Recently, a U.S. District Court in the District of New Mexico denied a defendant’s motion for summary judgment on Telephone Consumer Protection Act (TCPA) claims for telemarketing calls, finding genuine questions of fact about the defendant’s direct liability, actual authority over agents making the calls, whether the system used to make the calls is an Automatic Telephone Dialing System (ATDS), and whether there is a private right of action under 47 C.F.R. § 64.1200(d)(4). The court granted summary judgment only on claims regarding apparent authority for the agents who called and ratification of the agents’ actions.
In Escano v. RCI, LLC, the plaintiff’s number was on thea National Do Not Call Registry, yet he allegedly received 27 telemarketing calls regarding a timeshare network. During the first call, which both parties conceded was outside the statute of limitations, the representative said the call was from a “marketing division of RCI.” Although none of the subsequent calls identified RCI, later calls were very similar, with the same recorded voice, intonations, and offers for resorts within RCI’s timeshare network. Additionally, after the plaintiff sent demand letters to the defendant, he only received one more call. The plaintiff alleged 15 violations of the TCPA and state law.
The defendant claimed it was entitled to summary judgment on all claims because it had no record of the plaintiff’s phone number in its member database or any call logs showing calls to that number, and there was no evidence of an agency relationship with whomever made the calls, there was no evidence an ATDS was used, and there was no private cause of action under § 64.1200(d)(4).
On the question of direct liability, the district court denied summary judgment, finding disputed facts based on the similarities between the first and the subsequent calls, the company that charged the plaintiff’s credit card reported in a manner designed by the defendant, and that company had similar ownership. The district court split its ruling on vicarious liability finding, again, there were genuine questions of fact regarding the interconnections between the defendant and the alleged agents. The court found the plaintiff’s lack of knowledge about which entity made the calls did not trump these other issues.
However, apparent authority went the other way with the court granting summary judgment after finding the plaintiff did not provide enough facts to show the knowledge requirement of an agency relationship — that the agent believed it had authority to act on behalf of the defendant and the defendant knew the agent was violating the TCPA. The district court also granted summary judgment on the ratification claim, determining the plaintiff failed to provide a factual basis to show the defendant had knowledge the company calling on the defendant’s behalf was violating the TCPA, requiring a reasonable person to investigate.
The district court also denied summary judgment on the technology-based counts, finding there were sufficient fact questions about whether the defendant used an ATDS based on recordings starting with the same pre-recorded messages, the number called was a cell phone number, and a recording where the representative said they are in a “huge call center.” Finally, the court found § 64.1200(d)(4) was promulgated under § 227(c) of the TCPA, which provides a private right of action.
Because the majority of the claims survived summary judgment, the court also denied the defendant’s request for attorney’s fees.