Moore v. Dish Network, LLC

Filing 137

MEMORANDUM OPINION AND ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT granting in part 107 Plaintiff Chester Moores Renewed Motion for Partial Summary Ju dgment and granting in part 108 Defendant DISH Network L.L.C.s Motion for Summary Judgment. The Court ENTERS judgment in the Plaintiffs favor in the amount of $22,500. No issues remain in dispute between the parties, the Court DISMISSES this action WITH PREJUDICE. The Court further ORDERS that this case be STRICKEN from this Courts active docket. Signed by District Judge Gina M. Groh on 10/15/2014. (cwm)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
CHESTER MOORE,
Plaintiff,
v.

CIVIL ACTION NO.: 3:13-CV-36
(JUDGE GROH)

DISH NETWORK L.L.C.,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING IN PART PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Currently pending before the Court are Plaintiff Chester Moore’s Renewed Motion
for Partial Summary Judgment [ECF 107] and Defendant DISH Network L.L.C.’s Motion for
Summary Judgment [ECF 108]. For the following reasons, the Court GRANTS IN PART
Moore’s Renewed Motion for Partial Summary Judgment and GRANTS IN PART DISH’s
Motion for Summary Judgment.
I. Background
A.

Facts

On December 19, 2011, Chester Moore signed an application with Cintex wireless
for a cell phone subsidized by the federal Lifeline program. At the time of his application,
Moore had a cell phone with another service provider through that program. The Lifeline
program provides low-income consumers with subsidized cell phone service. See  47
C.F.R. § 54.401. To qualify for this program, “a consumer must not already be receiving

a Lifeline service.” Id. § 54.409(c). In response to his application, Cintex provided Moore
with a cell phone with a number ending in 2882.
Moore claims that, after he received the Cintex cell phone, DISH Network L.L.C.
called the 2882 number multiple times between January 2012 through August 2012 from
numbers ending in 8047 and/or 8290. Am. Compl. ¶ 14. Moore has never been a DISH
customer.
DISH admits that it called the 2882 number thirty-one times regarding a customer’s
past due account from the 8047 number. Specifically, it is undisputed that DISH made the
following thirty-one phone calls to the 2882 number:
1.

1/8/12 at 2:49 p.m.

2.

1/10/12 at 11:17 a.m.

3.

1/14/12 at 3:23 p.m.

4.

1/26/12 at 1:51 p.m.

5.

1/28/12 at 10:42 a.m.

6.

1/29/12 at 3:58 p.m.

7.

1/31/12 at 1:43 p.m.

8.

2/8/12 at 3:00 p.m.

9.

2/10/12 at 3:34 p.m.

10.

2/10/12 at 3:35 p.m.

11.

2/14/12 at 12:46 p.m.

12.

2/15/12 at 12:42 p.m.

13.

2/16/12 at 11:12 a.m.

14.

2/18/12 at 3:56 p.m.
2

15.

2/24/12 at 6:30 p.m.

16.

2/25/12 at 10:49 a.m.

17.

3/6/12 at 1:20 p.m.

18.

3/6/12 at 5:25 p.m.

19.

3/12/12 at 3:35 p.m.

20.

3/20/12 at 3:19 p.m.

21.

3/26/12 at 11:42 a.m.

22.

5/29/12 at 12:11 p.m.

23.

6/4/12 at 9:43 a.m.

24.

6/10/12 at 9:31 a.m.

25.

6/16/12 at 8:33 a.m.

26.

6/22/12 at 8:41 a.m.

27.

6/28/12 at 9:52 a.m.

28.

7/5/12 at 11:33 a.m.

29.

7/11/12 at 12:51 p.m.

30.

7/17/12 at 12:22 p.m.

31.

7/23/12 at 8:34 p.m.

DISH made these calls using a Cisco UCCE Outbound Option, Version 8.5.4 dialer (“Cisco
Dialer”). A prerecorded message was played on all calls except for calls 1, 4 through 7, 11
through 18, 20, and 21 because those calls were not met with a positive voice (i.e., no one
answered the call).
During the period in which these calls occurred, Moore called DISH several times
and informed DISH that it was calling the wrong number and asked DISH to stop calling the
3

2882 number. On June 11, 2012, in response to one of these calls, DISH added the 2882
number to its do-not-call list. Pl.’s Notice of Filing, Oct. 29, 2013, ECF 48-7 at 8.
Additionally, DISH’s notes for the account underlying the phone calls reflect that Moore
called DISH on June 22, 2012, July 12, 2012, and July 19, 2012 concerning the calls to
the 2882 number. Specifically, these notes read: (1) June 22 - “added [the 2882 number]
to the internal DNC list”; (2) July 12 - “stated Chester (not a DISH customer) called and
stated that he was getting calls to his phone [the 2882 number]”; and (3) July 19 - “Mr
Chester Moore, upset w/ calls on cell phn, says contact 4 months, phn # no longer
belongs.” Pl.’s Notice of Filing, Oct. 29, 2013, ECF 48-5 at 47-48 (capitalization omitted).
B.

Procedural History

On March 22, 2013, Moore filed a complaint raising the single claim that DISH
violated the Telephone Consumer Protection Act (“TCPA”) each time it called the 2882
number. On October 29, 2013, Moore moved for partial summary judgment, seeking a
finding that DISH is liable for the thirty-one calls it made to the 2882 number. DISH moved
for the Court to defer consideration of this motion or deny it, arguing that more time was
needed for discovery. The Court denied Moore’s motion pursuant to Federal Rule of Civil
Procedure 56(d) because DISH did not have adequate time to conduct discovery to oppose
the motion.
Additionally, Moore moved to amend his complaint to add The CBE Group, Inc., a
third-party collection agent, as a party because he discovered it called the 2882 number
concerning the past due DISH account. The Court granted this motion. Moore later
voluntarily dismissed The CBE Group, Inc. from this matter.

