When Time Warner Cable's computer system noticed that customer Luiz Perez hadn't paid a bill, it started robocalling him—163 times over a 13-month period in 2013 and 2014.
But it turned out the calls were going to the wrong person, another customer named Araceli King, of Texas. King, who wasn't behind on her bills, "told a TWC representative that she was not Luiz Perez" after the 10th call to her number. (The cell phone number originally belonged to Perez but Sprint had re-assigned it to King.) Yet TWC kept on calling, 153 more times. The last 74 of those calls even came after King sued the cable company to get it to stop harassing her.
That's why a federal judge yesterday ordered TWC to pay King $229,500 for violations of the Telephone Consumer Protection Act (TCPA). The ruling was issued by US District Judge Alvin Hellerstein in New York City, where TWC is based.
The TCPA sets out a $500 fine for each violation, an amount that can be tripled for willful or knowing violations. The judge gave King triple damages for each of the 153 willful violations committed by Time Warner Cable.
TWC officials are "reviewing the ruling and our options to determine how we are going to proceed," a company spokesperson told Ars. We asked TWC if it has fixed the problems that led to King being called so many times but did not receive an answer.
The company admitted to the facts of the case but argued that it should not be held liable.
Judge not impressed by cable company's arguments
"TWC does not dispute the number of calls it placed to Ms. King, although it notes that only 70 of the calls resulted in recorded messages being played to Ms. King or her voicemail," Judge Hellerstein wrote. The remaining calls were placed but not connected. But that doesn't matter because the TCPA specifies that "any call" can be a violation. "TWC’s argument merely highlights that 70 of those calls were doubly-improper, as they used both an ATDS [automatic telephone dialing system] and a pre-recorded voice," the judge wrote.
TWC further argued "that the remaining 93 calls do not violate the TCPA because the IVR [interactive voice response] system is not an automatic dialing system under the Act," Hellerstein continued. "TWC also contends that Ms. King lacks constitutional standing because she has not suffered any harm, that she in fact consented to the calls under the customer agreement, and that TWC believed it was calling Luiz Perez, who had given consent."
The judge dismissed these arguments one by one. While the customer agreement allows for robocalls, King clearly withdrew her consent after the 10th call. The argument that TWC's robocalling system isn't an "automatic dialing system" also failed in the judge's view.
"TWC argues that its IVR system does not qualify as an ATDS because it did not generate numbers to dial at random or in sequence," he wrote. "Rather, it made a list of customers that met certain criteria—specifically customers who were behind on their bills—and dialed them. It argues that the list could just as easily have been created by a human. But TWC ignores the fact that the lists were not created by a human. In fact, it has not identified any human involvement at all in any stage of the customer selection, list compilation, or dialing processes. The method is fully automated from start to finish."
Even though the TWC system did not dial King's number at random, the relevant fact is that the system has the ability to dial at random, the judge wrote. "This definition ensures that robo-callers cannot skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers," Hellerstein wrote.
Hellerstein called the constitutional argument "frivolous." Just because King didn't suffer financial loss doesn't mean she did not suffer harm as defined by the law, he wrote.
The judge criticized TWC for portraying itself as "an unwitting victim of an unpredictable statute which was not intended to turn 'what most people think of as an innocuous call to a wrong number' into large damages awards." While TWC argued that "damages would deter legitimate businesses from reaching out with useful information to customers that wish to be contacted," Hellerstein wrote that a "responsible company will reduce its exposure dramatically by taking proactive steps to mitigate damages, while its competitor, who unthinkingly robo-dials the same person hundreds of times over many months without pausing to wonder why it cannot reach him, cannot complain about much higher liability."
TWC had also wanted to delay the proceedings until the Federal Communications Commission submitted arguments on a similar but unrelated case. But the law and precedents were enough for Hellerstein to issue judgment in this case, and the FCC has made it clear it doesn't intend to make it easier for companies like TWC to evade robocalling laws.
In a set of rulings issued last month, the FCC closed some loopholes, strengthened consumer protections, and encouraged phone companies to adopt robocall-blocking technology. In its announcement, the FCC said that "reassigned numbers aren’t loopholes—if a phone number has been reassigned, companies must stop calling the number after one call."
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