iThe standard for willfulness under the TCPA continues to be in some flux.
As readers of TCPAWorld know well, damages for violating the TCPA are fixed at up to $500.00, depending on the provision violated, but can be trebled in the event of a “willful” or “knowing” violation.
Courts continue to split on what is required for a willful or knowing violation. At one extreme are courts that hold only acts a caller knows violates the TCPA will trigger an enhancement. At the other are courts that hold any willful decision to make a call that turns out to violate the TCPA may result in a punitive trebling.
In my view both of these lines of cases is wrong. The truth–as is so often the case these days–is between the extremes. Specifically, a caller has “knowingly and willfully” violated the TCPA when they make calls despite knowing of facts that make their calls a violation of the law; e.g. they make calls using an ATDS despite knowledge of a lack of consent. That the caller did not know the calls were illegal is irrelevant. But that the caller knew of the basic factual predicates that made the calls illegal is essential.
But that’s just one humble lawyers viewpoint. Correct though it undoubtedly is.
Ahem.
Adding one more data point to the map here, in Ford v. Naturalawn of America, Inc. 2024 WL 3161762 (D. Md. June 25, 2024) the Court held willfulness can be found wherever a company demonstrates “conscious disregard for compliance with the law”:
Ford’s Amended Complaint avers that, despite receiving her opt-out requests, NaturaLawn “continued to text message” and “harass [her] … into making purchases.” ECF No. 14 ¶ 44. She provides screenshots of five text communications wherein she tells the company to “STOP” contacting her, after which NaturaLawn apparently sent her confirmation messages stating that her opt-out requests “block[ed] all texts sent from this number.” ECF No. 14 ¶ 8. Those repeated messages, paired with NaturaLawn’s supposed acknowledgment of Ford’s opt-out requests, lends plausibility to the conclusion that the company acted with conscious disregard for compliance with the law. Accordingly, Ford has stated a claim for treble damages under the TCPA.
Tough to disagree with.
Not sure the “concious disregard” standard is really any different than the “knowledge of facts” standard, at least not in this context. Under either standard ignoring a DNC request will result in a potential willfulness finding, and ultimately that’s the point–failing to honor DNC requests (especially repeated requests) will land you in the boiling hot water of $1,500.00 per call violations.
Obviously most companies do not intentionally ignore DNC requests, but the revocation rules are very tricky now and nowhere near as intuitive as they once were.
