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by Justice Paul E. Pfeifer
If there’s anyone out there who enjoys getting automated telephone sales calls at home, I haven’t met them. In a nation often divided over politics and other issues, it’s the one thing on which we can all agree: phone solicitation is annoying.
That’s why the federal Telephone Consumer Protection Act was enacted in 1991. The TCPA was enacted in response to “the burgeoning use of telephone solicitations to market goods and services in the United States, and the concomitant frustration of the American public.”
The TCPA was intended to stop prerecorded voice messages from being sent to private residential telephones. In part, the law states that it is unlawful for any person to “initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.”
The law also provides for a private right of action “to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.” That means anyone who receives a prerecorded telemarketing call at home, without first consenting to the call, may sue and recover damages. Plus, the law allows for the possibility that a customer may sue for up to 3 times the amount of available damages, if the court finds that the defendant willfully or knowingly violated the regulations.
The TCPA – and more specifically, the “willfully or knowingly” aspect of the law – was the centerpiece of a case that we recently reviewed here at the Supreme Court of Ohio.
The case began on December 9, 2003, when Phillip Charvat received a prerecorded message on his home telephone from Thomas N. Ryan, D.D.S. Ryan’s call, which was made using automated dialing equipment, advertised various dental services.
After listening to the message, Charvat sent a letter to Ryan, demanding a copy of the office’s “do not call” policy. Ryan never sent a copy of the policy to Charvat.
On January 20, 2004, Charvat filed a complaint in the court of common pleas setting forth claims for multiple violations of the TCPA. Charvat asked for the treble damages allowed by the TCPA.
Ryan admitted to a single violation of the TCPA but also emphasized that he acted in good faith to comply with the law. Ryan contacted the Ohio Attorney General’s office prior to beginning the telemarketing campaign and was told that all he had to do was download and honor the federal do-not-call list. Charvat’s name is not on that list, but registration is not a prerequisite for a consumer to file an action for violations of the TCPA.
In response to Charvat’s complaint, Ryan filed a motion arguing that Charvat’s damages were limited to a single TCPA violation. Charvat responded that the unauthorized call constituted four violations, since in his estimation it violated four TCPA provisions.
The trial court rejected Charvat's argument and found Ryan liable for two violations of the TCPA: one for leaving the message and a second for failing to send Charvat a copy of the “do not call” policy.
The trial court declined to award treble damages under the TCPA, finding that Ryan did not act with the required “culpable mental state.” In other words, the court said that a defendant “must affirmatively know it is violating a regulation when making the telephone call for purposes of the treble damages provision.”
When the court of appeals reviewed the case, it agreed Charvat was entitled to damages for the delivery of the message and for not receiving the “do not call” policy. As for the treble damages, the court of appeals agreed that the violation that resulted from the call was not willful.
When the case came before us, the issue at hand was the meaning of the terms “knowingly” and “willfully” as they’re used in the TCPA for the purpose of awarding treble damages.
As mentioned earlier, the relevant subsection of the TCPA says that if the court “finds that the defendant willfully or knowingly” violated the regulations, the court may triple the amount of the award.
Charvat argued that we should interpret the term “knowingly” to mean that Ryan knew he had initiated a telemarketing call using a prerecorded message system, not that he knew he was violating the TCPA. Ryan, on the other hand, maintained that use of the words “willfully” or “knowingly” requires that the defendant have a culpable mental state. That is to say that the caller must affirmatively know he is “violating a regulation when making the telephone call.”
“Knowingly” is not defined in the TCPA, but courts have often defined the term in criminal cases. The United States Supreme Court has explained that “‘knowingly’ does not necessarily have any reference to a culpable state of mind or to knowledge of the law.”
We determined that to establish a “knowing” violation of the TCPA for an award of treble damages, a plaintiff – Charvat in this case – must prove only that the defendant – Ryan – knew of the facts that constituted the offense.
As for the term “willfully,” the Federal Communications Commission has examined the TCPA and determined that a willful violation means that the “violator knew that he was doing the act in question” and that the violator need not know that his action constitutes a violation. “Ignorance of the law,” the FCC said, “is not a defense.”
By a seven-to-zero vote, we held that to establish a knowing or willful violation of the TCPA for an award of treble damages, a plaintiff need not prove that the defendant knew that conduct violated the law but only that the defendant knew the underlying facts of the conduct.
With this ruling we reversed the portion of the court of appeals’ judgment regarding the award of treble damages. We sent the case back to the trial court where the trial judge then has the discretion to determine whether to award treble damages to Charvat based on the standard we have established.EDITOR'S NOTE: The case referred to is Charvat v. Ryan, 116 Ohio St.3d 394, 2007-Ohio-6833. Case Nos. 2006-1647 and 2006-1855. Decided Dec. 27, 2007. Majority opinion written by Justice Judith Ann Lanzinger.