4

On August 14, 2014, Moore filed a Renewed Motion for Partial Summary Judgment.
Moore again argues he is entitled to summary judgment as to the thirty-one phone calls
that DISH admits it made to the 2882 number. He seeks a finding that DISH is liable for
these calls and an award of statutory damages. On August 15, 2014, DISH filed a Motion
for Summary Judgment, arguing that it is not liable for the thirty-one calls or any additional
calls made to the 2882 number.
II. Standard of Review
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A
genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, the Court must conduct “the threshold inquiry of determining whether there is the
need for a trial–whether, in other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be resolved in favor
of either party.” Id. at 250.
The party opposing summary judgment “must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). That is, once the movant has met its burden to
show an absence of material fact, the party opposing summary judgment must then come
forward with affidavits or other evidence demonstrating there is indeed a genuine issue for
trial. Fed. R. Civ. P. 56; Celotex Corp., 477 U.S. at 323-25; Anderson, 477 U.S. at 248.
5

“If the evidence is merely colorable, or is not significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at 249 (citations omitted). A motion for summary
judgment should be denied “if the evidence is such that conflicting inferences may be
drawn therefrom, or if reasonable men might reach different conclusions.” Phoenix Savs.
& Loan, Inc. v. Aetna Cas. & Sur. Co., 381 F.2d 245, 249 (4th Cir. 1967); see also id. at
253 (noting that “[c]redibility determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions, not those of a judge”).
III. Discussion
The TCPA prohibits the making of a call to a cell phone in the following
circumstances:
It shall be unlawful for any person within the United States, or any person
outside the United States if the recipient is within the United States–
(A) to make any call (other than a call made for emergency purposes
or made with the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or prerecorded
voice–
...
(iii) to any telephone number assigned to a paging service,
cellular telephone service, specialized mobile radio service, or
other radio common carrier service, or any service for which
the called party is charged for the call . . . .
47 U.S.C. § 227(b)(1)(A)(iii). “A person or entity” can bring a claim to recover the greater
of actual damages or $500 for a violation of § 227(b)(1)(A)(iii). Id. § 227(b)(3). A court
may award treble damages for a willful or knowing violation. Id.
Moore requests that the Court find DISH liable for the thirty-one calls that DISH
admits it made to the 2882 number and award him damages in the amount of $500 for calls
1 through 24 and treble damages for calls 25 through 31.
6

DISH argues that it is not liable for these calls, but does not dispute Moore’s
requested damages should the Court find liability. In contesting liability, DISH makes the
following arguments that relate to all thirty-one calls: (1) Moore cannot recover because he
violated the Lifeline program when obtaining the cell phone underlying this case; (2) Moore
cannot recover because he was not charged for the calls; and (3) Moore lacks statutory
standing because he is not the “called party” referenced in the TCPA. Next, DISH argues
it is entitled to summary judgment as to calls 1, 4 through 7, 11 through 18, 20, and 21
because it did not make them using an automatic telephone dialing system (“ATDS”) or an
artificial or prerecorded voice. Then, DISH contends Moore cannot recover for calls 30 and
31 because he lacks Article III and statutory standing. Finally, DISH argues that, to the
extent Moore seeks to recover for calls made from the 8290 number or any calls in addition
to those DISH has admitted, Moore cannot do so because there is no evidence connecting
DISH to the 8290 number or any other calls. These arguments, except that concerning
liability for additional calls, all present issues of first impression in the Fourth Circuit.
A.

Whether Moore Cannot Recover Because He Violated the Lifeline
Program

DISH argues the Court should preclude Moore from recovering under the TCPA on
the ground that he should not profit from a wrongful act—i.e., his possession of the Cintex
cell phone in violation of the Lifeline program. The plain language of the TCPA does not
exempt calls made to a cell phone that an individual obtained through a wrongful act. See
47 U.S.C. § 227(b)(1)(A)(iii). DISH also does not cite any case where a court has
dismissed a claim on such a basis. Acknowledging that this defense has no basis in the
TCPA or case law concerning the TCPA, DISH urges that the Court should preclude Moore
from recovering as a matter of public policy because, but for Moore’s violation of the
7

Lifeline program, DISH would not have called him. In making this argument, DISH relies
on five cases—Snyder v. PNC Bank, NA, Civil Action No. 3:12-cv-2, 2013 WL 1089877
(E.D. Tenn. Mar. 15, 2013), Audiology Distribution, LLC v. Hawkins, Civil Action No.
5:13cv154, 2013 WL 6583849 (N.D.W. Va. Dec. 16, 2013), Metrix Warehouse, Inc. v.
Daimler-Benz Aktiengesellschaft, 828 F.2d 1033 (4th Cir. 1987), Prudential Insurance Co.
of America v. Tull, 690 F.2d 848 (4th Cir. 1982), and Glus v. Brooklyn Eastern District
Terminal, 359 U.S. 231 (1959). Moore contends that all of these cases are distinguishable.
The Court agrees and therefore declines to create an exception to TCPA liability.
First considering Snyder, that case is not binding on this Court and, regardless, is
not persuasive. Snyder involved a dispute over a debt owed by a credit and checking
account holder to PNC Bank. 2013 WL 1089877, at *1. The account holder sued PNC,
alleging it breached a contract to allow her to repay the debt on a certain payment plan.
Id. at *1-2. There was an issue, however, concerning whether the account holder breached
that agreement because, at a certain point, she had insufficient funds to make payments
under the plan. Id. at *4-5. The account holder argued that the court should excuse her
breach because PNC’s debiting of her account in contravention of the terms of their
agreement caused her to lack sufficient funds to make payments. Id. at *4. In addressing
that defense, the court stated that “one of the most fundamental maxims underpinning law
is that one ought not be permitted to profit from their own wrongs” and reviewed various
contexts in which courts have applied that maxim. Id. The court then found that the
account holder’s breach was excusable because it “was no fault of her own but initiated by
allegedly surreptitious behavior” of PNC. Id. at *5. In contrast, here, Moore’s act of
obtaining a second cell phone through the Lifeline program, though wrongful, did not cause
8

DISH to commit the wrongful act of violating the TCPA.

Thus, Snyder rests on a

principle—that one party’s wrongful act directly brought about the wrongful act of the other
party—that does not apply in this case.
Audiology Distributions also is not binding authority and dealt with a situation distinct
from this case. In Audiology Distributions, HearUSA hired the defendant as an audiologist.
2013 WL 6583849, at *1-2. The audiologist signed an employment agreement that
contained a covenant prohibiting her from competing with HearUSA within ten miles of
where she provided services for HearUSA. Id. at *1. Despite this agreement, the
audiologist left HearUSA, opened her own audiology business less than three miles from
a HearUSA location, and solicited several HearUSA patients. Id. at *2. HearUSA filed suit,
seeking, among other things, a preliminary injunction to enjoin the audiologist from
competing during the pendency of the case. Id. at *1. In considering whether an injunction
would be in the public’s interest (one of the factors relevant to the analysis), the district
court noted that “the public certainly has an interest in enforcing valid contracts and
ensuring that [the audiologist] does not profit from her own wrongdoing” and balanced that
interest against the lack of a sufficient showing of irreparable harm to HearUSA. Id. at *6.
In essence, Audiology Distribution involved a situation where one party’s conduct (the
audiologist’s) was the direct cause of the harm underlying the lawsuit—the violation of a
non-compete covenant. That is not the case here because Moore’s wrongful act did not
cause any harm to DISH. Indeed, it is DISH’s alleged violations of the TCPA that directly
led to this lawsuit. Thus, Audiology Distribution is not persuasive.

