Burr & Forman

09.23.2015   |   Blog Articles, Consumer Finance Litigation, North Carolina, TCPA

Court Acknowledges That “Good Faith” Belief of Consent May Be a Complete Defense Under TCPA

In Danehy v. Time Warner Cable Enterprise LLC, No. 5:14-cv-133, 2015 WL 5534285 (E.D.N.C. Sep. 18, 2015), the United States District Court for the Eastern District of North Carolina adopted the magistrate’s findings that a caller’s good-faith belief of consent is a complete defense under the Telephone Consumer Protection Act (“TCPA”). The defendant in Danehy, a cable company, had been asked by one of its customers to perform a service visit. The customer had provided a cell phone number to the defendant as one of his contact numbers. Unbeknownst to the defendant, the cell phone number had since been reassigned to the plaintiff. It was undisputed that the plaintiff himself never provided consent for the defendant to call the number. The defendant placed six calls to the cell phone number in an attempt to reach its customer regarding the service visit. The Danehy plaintiff filed suit, alleging that the defendant violated the TCPA by 1) placing unauthorized calls to his cell phone using an automatic telephone dialing system (“ATDS”), and 2) placing calls to a number listed in the national Do-Not-Call Registry. The defendant moved for summary judgment on both counts. The magistrate judge granted summary judgment on three grounds: 1) that the calls were not placed using an ATDS; 2) that the defendant’s “good faith belief of consent” was “a complete defense” under the TCPA; and 3) that the defendant’s service calls “fell outside the intended scope of the TCPA.” The plaintiff objected to the magistrate’s finding that the defendant did not use an ATDS. Adopting the magistrate’s recommendation to grant summary judgment, the court noted that the plaintiff’s objection regarding the ATDS finding was immaterial because summary judgment was proper on the alternative grounds proposed by the magistrate. Specifically, the court held that there was no clear error in the magistrate’s determinations regarding a “good faith” defense and the scope of the TCPA, noting that courts are divided on these issues.

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