BENEDETTI v. CHARTER COMMUNICATIONS, INC. et al

Filing 51

OPINION and ORDER - Shannon Benedetti's amended complaint alleges that Charter Communications, Inc. violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, by calling her cell phone without her consent using an automatic telephone dialing system or a prerecorded voice. Charter moved for summary judgment. [Doc. No. 45 ]. For the following reasons, the court denies Charter's motion. (See Order.) Signed by Judge Robert L. Miller, Jr on 6/13/2018. (BRR)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SHANNON BENEDETTI,
PLAINTIFF
VS.

CHARTER COMMUNICATIONS, INC.,
DEFENDANT

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CAUSE NO. 1:16-CV-2083 RLM-DLP

OPINION and ORDER
Shannon

Benedetti’s

amended

complaint

alleges

that

Charter

Communications, Inc. violated the Telephone Consumer Protection Act (TCPA),
47 U.S.C. § 227, by calling her cell phone without her consent using an
automatic telephone dialing system or a prerecorded voice. Charter moved for
summary judgment. [Doc. No. 45]. For the following reasons, the court denies
Charter’s motion.
Viewing the facts as favorably as reasonably possible to Ms. Benedetti and
drawing all reasonable inferences in her favor, a jury could find the facts to be
these: When Ms. Benedetti worked as a live-in nanny for a Mr. Craig, who bought
cable and internet service from Charter Communications. The service was
spotty, so Ms. Benedetti often called Charter about outages, only to learn that
since she wasn’t on the account, she couldn’t work with Charter to troubleshoot
the problems. Troubleshooting had to wait from Mr. Craig to come home. Mr.
Craig told Ms. Benedetti that he called Charter to authorize Charter’s help desk

personnel to work with Ms. Benedetti on troubleshooting, and gave Charter her
cellphone number as part of the process.
Eventually, Mr. Craig either fell behind on or stopped his payments to
Charter. Ms. Benedetti began receiving telephone calls in which what seemed to
her to be a prerecorded voice said the calls were about Mr. Craig’s debt to
Charter. As directed by the voice, Ms. Benedetti would press “1” to speak to a
person, and explain that while the phone number was hers, the account was Mr.
Craig’s, and calls should be directed to him. The calls to Ms. Benedetti continued,
on some days as many as dozen calls. Ms. Benedetti isn’t sure how many calls
she got, but she estimates between as least 75 and at most 1,000.
With little more than that, Ms. Benedetti hopes to proceed to trial on her
claim against Charter for violating the Telephone Consumer Protection Act, 47
U.S.C. § 227. With no evidence of its own in this record, Charter says her
evidence wouldn’t allow her to prevail at trial, and seeks summary judgment.
As relevant here, the TCPA prohibits any person from making a call “using
any automatic telephone dialing system or an artificial or prerecorded voice . . .
to any telephone number assigned to a . . . cellular telephone service” absent the
recipient’s prior express consent. 47 U.S.C. § 227(b)(1)(A)(iii); Blow v. Bijora, Inc.,
855 F.3d 793, 798 (7th Cir. 2017). As the party opposing the summary judgment
motion, and who would have the burden of proof at trial, Ms. Benedetti can’t rest
on the allegations her the pleadings, but must “point to evidence that can be put
in admissible form at trial, and that, if believed by the fact-finder, could support
judgment in his favor.” Marr v. Bank of America, N,A., 662 F.3d 963, 966 (7th

Cir. 2011). Because the question at the summary judgment stage is whether a
trial is needed at all, the court construes the evidence and all inferences that
reasonably can be drawn from the evidence in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Charter bears no summary judgment burden beyond telling the court of the basis
for its motion, and pointing to evidence demonstrating the absence of any
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Charter argues that Ms. Benedetti can’t prove (a) that Charter made the
calls in question or (b) that any calls were made using an automatic telephone
dialing system or a prerecorded voice, and still can’t recover because (c) she
consented to receiving calls from Charter.
A jury drawing all reasonable inferences in Ms. Bendetti’s favor could find
that Charter was responsible for the calls. Charter is right that the caller’s
statement that the call was being made on Charter’s behalf is, without more,
hearsay when offered for the truth of the matter asserted. But authentication is
a different matter. Ms. Benedetti can use distinctive characteristics to prove the
calls were made on behalf of Charter, Fed. R. Evid. 901(b)(4), such as the selfidentification, calls from a number associated with Charter, and the subject
matter of the calls. Evidence presented at trial is likely to differ in some respects,
but on this record, the authentication evidence is sufficient to allow the jury to
find that these calls were placed by or on behalf of Charter.
Charter is correct that Ms. Benedetti doesn’t have evidence to show that
any of the calls was made by using an automatic telephone dialing system. But

the summary judgment evidence would allow a reasonable jury to find that
Charter used a prerecorded voice on the calls. Ms. Benedetti’s opinion testimony
on that point doesn’t rely on what was said by a prerecorded voice; it’s based on
her familiarity with the calls.
Charter claims entitlement to summary judgment because Ms. Benedetti
consented to the calls. A call that would otherwise violate the TCPA is lawful if
the recipient provides express consent, but consent “is an affirmative defense on
which the defendant bears the burden of proof.” Blow v. Bijora, Inc., 855 F.3d at
803. The calls in question must be “reasonably related to the purpose for which
she provided her cell phone number.” Id. at 804. Charter argues that Ms.
Benedetti consented to calls because she agreed to have her number on the
account to address issues with the account. Ms. Benedetti argues that she only
told Charter, via Mr. Craig, that she wanted to be permitted to speak to Charter
regarding troubleshooting issues and didn’t authorize the release of her cell
phone number, much less authorize Charter to call her regarding debt collection.
Ms. Benedetti testified as to what she asked Mr. Craig to do and what Mr.
Craig told her he had done, but the summary judgment record contains nothing
regarding what Mr. Craig actually said to Charter about the use to which Ms.
Benedetti’s name and cell phone number might be put. This is an affirmative
defense on which Charter bears the burden of proof at trial, so Charter must
point to evidence that would allow the jury to find, by a preponderance of the
evidence, that Ms. Benedetti authorized the use of her number for calls relating
to late or missing payments, as well as for “troubleshooting,” which is the extent

of Ms. Benedetti’s testimony. Charter isn’t entitled to judgment as a matter of
law on its consent defense.
A jury that believes Ms. Benedetti’s testimony and draws all reasonable
inferences in her favor could find for her on her TCPA claim. Charter is right that
no jury could find that it used automatic dialing, but that it only one method of
proving a TCPA claim, as opposed to a separate claim. That issue in better
addressed through the pretrial order than through partial summary judgment.
Based on the foregoing, the court DENIES the defendant’s motion for
summary judgment [Doc. No. 45].
SO ORDERED.
ENTERED:

June 13, 2018
/s/ Robert L. Miller, Jr.
Judge, United States District Court

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registered counsel of record via ECF.