9

Turning to Metrix Warehouse, DISH relies on a portion of this case where the Fourth
Circuit reviewed a district court’s decision to set aside a jury’s award of damages in an
antitrust action. See 828 F.2d at 1042-43. In doing so, the Fourth Circuit stated that “a
wrongdoing defendant should not profit at the expense of his victim where it is his own
anticompetitive conduct that precludes direct and specific proof of damage.” Id. at 1043
(citations omitted). This principle does not translate to this case because DISH is not a
“victim” of Moore’s wrongful act. Indeed, it is DISH’s alleged violations of the TCPA that
are the wrongs giving rise to this case. If anyone, those who funded the Lifeline program
are the victims of Moore’s actions. Thus, this case also does not support DISH’s argument.
The same is true for Prudential Insurance Co. In that case, a woman who was
convicted of murdering her husband appealed from a judgment awarding the proceeds of
her husband’s life insurance policy to her stepchildren. Prudential Insurance Co., 690 F.2d
at 848. The Fourth Circuit affirmed the decision, stating that “[f]ederal law recognizes that
the beneficiary’s claim is barred by the equitable defense: ‘No person should be permitted
to profit from his own wrong.’” Id. at 849. The woman therefore could not recover because
her act of murdering her husband triggered the availability of the life insurance proceeds.
Unlike the “murdering heir,” however, it cannot be said that Moore took the wrongful act of
obtaining the Cintex phone for the purpose of recovering under the TCPA. Indeed, DISH’s
calls to the 2882 number brought about this matter, not Moore’s violation of the Lifeline
program. The policy underlying Prudential Insurance Co. therefore does not translate to
this case.
Finally, in Glus, the Supreme Court held that estoppel was a defense to the statute
of limitations applicable to the plaintiff’s claim under the Federal Employers’ Liability Act.
10

See 359 U.S. at 231-35. The plaintiff alleged that the defendant had induced him to file suit
late by representing that he had seven years to do so. Id. at 231-32. The Supreme Court
held the lower court erred by dismissing the case as untimely because the plaintiff could
proceed if he could prove that the defendant’s agents “conducted themselves in such a way
that [he] was justifiably misled into a good-faith belief that he could begin his action at any
time within seven years after it had accrued.” Id. at 235. In reaching this conclusion, the
Supreme Court drew on “the maxim that no man may take advantage of his own wrong.”
Id. at 232. Glus, however, applied that maxim in a situation where the defendant’s
wrongdoing, if proven, was the direct cause of the plaintiff’s harm–the untimely nature of
his claim. See id. at 231-35. Here, in contrast, Moore’s wrongful act did not cause DISH
any harm. DISH’s alleged violations of the TCPA are the harm at issue in this case, and
DISH made the phone calls that allegedly caused those violations independently of Moore’s
violation of the Lifeline program. Thus, this case also does not support DISH’s position.
In sum, DISH’s public policy defense has no basis in the TCPA and all of the cases
that DISH relies on for this defense applied the general principle that an individual should
not profit from his wrongful acts in circumstances that are distinguishable from this case.
Accordingly, the Court rejects DISH’s argument that Moore’s violation of the Lifeline
program precludes him from recovering for DISH’s independent violations of the TCPA.
B.

Whether Moore Must Have Been Charged for the Calls to Recover

Next, DISH contends that Moore cannot recover because the TCPA requires that
he be charged for the calls made to the 2882 number. Moore does not dispute that he was
not charged for any of the calls or the cell phone, but counters that the TCPA’s terms do
not impose this requirement.
11

The TCPA applies to calls made “to any telephone number assigned to a paging
service, cellular telephone service, specialized mobile radio service, or other radio common
carrier service, or any service for which the called party is charged for the call.” 47 U.S.C.
§ 227(b)(1)(A)(iii) (emphasis added). DISH argues that the phrase “for which the called
party is charged for the call” modifies all services listed, thereby requiring that Moore be
charged for each call. Moore avers that, under the rule of last antecedent, the charge
requirement does not apply to calls made to cell phones.
The “rule of last antecedent” provides that “a limiting clause or phrase . . . should
ordinarily be read as modifying only the noun or phrase that it immediately follows.” United
States v. Hayes, 555 U.S. 415, 425 (2009). Applying this rule, “for which the called party
is charged for the call” modifies only “any service.” Page v. Regions Bank, 917 F. Supp.
2d 1214, 1220 (N.D. Ala. 2012); see also Gutierrez v. Barclays Grp., Civil Action No.
10CV1012 DMS BGS, 2011 WL 579238, at *5 (S.D. Cal. Feb. 9, 2011). Numerous other
courts have interpreted the phrase “for which the called party is charged for the call” in this
manner. See Osorio v. State Farm Bank, 746 F.3d 1242, 1257-58 (11th Cir. 2014)
(analyzing § 227(b)(1)(A)(iii) under the rule of last antecedent and other canons of statutory
interpretation to hold that plaintiff was “not required to prove that he was charged
individually for each” call); Manno v. Healthcare Revenue Recovery Grp., 289 F.R.D. 674,
683 (S.D. Fla. 2013) (holding “the TCPA does not require the plaintiff to be ‘charged for’ the
calls in order to have standing to sue”); Page, 917 F. Supp. 2d at 1220 (applying the rule
of last antecedent to find “charged for the call” only applied to “any service”); Gutierrez,
2011 WL 579238, at *5-6 (same); Buslepp v. Improv Miami, Inc., Civil Action No. 12-60171-

