No Summary Judgment for Time Warner in Robocall Suit

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By Jimmy H. Koo

Jan. 15 — Time Warner Cable Inc. Jan. 14 failed to obtain summary judgment in a lawsuit alleging that the company violated the Telephone Consumer Protection Act by using an automated telephone dialing system and a prerecorded voice.

Citing the Federal Communications Commission's July 10, 2015 declaratory ruling and order, Judge Louise W. Flanagan of the U.S. District Court for the Eastern District of North Carolina said that consent is revocable under the TCPA, 47 U.S.C. § 227.

Plaintiff's counsel Ruth M. Allen in Raleigh, N.C., told Bloomberg BNA Jan. 15 that Time Warner should “change its conduct with respect to consumers.” Time Warner's counsel couldn't be immediately reached for comment.

In 2013, plaintiff Judith Cartrette asked Time Warner to install cable services at her home. The services subscriber agreement contained a paragraph titled “Robo-Calls,” which stated that the company “may use automated dialing systems or artificial or recorded voices” to contact customers or leave messages, the court said.

In October 2013, Time Warner allegedly started calling the plaintiff's mobile phone regarding an unpaid installation fee. In a Jan. 14, 2014 live telephone conversation, the plaintiff disputed the debt and instructed Time Warner to cease all calls to her mobile phone. However, between Jan. 29, 2014 and Feb. 11, 2014, the plaintiff allegedly continued to receive phone calls from Time Warner on her mobile phone.

Right to Revoke Consent

Alleging violations of the TCPA, the plaintiff filed suit. Moving for summary judgment, Time Warner argued that the TCPA and the services agreement allowed the plaintiff “no right to revoke her prior consent” to receive phone calls, and that it didn't use an automated telephone dialing system (ATDS).

The court disagreed.

In July 2015, the FCC issued a declaratory ruling and order, giving consumers the right to revoke their consent to receive robocalls or text messages “in any reasonable way” at any time, the court said (14 PVLR 1326, 7/20/15).

Although the U.S. Court of Appeals for the Fourth Circuit hasn't addressed revocation of consent in this context, the court said that other appeals courts have “aligned themselves” with the FCC and held that consent is revocable under the TCPA. In light of the FCC ruling and existing case precedent, the court held that Time Warner failed to establish a right to summary judgment on the defense of prior express consent.

The court, however, said that there's a genuine issue of material fact concerning whether the plaintiff's instructions to Time Warner constituted a valid revocation.

Further, it rejected Time Warner's argument that it didn't use an ATDS. “By virtue of its capacities and functioning,” it said, Time Warner's system qualifies as an ATDS.

Brooks Pierce McLendon Humphrey & Leonard LLP represents Time Warner.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com

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