The United States Court of Appeals for the Seventh Circuit affirmed an Illinois district court’s judgment against Dish Network for Telephone Consumer Protection Act violations except for the calculations of damages.
The telemarketing calls deemed to violate the TCPA were made to consumers who had signed up for the Do Not Call List and previously had said they did not want to receive sales calls. The district court found Dish liable for making roughly 66 million unlawful telemarketing calls to consumers. However, on appeal, the Seventh Circuit found that the calculation of the $280 million civil penalty and statutory damages payable to the federal government, North Carolina, California, Ohio, and Illinois were not properly calculated.
The district court judge based her calculation of damages entirely on Dish’s ability to pay. The damages were set at 20% of one year of Dish’s profits. Instead of basing the damages on Dish’s ability to pay, the district court should have based the fines on the amount of harm done. The amount of damages should have been calculated based on the amount of harm caused, then adding the appropriate multiplier for punitive damages.
The Seventh Circuit stated that the maximum penalty is $10,000 per violation. Therefore, Dish could be liable for up to $660 billion, which the Court noted would be impossible to justify. The award of $280 million is roughly $4 per improper call.
Ultimately, Dish will have another chance to argue that damages did not amount to $280 million on remand. However, there is nothing that prevents the district court from determining a greater amount of damages.
As always, we continue to monitor the TCPA landscape as the law continues to evolve.