12

CIV, 2012 WL 1560408, at *2 (S.D. Fla. May 4, 2012) (rejecting argument that plaintiff
needed to prove he was charged for each call to his cell phone to recover under TCPA).
DISH points out that Knutson v. Reply!, Inc., Civil Action No. 10–CV–1267, 2011 WL
291076 (S.D. Cal. Jan. 27, 2011) and Moriarty v. Nationstar Mortgage, LLC, Civil Action
No. 1:13-cv-855, 2013 WL 335448 (E.D. Cal. July 3, 2013) required that a plaintiff show he
was charged for the call to recover for a violation of § 227(b)(1)(A)(iii) . In Knutson, the
court stated that the TCPA requires a plaintiff to establish “that [d]efendant made the call;
[p]laintiff was charged for the call; and the call was made using any automatic telephone
dialing system or an artificial or prerecorded voice.” 2011 WL 291076, at *1. The Knutson
court, however, did not explain why it interpreted the TCPA as requiring that a plaintiff be
charged for the call or otherwise analyze the statute. Id. The same is true for Moriarty.
Moriarty directly quoted Knutson for the proposition that a plaintiff must prove she was
charged for the call. Moriarty, 2013 WL 335448, at *7. The Moriarty court did not analyze
the TCPA or explain why it adopted Knutson’s statement of the elements of a TCPA claim.
Id. These cases are unpersuasive because a careful analysis of the TCPA–which was not
done in Knutson and Moriarty–reveals no requirement that Moore be charged for a call to
recover. Accordingly, the Court holds that Moore need not prove that he was charged for
each call or the cell phone to establish DISH’s liability for violating § 227(b)(1)(A)(iii).
C.

Whether Moore Lacks Statutory Standing Because He Is Not the “Called
Party”

DISH argues that Moore lacks statutory standing on two grounds. First, DISH avers
that only the intended recipient of its calls, the DISH account holder, is the “called party”
referenced in § 227(b)(1) and therefore the only person with standing to sue under the
TCPA for the calls. Alternatively, DISH maintains that, to have standing, Moore must be
13

the regular user and carrier of the cell phone. DISH argues Moore would not fall under this
definition, alleging he testified in his deposition that he used the 2882 number only when
he ran over minutes on his other cell phone and that his daughter and granddaughter used
the cell phone as well.
The Fourth Circuit has not considered who has standing to sue for a violation of
§ 227(b)(1)(A)(iii). Statutory standing “concerns whether a statute creating a private right
of action authorizes a particular plaintiff to avail herself of that right of action.” CGM, LLC
v. BellSouth Telecomm., Inc., 664 F.3d 46, 52 (4th Cir. 2011) (citation and quotation marks
omitted). When considering whether Moore has statutory standing, the Court considers
whether he “is a member of the class given authority by [the TCPA] to bring suit.” Id.
(citation and quotation marks omitted).

This “task is essentially one of statutory

construction.” Id. (citation and quotation marks omitted). “Normally, where the statutory
language provides a clear answer, [the] analysis begins and ends with that language.” Id.
at 53 (citation and quotation marks omitted).
Considering the plain language of the TCPA, the terms of the statute do not limit
standing to the “called party.” The TCPA simply states that “a person or entity” can bring
such a claim. 47 U.S.C. § 227(b)(3). This provision therefore covers Moore as the
undisputed subscriber of the 2882 number. Indeed, numerous courts that have considered
the TCPA’s standing provision have concluded that it allows any person to sue, not just the
“called party.” See Manno, 289 F.R.D. at 682 (“[T]he standing provision of the TCPA is
quite broad in that any ‘person or entity’ injured by a violation of the statute may seek
redress . . . .”); Swope v. Credit Mgmt., LP, Civil Action No. 4:12CV832, 2013 WL 607830,
at *3 (E.D. Mo. Feb. 19, 2013) (“By its plain language, the TCPA grants standing to any
14

‘person or entity.’”); Page, 917 F. Supp. 2d at 1217 (rejecting argument that only “called
party” has standing after finding “no limitation in the text of the statute to indicate that only
a ‘called party’ may assert a TCPA claim”); Harris v. World Fin. Network Nat’l Bank, 867
F. Supp. 2d 888, 894 (E.D. Mich. 2012) (“[T]he TCPA . . . plainly grants standing to ‘any
person or entity’ . . . .”); Kane v. Nat’l Action Fin. Servs., Inc., Civil Action No. 11-cv-11505,
2011 WL 6018403, at *7 (E.D. Mich. Nov. 7, 2011) (same); D.G. ex rel. Tang v. William W.
Siegel & Assocs., Attorneys at Law, LLC, 791 F. Supp. 2d 622, 624-25 (N.D. Ill. 2011)
(same and rejecting argument that consent exception to § 227(b)(1)(A)(iii) liability limited
standing to “called party”). Courts have also recognized that a person’s status as the
subscriber of the phone at issue grants him standing under this broad standing provision.
See Fillichio v. M.R.S. Assocs., Inc., Civil Action No. 09-61629-CIV, 2010 WL 4261442, at
*2 (S.D. Fla. Oct. 19, 2010) (granting summary judgment for cell phone account holder);
Gutierrez, 2011 WL 579238, at *5 (finding “it is the [telephone] subscriber who has standing
to sue for violations of the TCPA”). Accordingly, Moore has standing to sue under the
TCPA because he is the subscriber of the cell phone at issue. The Court does not opine
as to which, if any, other types of relationships to a cell phone give rise to standing under
the TCPA.
Even if only the “called party” had standing under the TCPA, the plain terms of
§ 227(b)(1)(A)(iii) do not support DISH's argument that the called party is limited to the
intended recipient of its calls. No portion of § 227 states that only the intended recipient
of a call can recover under it. Neither “intended recipient” nor a similar term appear
anywhere in § 227. See Soppet v. Enhanced Recovery Co., 679 F.3d 637, 640 (7th Cir.
2012) (“The phrase ‘intended recipient’ does not appear anywhere in § 227, so what
15

justification could there be for equating ‘called party’ with ‘intended recipient of the call’?”).
In fact, the one location where “recipient” appears in this provision indicates that any
recipient (not just the intended recipient) can recover.

