New Class of TCPA Damages or An Aberration!? Court Holds Defendant Liable For Failure to Produce Internal DNC Policy “Upon Demand”

Congress enacted the TCPA because it “was broadly concerned about intrusive telemarketing practices.”  Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 11729 (2021).  And the statute allows $500 in damages for any “violation” of “the regulations prescribed” under the TCPA.  47 U.S.C.  227(c)(5).  But Plaintiffs often do not recover for some violations of TCPA regulations.  One example is 47 C.F.R. 64.1200(d), which requires companies making automated calls to keep a written policy, available upon demand, for maintaining a do-not-call list.

But that may be changing.  At least one Court has now awarded damages for a company’s failure to produce a written policy “upon demand.”  See Perrong v. All Star Chimney Solutions, Inc., 2021 U.S. Dist. LEXIS 106538, *3 (D. Mass. June 7, 2021).  In that case, Mr. Perrong sued after receiving four automated phone calls from defendant despite his phone numbers appearing on the national do-not-call registry.  Id. He also claimed that the defendant “did not have a written policy, available on demand, pertaining to do-not-call requests. Id. at *4.

After the defendant failed to answer the complaint, Mr. Perrong obtained a default judgment. Taking the allegations as true, the Court awarded Mr. Perrong $500 for each call.  Id. at *4.  However, the Court declined to award Mr. Perrong an additional $500 for each call based on the defendant’s lack of a do-not-call policy.  Rather, the Court held “that the failure to maintain a written policy, available on demand, pertaining to do-not-call requests” constituted only “one violation.” Id. So the Court awarded $500–not the  $2,000 Mr. Perrong requested.

In this case, the defendant’s failure to produce a policy “on demand” only cost the company $500. However, companies should not be lulled into complacency. The potential exposure for not having a policy is exponentially higher.  Consider a class action with hundreds or thousands of plaintiffs.  There, applying the Court’s analysis in this case, a company without a policy could face $500 in liability for each putative plaintiff.  This is a multimillion-dollar risk.  This case provides another compelling reason to talk to a TCPA expert about developing an internal policy.

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