In Morgan v. Branson Vacation & Travel, LLC, 2013 WL 5532228 (W.D.Okla. 2013), Judge Cauthron granted partial summary judgment on a TCPA claim, finding that ‘good faith’ was no defense to the claim.
It is undisputed that Branson placed at least 37 calls to the 6743 number and that those calls were made with an automatic dialing system subject to the TCPA. Accordingly, the Court finds that Plaintiff has established the elements of his claim for violation of the TCPA by Branson. The only defense available to Branson at law is that Plaintiff had provided consent to receive calls at the 6743 number. However, the undisputed evidence before the Court demonstrates that Plaintiff did not provide his consent. ¶ Defendant argues that it has offered evidence showing good faith measures to ensure it was in compliance with the TCPA. However, Defendant has offered no legal authority to establish the existence of a good faith defense. Defendant’s good faith is im-material as the statute imposes strict liability for violations. See Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir.2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 553 (2011); Branham v. ISI Alarms, Inc., No. 12–CV–1012 (ARR)(MDG), 2013 WL 4710588, *8 (E.D.N.Y.2013).
The District Court found, however, that intent – or ‘good faith’ – was relevant to the issue of trebling of the damages, as opposed to a defense to the TCPA claim itself.
Plaintiff also requests treble damages, noting that the statute states, “[i]f the court finds that the defendant willfully or knowingly violated this subsection … the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.” 47 U.S.C. § 227(b)(3). Plaintiff argues because there is no evidence that Branson attempted to secure his consent or make any other effort to comply with the law, that he has demonstrated Branson’s actions were willful and/or knowing. In response, Branson sets forth a number of steps it took which it claims demonstrated its good faith and attempts to comply with customers’ Do Not Call requests, such as obtaining copies of Do Not Call lists and purchasing its call lists from third-party vendors who asserted that the telephone numbers listed were only landlines. ¶ Unlike liability under the statute, the issue of treble damages hinges on intent. Alea London Ltd., 638 F.3d at 776. On the evidence before the Court, it is impossible to determine whether or not Branson’s actions were willful or knowing. Accordingly, to the extent Plaintiff seeks treble damages in his summary judgment, that portion of the motion will be denied. If Plaintiff wishes to pursue a claim for treble damages through trial, he must file notice with the Court no later than Wednesday, October 16, 2013. Otherwise, judgment will enter only for the amounts noted herein.