“[R]ecipient” appears in the

introductory language of § 227(b)(1)(A)(iii) as follows: “It shall be unlawful for any person
within the United States, or any person outside the United States if the recipient is within
the United States.” 47 U.S.C. § 227(b)(1) (emphasis added). Congress did not qualify
“recipient” in any way when describing how liability attaches under the TCPA, let alone add
the additional requirement that the recipient be the intended recipient from the caller’s
perspective. Further, the instances where “called party” appears in § 227(b)(1)(A)(iii) are
not reasonably subject to the restrictive reading DISH urges. First, § 227(b)(1)(A) provides
that a call made to a cell phone is exempt from liability when it is made “with the prior
express consent of the called party.” This provision references the “called party” a second
time by explaining that liability attaches for calls made to a number assigned to “a paging
service, cellular telephone service, specialized mobile radio service, or other radio common
carrier service, or any service for which the called party is charged for the call.” Id.
§ 227(b)(1)(A)(iii). Logically reading “called party” in these contexts, the individual called
could be DISH's customer, but it could also be an unintended recipient, like Moore. See
Soppet, 679 F.3d at 639-40 (analyzing each instance of “called party” in the TCPA and
finding no support for interpreting it as limited to the intended recipient). The TCPA
therefore contains no language indicating that one must be the individual the caller
intended to reach to sue under it. A vast majority of the courts that have addressed this
issue have interpreted “called party” in this manner and allowed unintended recipients of
calls, like Moore, to recover for violations of § 227(b)(1)(A)(iii). Osorio, 746 F.3d at 1250-52
16

(rejecting contention “that the ‘intended recipient’ is the ‘called party’ referred to in 47
U.S.C. § 227(b)(1)(A)”); id. at 643 (same and holding “‘called party’ . . . means the person
subscribing to the called number at the time the call is made”); Paradise v. Commonwealth
Fin. Sys., Inc., Civil Action No. 3:13-CV-00001, 2014 WL 4717966, at *3 (M.D. Pa. Sept.
22, 2014) (holding “called party” does not mean the intended recipient); Fini v. DISH
Network L.L.C., 955 F. Supp. 2d 1288, 1296 (M.D. Fla 2013) (concluding “that possessing
standing as a ‘called party’ . . . does not require the plaintiff to have been the intended
recipient of the call”); Manno, 289 F.R.D. at 682; Page, 917 F. Supp. 2d at 1219; Breslow
v. Wells Fargo Bank, N.A., 857 F. Supp. 2d 1316, 1322 (S.D. Fla. 2012) (finding “called
party” was the actual, not intended, recipient of calls). Accordingly, the Court joins those
courts and rejects DISH's argument that the “called party” referenced in the TCPA limits
standing to only the intended recipient of its calls because it has no support in the statute’s
plain terms.
Turning to DISH’s contention that Moore must be the cell phone’s regular user and
carrier in addition to its subscriber to recover, no such requirement appears in the TCPA.
As noted, Moore, as the undisputed subscriber of the 2882 number, fits into the TCPA’s
broad standing provision. See 47 U.S.C. § 227(b)(3). While several district courts have
found that a cell phone’s regular user and carrier can recover under the TCPA, that
generally occurs in cases finding that a plaintiff had standing even though he or she was
not the subscriber, something that is not an issue in this case. See Olney v. Progressive
Cas. Ins. Co., __ F. Supp. 2d __, 2014 WL 294498, at *5 (S.D. Cal. 2014) (holding “that the
regular user of a cellular telephone has standing to bring a claim under the TCPA,
regardless of whether he is responsible for paying the bill”); Fini, 955 F. Supp. 2d at 1296
17

(holding plaintiff, who was not subscriber, had TCPA standing “because she is the regular
user and carrier of the phone”); Agne v. Papa John’s Int’l, Inc., 286 F.R.D. 559, 565 (W.D.
Wash. 2012) (finding authorized user of shared cellular plan had standing under TCPA);
Page, 917 F. Supp. 2d at 1219 (holding plaintiff had TCPA standing even though number
was registered in someone else’s name because he was the cell phone’s “regular user and
carrier”). Indeed, that was true in the very case that DISH relies on for its argument that
Moore must be the phone’s regular user and carrier, Fini v. DISH Network L.L.C. In Fini,
the regular user of a cell phone that was registered in her husband’s name sued DISH for
violations of § 227(b)(1)(A)(iii). 955 F. Supp. 2d at 1290. DISH argued in that case that the
plaintiff lacked statutory standing because the phrase “called party” limited standing to the
subscriber. Id. at 1296. The Fini court declined to adopt this narrow view, instead holding
(without opining as to whether it would otherwise be necessary for the plaintiff to be a
subscriber to have standing) that the plaintiff had “standing because she [was] the regular
user and carrier of the phone.” Id. In doing so, the court reasoned:
Defendant offers the Black’s Law definition of subscriber, confining the term
to an individual “who enters into ‘[a]n oral or a written agreement to contribute
a sum of money or property, gratuitously or with consideration, to a specific
person or for a specific purpose.’” However, none of the cases cited by
Defendant in support of its argument construe the term “subscriber” so
narrowly. Gutierrez v. Barclays Group is the only case to base its holding on
the plaintiff’s status as a subscriber, and that case failed to define the term
at all in the scant two sentences it devoted to the issue. No. 10cv1012 DMS
(BGS), 2011 WL 579238, at *5 (S.D. Cal. Feb. 9, 2011).
Other cases cited by Defendant define “subscriber” more broadly and in a
fashion that would encompass Plaintiff: “this Court finds that Plaintiff was the
called party because [the defendant] intended to call Plaintiff's cellular
telephone number and Plaintiff is the regular user and carrier of the phone.”
D.G. ex rel. Tang v. William W. Siegel & Assocs., Attorneys at Law, LLC, 791
F. Supp. 2d 622, 625 (N.D. Ill. 2011) (emphasis added); see also Swope,
2013 WL 607830 at *3 (adopting definition from D.G. ex rel. Tang); Page,
917 F.Supp.2d at 1219-20 (same); Tang v. Medical Recovery Specialists,
18

LLC, No. 11 C 2109, 2011 WL 6019221, at *2 (N.D. Ill. July 7, 2011) (same).
Given the plethora of contractual arrangements available to wireless
customers, it is not surprising that so many courts would adopt the practical
definition advocated by Plaintiff.
Id. (internal citation omitted). Thus, Fini stands only for the proposition that a regular user
and carrier of a cell phone who is not the subscriber has standing under the TCPA.
Accordingly, the Court rejects DISH’s argument that Moore must be the regular user and
carrier of the 2882 number because his status as the subscriber of the cell phone alone
confers standing upon him.
In sum, Moore fits into the TCPA’s broad standing provision because he is the cell
phone subscriber. He therefore has standing under the TCPA for all thirty-one calls.
D.

