For those not in the know, the TCPA afford minimum statutory damages of $500.00 for a 227(b) violation and damages of up to $500.00 for a 227(c) violation. But both provisions allow trebling of damages in the event of a “willful or knowing” violation of the statute.

Perhaps unsurprisingly there is a big difference of opinion in the courts as to what constitutes a knowing or willful violation of the statute. The majority rule is that the caller needs to know the material facts constituting the violation–i.e. that a call was made without consent. Some courts require a finding that the caller actually knew or intended to violate the TCPA while other courts find merely intentionally placing the call is sufficient.

In Koeller v. Seemplicity Security, 2024 WL 4751306 (E.D. Mo. Nov. 12, 2024) the Court walked through a very insightful grammar lesson before coming to the conclusion that the TCPA merely requires a willful or knowing decision to place calls to a number on the DNC list:

When read into section 64.1200(c)(2), “knowingly” and “willfully” modify a transitive verb—“initiated.” Ordinarily, a listener assumes that an adverb that modifies a transitive verb “tells the listener how the subject performed the entire action.” Flores Figueroa v. United States, 556 U.S. 646, 650 (2009). For example, “if a bank official says, ‘Smith knowingly transferred the funds to his brother’s account,’ ” listeners “would normally understand the bank official’s statement as telling [them] that Smith knew the account was his brother’s.” Id. That is because “once [knowingly] is understood to modify the object of [the] verb[ ], there is no reason to believe it does not extend to the phrase which limits that object.” Id. at 657 (Scalia, J., concurring in part and concurring in the judgment).

So too in the context of section 227(c)(5) and section 64.1200(c)(2). There, a listener would ordinarily understand, for example, that knowingly “initiated any telephone solicitation to:…[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry,” 47 C.F.R. § 64.1200(c)(2), means that a person knew that he initiated a telephone solicitation and knew that he was calling a residential telephone subscriber who had registered his or her telephone number on the national do-not-call registry.

Thus, to have “knowingly violated” section 64.1200(c)(2), a person or entity must have known that he or it initiated a phone call and that the call was to a residential telephone subscriber who had registered his or her telephone number on the national do-not call registry. And to have “willfully violated” section 64.1200(c)(2), a person or entity must have purposely initiated a phone call to a residential telephone subscriber who had registered his or her telephone number on the national do-not-call registry.

Interesting, no?

The Court goes on to conclude the complaint did not contain sufficient facts to demonstrate the caller knew the number that was being called was on the DNC list and struck the claim for treble damages.

Seemplicity wasn’t do lucky on the substantive claim, however. It moved to dismiss claiming the Plaintiff’s allegation of “personal residential usage” of the phone at issue was too conclusory. But the court disagreed concluding the allegation constituted a factual statement sufficient to meet a required element of the Plaintiff’s 227(c) claim.

So another useful data point as the battle over “wilfulness” carries on.