In Whatley v. Creditwatch Services, Ltd., 2014 WL 1287174 (E.D.Tex. 2014), Judge Schell declined to increase Plaintiff’s TCPA damages based on willfulness due to uncertainty in the law at the time as to whether consent could be revoked.
Plaintiffs ask the court to award him $24,000, which amounts to treble damages for each of Defendant’s sixteen violations of the TCPA. Plaintiff contends that Defendant knowingly and willfully violated the TCPA because Defendant intentionally called Plaintiff’s cell phone using an ATDS or artificial or prerecorded voice. Defendant counters that its actions were not knowing and willful because at the time it contacted Plaintiff using an ATDS or artificial or prerecorded voice, it did not know that its actions constituted a violation of the statute. ¶ Courts are divided as to what constitutes a willful or knowing violation of the TCPA. One line of cases requires a defendant to know that its actions are a violation of the statute. A second line of cases holds that a defendant does not need to know that its actions violate the statute, only that the defendant intention-ally act in a way that violates the statute. At least one court has held that to commit a knowing violation a defendant must know that his conduct violates the statute, but to commit a willful violation the defendant only must act intentionally. [FN5 FN5. See In re Monitronics Int’l, Inc., Tel. Consumer Prot. Act Litig., 5:11–CV–90, 2014 WL 316476, at *5 (N.D.W.V. Jan. 28, 2014) (collecting cases).] ¶ Under 47 U.S.C. § 227(b)(3)(B), a plaintiff can recover $500 in damages for a defendant’s violation of the statute without regard to the defendant’s state of mind in committing that violation. An award of damages under Subsection (B) is not discretionary. Subsection (C) allows the court to increase the award for a violation that is made “knowingly or willfully” up to treble the amount of statutory damages awarded under Subsection (B). The separation of these two paragraphs and the increased penalty to be awarded in the court’s discretion suggests that in order to commit a violation of the TCPA “knowingly or willfully” the defendant must have had some more egregious state of mind when it violated the statute that would warrant an increased award of damages. This court agrees with the line of cases that hold that a defendant must know that its actions are a violation of the TCPA in order to commit a knowing or willful violation of the statute that warrants an award of treble damages. [FN7 See also Mfrs. Auto Leasing, Inc. v. Autoflex Leasing, Inc., 139 S.W.3d 342, 346 (Tex.App.–Fort Worth 2004, pet. denied) (holding that “the TCPA is willfully or knowingly violated when the defendant knows of the TCPA’s prohibitions, knows he does not have permission to send a fax ad to the plaintiff, and sends it anyway”).] ¶ Defendant argues that at the time these violations occurred, courts were split on the issue of whether under the TCPA an individual’s prior express consent to be contacted on a cellular phone could be revoked at all, and if so, if it could be revoked orally or must be revoked in writing. In its brief on the issue, Defendant points out that “[a]t the time of the calls, three (3) opinions had been issued, and the first two (2) deciding that consent could only be revoked in writing and the latter that consent may be revoked orally.” FN8 The statute itself is silent on the issue of how prior express consent, once given, may be revoked. Defendant argues that under these circumstances, it would have been impossible for Defendant to know it was violat-ing the statute and therefore, it did not commit a willful and knowing violation that would merit an award of treble damages to Plaintiff. The court agrees. In addition to inexactitude of the statute and the disa-greement among courts, there was no evidence put forth in this case that would indicate that Defendant in fact acted knowingly or willfully in violation of the TCPA.