Whether DISH Is Entitled to Summary Judgment on Calls 1, 4-7, 11-18,
20, and 21

DISH argues that it is not liable for calls 1, 4 through 7, 11 through 18, 20, and 21
because the Cisco Dialer is not an ATDS and these calls did not play a prerecorded
message. Moore counters that the Cisco Dialer is a predictive dialer that, under FCC rules,
is an ATDS. DISH responds that the Court should focus exclusively on the TCPA’s text
rather than the FCC decisions and, even if those decisions apply, the Cisco Dialer is not
a predictive dialer.
The TCPA defines an ATDS as “equipment which has the capacity (A) to store or
produce telephone numbers to be called, using a random or sequential number generator;
and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).
In 2002, the FCC issued a notice of proposed rulemaking that solicited comments
concerning the definition of an ATDS and “whether it is necessary to identify the
technologies section 227 is designed to address.” In the Matter of Rules and Regulations
19

Implementing the Telephone Consumer Protection Act of 1991, 17 F.C.C.R. 17459, 17473
(Sept. 18, 2002). The FCC explained its reasoning for seeking comment as follows:
The legislative history of the TCPA suggests that autodialer-generated calls
are more intrusive to the privacy concerns of the called party than live
solicitations. An autodialer can generate far more calls to residences than
a telemarketer can manually. In addition, an autodialer is frequently used to
send artificial or prerecorded messages, which the legislative history
suggests are often a greater nuisance and invasion of privacy than calls
placed by “live” persons. We seek comment on this reading of the legislative
history and whether Congress intended the definition of “automatic telephone
dialing system” to be broad enough to include any equipment that dials
numbers automatically, either by producing 10-digit telephone numbers
arbitrarily or generating them from a database of existing telephone numbers.
The Commission recognizes that in the last decade new technologies have
emerged to assist telemarketers in dialing the telephone numbers of potential
customers. More sophisticated dialing systems, such as predictive dialers
and other electronic hardware and software containing databases of
telephone numbers, are now widely used by telemarketers to increase
productivity and lower costs. Therefore, we ask commenters to provide
information on the various technologies used to dial telephone numbers. We
invite comment on the use of random and sequential number generators and
whether an autodialer can generate phone calls from a database of existing
numbers.
Id. at 17473-74 (footnotes omitted). Then, the FCC stated that it was seeking specific
comment regarding whether a predictive dialer is an ATDS:
We seek specific comment on whether a predictive dialer, as a form of
automatic telephone dialing system, is subject to the ban on calls to
emergency lines, health care facilities, paging services, and any service for
which the called party is charged for the call. Specifically, we ask whether a
predictive dialer that dials telephone numbers using a computer database of
numbers falls under the TCPA's restrictions on the use of autodialers. We
seek comment on whether the Commission should adopt rules to further
restrict the use of predictive dialers to dial consumers' telephone numbers.
Id. at 17475 (footnotes omitted).
On July 3, 2003, the FCC released a report and order noting that most industry
members had argued that a predictive dialer is not an ATDS. In the Matter of Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C.R.
20

14014, 14090 (July 3, 2003) [hereinafter 2003 FCC Order]; see also Griffith v. Consumer
Portfolio Serv., Inc., 838 F. Supp. 2d 723, 725-26 (N.D. Ill. 2011). The FCC summarized
their position as follows:
Most industry members that commented on the issue of autodialed calls
argue that predictive dialers do not fall within the statutory definition of
“automatic telephone dialing system,” primarily because, they contend,
predictive dialers do not dial numbers “randomly or sequentially.” Rather,
they state that predictive dialers store pre-programmed numbers or receive
numbers from a computer database and then dial those numbers in a
manner that maximizes efficiencies for call centers.
2003 FCC Order, 18 F.C.C.R. at 14090. The FCC rejected that argument, concluding “that
a predictive dialer falls within the meaning and statutory definition of ‘automatic telephone
dialing equipment’ and the intent of Congress.” Id. at 14093. In doing so, the FCC found
that, when predictive dialer hardware is “paired with certain software,” it “has the capacity
to store or produce numbers and dial those numbers at random, in sequential order, or
from a database of numbers.” Id. at 14091. The FCC also noted that “the evolution of the
teleservices industry has progressed to the point where using lists of numbers is far more
cost effective,” but that “[t]he basic function of such equipment . . . has not changed–the
capacity to dial numbers without human intervention.” Id. at 14092.
In a 2008 Declaratory Ruling, the FCC affirmed “that a predictive dialer constitutes
an automatic telephone dialing system and is subject to the TCPA’s restrictions on the use
of autodialers.” In the Matter of Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, 23 F.C.C.R. 559, 566 (Jan. 4, 2008) [hereinafter 2008
FCC Ruling]. The FCC also recognized that this ruling applied to debt collectors by stating:
With this ruling, however, creditors and debt collectors may use predictive
dialers to call wireless phones, provided the wireless phone number was
provided by the subscriber in connection with the existing debt. We note,
however, that where the subscriber has not made the number available to the
21

creditor regarding the debt, we expect debt collectors to be able to utilize the
same methods and resources that telemarketers have found adequate to
determine which numbers are assigned to wireless carriers, and to comply
with the TCPA’s prohibition on telephone calls using an autodialer or an
artificial or prerecorded voice message to wireless numbers.
Id. at 567.
DISH argues that the Court should disregard these FCC rulings on two grounds–that
the text of the TCPA sufficiently defines an ATDS and the FCC’s orders only apply to cases
involving telemarketing. The first argument is not persuasive because district courts must
defer to FCC rulings. See 28 U.S.C. § 2342(1); 47 U.S.C. § 402(a); see also Davis v.
Diversified Consultants, Inc., Civil Action No. 13-10875-FDS, 2014 WL 2944864, at *5 (D.
Mass. June 27, 2014) (stating that the FCC’s ruling that a “predictive dialer” qualifies as an
ATDS “is entitled to deference”); Sterk v. Path, Inc., __ F. Supp. 2d __, 2014 WL 2443785,
at *4 (N.D. Ill. 2014) (noting that “a district court gives great weight, if not controlling weight,
to final decisions of the FCC implementing and interpreting the TCPA”); Penn v. NRA Grp.,
LLC, Civil Action No. JKB-13-0785, 2014 WL 2986787, at *3 (D. Md. July 1, 2014); Griffith,
838 F. Supp. 2d at 726 (noting that the FCC’s final orders bind district courts). Moreover,
several district courts have found that a predictive dialer is an ATDS based on these
rulings. See Davis, 2014 WL 2944864, at *4-5; Sterk, 2014 WL 2443785, at *4; Griffith,
838 F. Supp. 2d at 725-27. Further, the FCC’s ruling that a predictive dialer is an ATDS
applies in cases involving debt collection calls, not just telemarketing calls. See Griffith,
838 F. Supp. 2d at 727 (rejecting argument “that the TCPA only applies to telemarketing,
not debt collection”). The FCC concluded that predictive dialers fall under the TCPA’s
definition of an ATDS without limiting that ruling based on the purpose for which a call is
made.

