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The regulations requi ed by paragraph (2) may require the establishment and
operation of a single national database to compile a list of telephone
numbers of residenti 1 subscribers who object to receiving telephone
solicitations, and to ake that compiled list and parts thereof available for
purchase. If the Com ission determines to require such a database, such
regulations shall- ...
(F) prohibit any person from making or transmitting a telephone solicitation
to the telephone numter of any subscriber included in such database
47 U.S.C. § 227(c)(3)
16.

The resulting rlgulations establish a National Do Not Call Registry

and state:
No person or entity s~all initiate any telephone solicitation to ... [a]
residential telephone subscriber who has registered his or her telephone
number on the natio?ial do-not-call registry of persons who do not wish to
receive telephone sol(citations that is maintained by the Federal
Government.
47 C.F.R. § 64.1200( )(2)
17.

The Court con ludes that Plaintiff is entitled to judgment on Count I.

Defendant has admitted tha Plaintiffs personal telephone number "has been
successfully registered on t e National Do Not Call Registry since June 26, 2015."
ECF No.

1at~20.

Defendint has further admitted that Defendant placed 22

telephone solicitations to P1aintiff s telephone while it was registered on the
National Do Not Call Regi try. ECF No. 1 at~~ 21-22, 28, 29, 39, 42, 43, 44, 45,

Congress and the FCC, through the TCP A and its regulations, intended to protect "cellular
telephone subscribers" along wi h "residential telephone subscribers." Again, however,
Defendant did not raise this arg ment, and therefore it will not be considered in the Court's
findings.

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46; ECF No. 40-1

at~~

32, 33. Because Plaintiff has received more than one

telephone call from Defendant in a 12-month period, he has a private right of
action to recover actual damages or receive up to $500 for each violation,
whichever is greater. 47 U.S.C. § 227(c)(5).
18.

Therefore, the Court concludes that Plaintiffs are entitled to $500 for

each phone call made to Plaintiffs phone in violation of§ 227(c)(3) and§
64.1200(c)(2). 8
19.

The Court further concludes, pursuant to§ 227(c)(5), that Defendant's

violations were knowing and willful. Defendant has admitted that it "lacks any
sort of express prior consent, written, verbal, or otherwise, to contact Plaintiff on
his cellular phone for commercial purposes," that "Defendant does not scrub
against the [N]ational Do Not Call Registry," and "does not purchase the
[N]ational Do Not Call list from the FTC." ECF No. 40-1

at~

11, 20, 22.

Defendant further admitted that "Defendant has no established business
relationship with Plaintiff," nor does Plaintiff have an "account with Defendant."
Id. at ~~ 8, 9. Yet, Defendant made 22 calls for the purpose of solicitation to

Plaintiffs telephone number. Therefore, this Court concludes that Defendant has

8

In the Complaint, Plaintiff requested "injunctive relief prohibiting such conduct in the future,"
for Counts I and II. ECF No. 1 at ,-i,-i 56, 58. Despite initially requesting such relief, Plaintiff has
failed to pursue injunctive relief and has pursued only monetary relief. The Court therefore will
not grant Plaintiff relief that he did not pursue.

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willfully and knowingly violated§ 227(c)(3)(F) and 47 C.F.R. § 64.1200(c)(2) and
that Plaintiff is entitled to treble damages, totaling $1500 per phone call.
20.

The regulations the FCC ("Federal Communications Commission")

promulgated concerning the TCPA prohibit a person or entity from initiating a call
for telemarketing purposes to a residential telephone subscriber unless they have
instituted minimum procedures for maintaining an internal do-not-call list. Title
47 C.F.R. § 64.1200(d)(l) requires that "[p]ersons or entities making calls for
telemarketing purposes must have a written policy, available upon demand, for
maintaining a do-not-call list."
21.

Defendant has admitted that "Defendant has neither policies nor

procedures in place to honor 'do not call' requests." ECF No 40-1 at 'if 23.
Defendant further admits that "Defendant does not have TCPA compliance
policies available for production upon request," and that "Defendant failed to
provide Plaintiff with a copy of their Do Not Call compliance policies upon
Plaintiffs request." ECF No. 40-1at'if29.
22.

This Court, therefore, concludes that Defendant has violated 4 7 C.F .R.

§ 64.1200(d)(l) by initiating a call to Plaintiff for telemarketing purposes without
having "a written policy, available upon demand, for maintaining a do-not-call
list."

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23.

The FCC regulations further require a person or entity making a call

for telemarketing purposes to record any request from a residential telephone
subscriber not to receive calls from that person or entity and require that the person
or entity honor that request within a reasonable time from the date the request is
made, not to exceed thirty days. 47 C.F.R. § 64.1200(d)(3).
24.

Defendant has admitted that "Defendant was given repeated 'do not

call' requests by Plaintiff or an individual at Plaintiffs number," "Defendant does
not maintain an internal 'Do Not Call' list," "never recorded any Do Not Call
request made from Plaintiffs telephone number," "did not honor Plaintiff
Shelton's Do Not Call requests," and "Defendant called Plaintiff at least five times
after being told to stop calling." ECF No. 40-1 at ifif 16, 25, 26, 31.
25.

