In Charvat v. NMP, LLC, — F.3d —-, 2011 WL 3805618 (6th Cir. 2011), the Court of Appeals held that a TCPA plaintiff can not recover multiple damages on a per call basis for the same harm under the TCPA, but can recover multiple damages on a per call basis when the subsections sued on target different harms.
Charvat alleges five counts of violations under the TCPA from the thirty-three telephone calls. He alleges that Defendants (1) used a prerecorded voice to deliver a message without his prior express consent, in violation of 47 U.S.C. § 227(b)(3)(A), in thirty-one of the calls (Count One); (2) failed to provide the name of the person or entity on whose behalf the call was being made, in violation of 47 C.F.R. § 64.1200(d)(4), in thirty-one of the calls (Count Two); (3) failed to provide the telephone number or address at which the person or entity on whose behalf the call was being made may be contacted, in violation of 47 C.F.R. § 64.1200(d)(4), in the first call (Count Three); (4) failed to maintain a record of his previous request to be placed on the do-not-call list, in violation of 47 C.F .R. § 64.1200(d)(6), for thirty of the calls (Count Seven); and (5) failed to honor his previous do-not-call request, in violation of 47 C.F.R. § 64.1200(d)(3), for thirty of the calls (Count Eight). Charvat argues that Defendants committed these violations willfully or knowingly and that therefore he is entitled to treble statutory damages of $1500 for each violation in each call. Charvat thus alleges damages totaling $184,500 under the TCPA. ¶ Applying our decision in GVN Michigan, in which we concluded that § 227(c)(5)’s damages provision “unambiguously allows for statutory damages on only a per-call basis,” 561 F.3d at 631, the district court concluded that § 227(b)(3)’s damage provision for automated calls likewise limits damages to one recovery per call. The district court recognized that, in GVN Michigan, we relied on the word “call” in the beginning of the sentence in § 227(c)(5), to conclude that “each such violation” provides for damages on a per-call basis, 561 F.3d at 631–32, and that § 227(b)(3) does not include the word “call.” Compare § 227(c)(5) (“A person who has received more than one telephone call within any 12–month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may … bring … an action … to receive up to $500 in damages for each such violation ….”), with § 227(b)(3) (“A person or entity may … bring … an action … to receive $500 in damages for each such violation….”). The district court concluded that the textual difference is not a reason to interpret the sections differently. It noted that § 227(b)(3) is not limited to telephone calls but also encompasses fax transmissions, and concluded that “Congress did not intend to provide a windfall to a person who receives an automated call instead of a live call.” R.53 (Dist. Ct. Op. at 9) (citing 137 Cong. Rec. S 16,204, S16,205 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings)). ¶ As an initial matter, under our decision in GVN Michigan, Charvat is limited to collecting statutory damages on a per-call basis for his multiple claims—specifically, Counts Two, Three, Seven, and Eight—brought pursuant to the regulations requiring certain minimum procedures for maintaining a do-not-call list. 47 U .S.C. § 227(c); 47 C.F.R. § 64.1200(d). In GVN Michigan, we read the introductory language of 47 C.F.R. § 64.1200(d) FN7 in conjunction with the listed “minimum standards” for these procedures FN8 to conclude that the “regulations focus on the telephone call itself.” 561 F.3d at 632. “The ‘violation of the regulations’ is therefore the initiation of the phone call without having implemented the minimum procedures.” Id. Charvat is thus limited to $46,500 of damages for violation of these regulations: $1500 for each of the thirty-one telephone calls that he alleges Defendants initiated without having implemented the minimum procedures for maintaining a do-not-call list. ¶ The more difficult question is whether Charvat may recover statutory damages under both the automated-call subsection of the TCPA, 47 U.S.C. § 227(b), and the do-not-call-list subsection, 47 U.S.C. § 227(c) (as implemented in 47 C.F.R. § 64.1200(d)). We look first to the statutory language. The fact that the statute includes separate provisions for statutory damages in subsections (b) and (c) suggests that a plaintiff could recover under both. See Reichenbach v. Chung Holdings, LLC, 159 Ohio App.3d 79, 823 N.E.2d 29, 32–34 (Ohio Ct.App.2004).FN9 Subsection (b) permits “an action based on a violation of this subsection or the regulations prescribed under this subsection,” § 227(b)(3)(A) (emphases added),FN10 and subsection (c) permits an action based on a “telephone call … in violation of the regulations prescribed under this subsection,” § 227(c)(5) (emphasis added). Additionally, the two private-right-of-action provisions contain significant textual differences, indicating that they are distinct provisions to be treated independently. Subsection (c), which requires the maintenance of a do-not-call list, has a threshold requirement that a person “receive[ ] more than one telephone call within any 12–month period by or on behalf of the same entity.” 47 U.S.C. § 227(c)(5). Subsection (c)’s private-right-of-action provision also includes an affirmative defense if “the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under [subsection (c) ].” Id. These provisions do not appear in the automated-call subsection, § 227(b)(3). ¶ The two subsections, moreover, target different harms: Subsection (b) imposes greater restrictions on automated telephone calls and transmissions, which Congress found to be “more of a nuisance and a greater invasion of privacy than calls placed by ‘live’ persons.” S.Rep. No. 102–178, at 4–5, reprinted in 1991 U.S.C.C.A.N.1968, 1972. Subsection (c) and its accompanying regulations in 47 C .F.R. § 64.1200(d) impose minimum procedures for maintaining a do-not-call list that apply to all calls—live or automated—initiated for telemarketing purposes to residential telephone subscribers. By enacting separate private-right-of-action provisions, each including a statutory damages provision, Congress evidenced its intent that a person be able to recover for the telemarketer’s failure to institute the minimum procedures for maintaining a do-not-call list as well as the additional harm of the call being automated.FN11 Recovery of damages for the two separate provisions does not upset Congress’s balance in setting damages “ ‘fair to both the consumer and the telemarketer.’ “ See GVN Mich., 561 F.3d at 632 n. 8 (quoting 137 Cong. Rec. S16,204, S16,205 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings)). ¶ We therefore conclude that a person may recover statutory damages of $1500 for a willful or knowing violation of the automated-call requirements, § 227(b)(3), and $1500 for a willful or knowing violation of the do-not-call-list requirements, § 227(c)(5)—even if both violations occurred in the same telephone call. Charvat alleges that Defendants willfully or knowingly violated subsection (b)’s automated-call requirements and subsection (c)’s do-not-call-list requirements in thirty-one of the telephone calls. Thus, Charvat’s maximum damages for the thirty-one telephone calls that he alleges violated both sets of requirements total $93,000.