See 2003 FCC Order, 18 F.C.C.R. at 14093.
22

Indeed, as noted, the FCC

recognized in its 2008 Declaratory Ruling that its predictive dialer rule applies to debt
collection calls by explaining how debt collectors can use predictive dialers without violating
the TCPA. See 2008 FCC Ruling, 23 F.C.C.R. at 567. Accordingly, a predictive dialer is
an ATDS pursuant to the FCC’s 2003 Order and 2008 Ruling.
The Court must now determine whether the Cisco Dialer is a predictive dialer. DISH
argues that its system is not a predictive dialer based exclusively on the following portion
of an affidavit of Joey L. Montano, a Business Operations Manager for DISH:
The Cisco Dialer that DISH uses: (a) is not configured, and does not have the
capacity, to store or generate telephone numbers using a random or
sequential number generator; (b) must be, but has not been, upgraded with
separate software to give it the capacity to do so; (c) cannot function without
a human generated list of telephone numbers provided by an external
software source, i.e., DISH’s campaign manager; (d) the records that are
contained in the “campaign” (defied as the outbound initiative for the purpose
of the telephone call) are based on criteria for each individual “business
owner” (defined as the division or business unit operated by humans within
DISH) that owns the campaign; (e) requires a human operation analyst to
process the human-generated list of telephone numbers by finding the
appropriate list for each campaign and loading the campaign into the various
lists; (f) requires the human operation analyst to import the appropriate text
file into the campaign manager software for the correct campaign; and (g)
does not have the capacity to randomly or sequentially generate telephone
numbers without fundamentally changing the architecture of the hardware
and software.
Montano Aff. ¶ 7, Aug. 15, 2014. DISH contends that this affidavit shows there is extensive
human involvement in the processing and dialing of numbers that establishes it did not
make the calls with a predictive dialer.
In response to Montano’s affidavit, Moore points to portions of Montano’s deposition
testimony that clarify how DISH’s dialing equipment functions.1 DISH’s dialing system has
two parts—the Cisco hardware and the Campaign Manager software. Montano Dep. 28:91

These facts are undisputed because DISH has not produced any evidence contradicting
Montano’s deposition testimony.

23

11, Feb. 5, 2014. Consistent with his affidavit, Montano testified that humans import phone
numbers into the Campaign Manager software. Id. at 24:17-25:8. The phone numbers
“reside in the Campaign Manager” until the Campaign Manager sends them to the dialer.
Id. 26:2-3, 27:8-10. The dialer then “calls each record contained in the list in the order that
they are delivered to the hardware.” Id. at 30:22-24.
Here, it is apparent that DISH focuses on evidence of human involvement in the listcreation process to avoid the clear implication of the FCC’s decision as applied to this
case—that the Cisco Dialer is a predictive dialer. In its 2003 Order, the FCC defined a
predictive dialer as having the “capacity to store or produce numbers and dial those
numbers at random, in sequential order, or from a database of numbers” when paired with
software. 2003 FCC Order, 18 F.C.C.R. at 14091 (emphasis added). The FCC did
reference the lack of human involvement typical of a predictive dialer, but only to explain
why it found a predictive dialer qualified as an ATDS. See id. at 14092. Thus, contrary to
DISH’s argument, it is irrelevant under the FCC’s definition of a predictive dialer that
humans are involved in the process of creating the lists that are entered into the Campaign
Manager software. See Sterk, 2014 WL 2443785, at *4 (finding system was a predictive
dialer despite fact that users of the defendant’s service made their contact information
available to the defendant because users’ involvement was “essentially the same as when
a call list is entered by a telemarketer in a database”). Because portions (c), (d), (e), and
(f) of Montano’s affidavit all allege facts concerning that part of DISH’s call process, they
carry no weight in the predictive dialer analysis. The same is true for the remainder of
Montano’s affidavit–portions (a), (b), and (g). This evidence demonstrates that the Cisco
Dialer lacks the capacity to randomly or sequentially generate telephone numbers. Per the
24

2003 FCC Order, the Cisco Dialer can be a predictive dialer without that capacity. See
2003 FCC Order, 18 F.C.C.R. at 14091; see also Davis, 2014 WL 2944864, at *5 (“And
even if . . . [the defendant’s] system cannot dial randomly or sequentially, it is undisputed
that [the system] is a ‘predictive dialer’ that dials from lists of numbers. The FCC rulings
specifically account for the fact that technology has developed such that lists of numbers
are more cost-effective than random or sequential numbers.”).

Simply put, DISH’s

equipment (the hardware dialer and software program) is a predictive dialer under the
FCC’s orders if it makes calls from a stored list of phone numbers without human
intervention. See Davis, 2014 WL 2944864, at *5 (finding system that dialed automatically
from lists of numbers was predictive dialer under FCC rulings); Sterk, 2014 WL 2443785,
at *4 (“The undisputed facts show that the equipment used by [the defendant], which
makes calls from a stored list without human intervention is comparable to the predictive
dialers that have been found by the FCC to constitute an ATDS. . . . It is the ultimate
calling from the list by the automated equipment that is the violation of the TCPA”); Griffith,
838 F. Supp. 2d at 727. That is exactly how the Cisco Dialer functioned per Montano’s
undisputed deposition testimony and affidavit. Lists of numbers are stored in the Campaign
Manager (or “reside” there), those lists of numbers are transferred from the Campaign
Manager to the dialer hardware without human intervention, and the dialer hardware
automatically dials numbers from those lists. Accordingly, based on the undisputed
deposition testimony and affidavit of Montano, the Court holds that DISH used an ATDS
to call the 2882 number because there is no genuine dispute of material fact that the Cisco
Dialer is a predictive dialer under the FCC’s rulings.

25

As a final matter here, the Court notes that DISH contends that this Court would be
setting a new precedent by finding that the Cisco Dialer is a predictive dialer. This is
inaccurate because several other district courts have held that similar equipment is a
predictive dialer. See Davis, 2014 WL 2944864, at *5-6; Sterk, 2014 WL 2443785, at *4;
Griffith, 838 F. Supp. 2d at 727 (holding defendant's equipment was an ATDS based on
dialer's ability to call numbers automatically from a list stored in a software file).
E.

