Man Bites Dog: DirecTV Defeats TCPA Class Action

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A federal judge granted summary judgment on February 12 to DirecTV, LLC (DirecTV), holding it was not liable under the Telephone Consumer Protection Act (TCPA) for unsolicited telemarketing calls placed by a third-party vendor because DirecTV had clearly instructed the vendor not to make any cold calls.

The class action, Cordoba et al. v. DirecTV, alleged that DirecTV had violated the TCPA by authorizing a call center vendor, Telecel Marketing Solutions, LLC (Telecel), to place telemarketing calls to solicit subscriptions on DirecTV’s behalf without obtaining the called party’s consent. Specifically, Cordoba argued that Telecel had not kept an internal do-not-call list or respected do-not-call requests, placing unconsented-to telemarketing calls to nearly 17,000 individuals, and claimed that DirecTV knew of and authorized those calls. Telecel, an independent contractor, received commissions for each customer that activated service with DirecTV.

Judge Cohen of the Northern District of Georgia found that, far from authorizing the calls, DirecTV’s contracts with Telecel “expressly prohibited” the making of unsolicited calls to potential customers who had not contacted Telecel first, even when the evidence was viewed in the light most favorable to the plaintiffs. The agreement went beyond a “vague instruction . . . to obey all applicable laws,” stating “unambiguously” that telemarketing calls “to residential telephone lines or cellular phones are not permitted.” DirecTV also required Telecel to comply with its telemarketing policy, which forbade all such calls “unless they are returning a direct inquiry from a customer and such inquiry can be substantiated.” And these prohibitions were prominently placed on the cover letter for the telemarketing policy with a bold and underlined “Reminder,” not buried in legal jargon. As a result, the court held DirecTV could not be found to have given express consent for the calls to Telecel.

Additionally, there was no evidence DirecTV knew of these calls, aside from a single call that resulted in a warning from DirecTV to Telecel. However, DirecTV, in corresponding with Cordoba about calls from third-party vendors, had made sure Cordoba knew that removal from DirecTV’s internal do-not-call list would not “impact activities of independent retailers, who may promote DirecTV services or products.” Therefore, Telecel had no implied or apparent authority to place these calls.

Since DirecTV had clearly not ratified Telecel’s cold calls, the court granted DirecTV’s motion for summary judgment, dismissing the class and individual TCPA claims. Following this decision, the only unresolved matter is a claim by another plaintiff under the Satellite Television Extension and Localism Act. That claim, alleging that DirecTV disclosed protected subscriber information, will be moved to arbitration as ordered by the Eleventh Circuit in February 2020.

DirecTV’s success contrasts markedly with the outcome of Dish Network’s (Dish) TCPA litigation in 2017. Dish faced federal allegations that it had placed tens of millions of telemarketing sales calls to individuals on national and internal do-not-call lists through third-party vendors. The court found Dish liable, assessing a record-setting $280 million in civil penalties under the TCPA and Telemarketing Sales Rule, due in part to Dish’s failure to provide clear instructions to and oversight of its vendors. The Fourth Circuit later upheld a $61 million class action verdict against Dish Network in a separate TCPA case on similar grounds.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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