The Court, therefore, concludes that Defendant has violated 4 7 C.F .R.

§ 64.1200(d)(3) by initiating a call to Plaintiff for telemarketing purposes without
recording Plaintiffs do-not-call request and after he requested to no longer receive
calls from Defendant. 9

9

Defendant did not raise the issue of whether Defendant calling Plaintiff in the two days
following Plaintiffs request to no longer receive calls from Defendant is a "reasonable" amount
of time following the request to comply, especially considering that the TCPA regulations
anticipate a period of "30 days" as a reasonable time. §64.1200(d)(3). However, because
Defendant did not raise this issue, the Court determines that it waived its opportunity to
challenge that these calls were made within the "reasonable" amount of time to honor the do-notcall request. Furthermore, because the Court finds that Plaintiff can receive statutory damages
on a per-call basis, and not recover for multiple violations in each call, Plaintiff has already
received statutory damages for this phone call based on violations of§ 227(c)(3)(F) and§
64.1200(c)(2).

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26.

The Court further concludes that Defendant willfully and knowingly

violated 47 C.F.R. § 64.1200(d)(l) and (d)(3) by initiating a call to Plaintiff for
telemarketing purposes without having policies and procedures in place for
maintaining a do-not-call list, without recording Plaintiffs do-not-call request, and
after Plaintiff requested to no longer be called by Defendant for telemarketing
purposes.
27.

The Court concludes, however, that Plaintiff is limited to collecting

statutory damages on a per-call basis for multiple claims, specifically Counts IIIVI brought pursuant to the regulations requiring certain minimum procedures for
maintaining a do-not-call list, 47 C.F.R. § 64.1200(d)(l) and (d)(3). The
introductory language of 47 C.F.R. § 64.1200 states, "[n]o person or entity shall
initiate any call for telemarketing purposes to a residential telephone subscriber

unless such person or entity has instituted procedures for maintaining a list of
persons who request not to receive telemarketing calls made by or on behalf of that
person or entity," prior to listing the minimum standards these procedures must
meet. 47 C.F.R. § 64.1200(d) (emphasis added).
28.

Interpreting this introductory language in conjunction with the

"minimum standards" indicates that the regulations focus on the phone call itself.
Therefore, the "violation of the regulations" anticipated by§ 227(c)(5) is the

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initiation of the phone call without having implemented the minimum procedures
and not the failure to have the minimum procedures alone.
29.

As there were 22 phone calls made in violation of the TCPA, Plaintiff

is able to receive $500 per phone call violation. Because the Court has found that
these violations were willful and knowing, Plaintiff is entitled to receive $1500 per
phone call, pursuant to 47 U.S.C. § 227(c)(5)(C).
30.

Additionally, Plaintiffs private right of action for all counts arises

under§ 227(c)(5), which specifically states that a person must "receive[] more than
one telephone call within any 12-month period... in violation of the regulations"
to have a private right of action.
31.

This Court concludes that this language of§ 227(c)(5) anticipates a

plaintiff receiving $500 per call that is in violation of§ 227(c), and not $500 per
violation per call. 10

10

Plaintiff requests damages for multiple violations per phone call, without citing any binding
authority requiring such a result. The Third Circuit has not directly discussed the issue of
whether a plaintiff may recover for multiple violations of§ 227(c) in the same telephone call.
The Sixth Circuit, however, has explicitly held that the "language [of§ 227(c)(5)]
unambiguously allows for statutory damages on only a per-call basis." Charvat v. GVN
Michigan, Inc., 561 F.3d 623, 631 (6th Cir. 2009); see also Lary v. Trinity Physician Fin. & Ins.
Servs., 780 F.3d 1101, 1106 (11th Cir. 2015) (comparing Charvat v. NMP, LLC, 656 F.3d 440,
449 (6th Cir.2011) (holding that a plaintiff can recover under section§ 227(b)(3) and section§
227(c)(5) even if both violations arose from the same call) and GVN Michigan, Inc., 561 F.3d at
631) (contrasting section 227(c)(5), which uses the word "call," with section 227(b)(3), which
does "not even contain the word 'call'")). This Court agrees that Plaintiff is only allowed to
receive statutory damages per call and not per violation, if there are multiple violations per call.

17

 Case 2:18-cv-02071-CFK Document 62 Filed 05/08/19 Page 18 of 18

32.

Therefore, the Court concludes that Plaintiff is not entitled to receive

more than $1500 for each phone call, even if each phone call violates more than
one regulation prescribed under§ 227(c). Accordingly, even though this Court
concludes that Defendant also violated 47 C.F.R. § 64.1200(d)(l) and (d)(3),
Plaintiff may only recover on a per-call basis. Plaintiff is therefore entitled to
$1500 for each of the 22 calls, or $33,000. A verdict will issue simultaneously
with this Opinion.
BY THE COURT:

DATED:

18