Whether Moore Has Standing as to Calls 30 and 31

As to calls 30 and 31, DISH argues that Moore lacks Article III standing because a
private investigator hired by Moore’s counsel had the cell phone when those calls were
made. Alternatively, DISH argues that Moore lacks statutory standing because he did not
answer these calls.
The Fourth Circuit has stated that “it is well established that the ‘injury required by
Article III may exist solely by virtue of statutes creating legal rights, the invasion of which
creates standing.’” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d
149, 156 (4th Cir. 2000) (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)). Thus,
because the Court has found that Moore has statutory standing as to all calls, he has
standing under Article III to recover under the TCPA for calls 30 and 31. See id.; see also
Manno, 289 F.R.D. at 681-82 (holding allegations that defendants violated the TCPA were
sufficient to give the plaintiff Article III standing).
Moreover, the plain language of the TCPA does not require that Moore physically
possess the cell phone a call occurs or answer a call to have standing. The TCPA makes
it unlawful “to make any call using any automatic telephone dialing system or an artificial
or prerecorded voice to any . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii).
26

By these terms, the making of each call from DISH to the 2882 number triggered liability.
See Fillichio, 2010 WL 4261442, at *3 (holding “the prohibition in the TCPA applies to
phone calls placed to cellular telephone numbers even if the intended recipient does not
answer the calls” and stating “the mere act of placing the call that triggers the statute”).
Accordingly, the Court finds that Moore has both statutory and Article III standing to bring
a TCPA claim for calls 30 and 31.
F.

Whether DISH Is Entitled to Summary Judgment on Calls Made from the
8290 Number and Any Additional Calls

Finally, DISH moves for summary judgment to the extent that Moore seeks to hold
it liable for calls made to the 2882 number from the 8290 number and any calls in addition
to the thirty-one calls that DISH admits it made.
Here, Moore has neither offered evidence connecting DISH to the 8290 number nor
presently argued that DISH is liable for any other calls made from that number to his cell
phone. Moore also has not produced evidence showing that DISH made any calls to the
2882 number other than the thirty-one calls DISH admits to making. Indeed, there is no
indication why, with discovery closed and trial soon commencing, Moore seeks only partial
summary judgment. Accordingly, the Court grants DISH’s motion for summary judgment
to the extent that Moore seeks to hold DISH liable for any calls made to the 2882 number
from the 8290 number and any other calls beyond the thirty-one calls that DISH admits it
made to the 2882 number because there is no evidence connecting DISH to any calls
made to the 2882 number other than the thirty-one calls DISH admits it made.
Having rejected all of DISH’s arguments that it is not liable for the thirty-one phone
calls at issue, the Court now finds that there are no genuine issues of material fact
concerning the elements of Moore’s TCPA claim and that, based on the undisputed facts,
27

Moore has established liability. In light of the Court's earlier findings, a plaintiff must
establish four elements to succeed on a claim brought under § 227(b)(1)(A)(iii): (1) a call
was made to “a cellular telephone service”; (2) the call was not “made for emergency
purposes”; (3) the call was not made “with the prior express consent of the called party”;
and (3) the call was made using an “automatic telephone dialing system or an artificial or
prerecorded voice.” 47 U.S.C. § 227(b)(1)(A); see also Harris, 867 F. Supp. 2d at 892
(outlining the elements of a TCPA claim). There is no dispute that DISH made these calls
to a cell phone to which Moore subscribed for non-emergency purposes and without
Moore’s consent. DISH also made these calls using an ATDS or an artificial or prerecorded
voice based on the Court’s finding that DISH used a predictive dialer that qualifies as an
ATDS and DISH’s admission that a message using an artificial or prerecorded voice was
played on several calls.2 Accordingly, the Court grants summary judgment in Moore’s favor
as to DISH’s liability for the thirty-one phone calls.
Because DISH is liable for these calls, the Court now considers the damages that
Moore is entitled to receive. When a plaintiff succeeds on a TCPA claim, he can recover
the greater of actual damages or $500 for each violation of § 227(b)(1)(A)(iii). 47 U.S.C.
§ 227(b)(3). “If the court finds that the defendant willfully or knowingly violated” the TCPA,
it may award treble damages. Id. “[T]he intent for treble damages does not require any
malicious or wanton conduct, but rather is satisfied by merely ‘knowing’ conduct.” Alea
London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011).
Moore seeks an award of $500 for each violation and treble damages for calls 25
through 31, which all occurred after DISH’s June 11, 2012 attempt to add the 2882 number
2

The Court expresses no opinion as to whether, if DISH's equipment did not qualify as an ATDS, the calls
that did not play a prerecorded message violated the TCPA.

28

to its do-not-call list. DISH does not oppose argument that he is entitled to treble damages
or offer evidence contradicting the basis of Moore’s claim for treble damages. Thus, it is
undisputed that DISH knew that it was calling Moore, not the DISH account holder, at the
2882 number when it made calls 25 through 31 because Moore had advised DISH of its
error by that time, which is reflected in DISH’s own records. Accordingly, because DISH
knew that it was calling the wrong person but persisted in calling the 2882 number
regardless of that knowledge, the Court finds that DISH willfully and knowingly violated
Moore’s rights under the TCPA when making calls 25 through 31. See Harris, 867 F. Supp.
2d at 895-87 (awarding treble damages for calls made to plaintiff’s cell phone after plaintiff
notified defendant that it was calling the wrong number). The Court therefore awards
Moore treble damages for those violations.
IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART the Plaintiff’s Renewed
Motion for Partial Summary Judgment and GRANTS IN PART the Defendant’s Motion for
Summary Judgment.
The Court GRANTS summary judgment in the Plaintiff’s favor as to the thirty-one
calls that DISH admits it made to the 2882 number. Having found in the Plaintiff’s favor on
liability, the Court AWARDS the Plaintiff statutory damages of $500 for twenty-four of the
TCPA violations pursuant to 47 U.S.C. § 227(b)(3)(B) and AWARDS the Plaintiff treble
damages for seven of the TCPA violations pursuant to 47 U.S.C. § 227(b)(3) because the
Defendant made those calls after the Plaintiff notified the Defendant that it was calling the

29

wrong number. Accordingly, the Court ENTERS judgment in the Plaintiff’s favor in the
amount of $22,500.3
The Court GRANTS the Defendant’s Motion for Summary Judgment to the extent
that the Plaintiff seeks to hold the Defendant liable for calls made to the 2882 number from
the 8290 number and any other calls in addition to the thirty-one calls for which DISH has
been found liable.
Because no issues remain in dispute between the parties, the Court DISMISSES this
action WITH PREJUDICE. The Court further ORDERS that this case be STRICKEN from
this Court’s active docket.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: October 15, 2014

3

This judgment is the sum of $12,000 in damages for the violations subject to a recovery of $500
per violation and $10,500 in damages for the violations subject to treble damages.

30