[author: Joshua Threadcraft]

Private party litigants can seek the following relief under the TCPA: (1) Injunctive relief; (2) Actual damages or $500 for each violation of the Act (whichever is greater); or (3) Both Injunctive relief and damages (47 U.S.C. § 227(b)(3)). Courts also have the discretion to treble damage awards if a violation of the Act is “willful and knowing,” i.e., each $500 violation could be increased to $1,500 in the court’s discretion.

What constitutes a “willful and knowing” violation of the TCPA depends on the court in which the action is filed. Specifically, some courts hold that a defendant must know that its actions violate the TCPA.  Other courts, however, hold that a plaintiff need only show that the defendant willfully or knowingly sent the unsolicited fax, or made the prerecorded call, concluding that knowledge of the law is unnecessary.

With statutory damage awards of up to $1,500 per violation, the TCPA creates a possibility for staggering verdicts. For example, a Georgia trial court recently awarded a plaintiff $459 Million in damages under the TCPA. A recent class action certification order appealed to the U.S. Court of Appeals for the Seventh Circuit placed at issue between $250 Million and $750 Million depending   on whether the alleged violation was deemed “willful and knowing.” Similarly, multi-million dollar settlements are not uncommon. Unlike many consumer protection statutes, the TCPA does not provide for the recovery of attorneys’ fees.

For more information on the TCPA regulation and effects, contact Burr & Forman attorney, Joshua Threadcraft, here.