United States District Court, S.D. New York
[Copyrighted Material Omitted]
For Araceli King, Plaintiff: Jenny Diane DeFrancisco, Sergei Lemberg, Vlad Hirnyk, Lemberg & Associates L.L.C., Stamford, CT.
For Time Warner Cable Inc., Defendant: Charles Dewey Cole, Jr, LEAD ATTORNEY, Newman Myers Kreines Gross Harris, P.C., New York, NY.
ORDER AND OPINION DENYING STAY AND GRANTING SUMMARY JUDGMENT
ALVIN K. HELLERSTEIN, United States District Judge.
Plaintiff Araceli King brings this action against Defendant Time Warner Cable for violations of the Telephone Consumer Protection Act of 1991 (" TCPA" ), 47 U.S.C. § 227 et seq. King alleges that Time Warner placed 163 automated or prerecorded calls to her cellular phone without her consent and seeks statutory damages of $81,500, before trebling. On May 7, 2015, Time Warner moved to stay the trial, currently scheduled to begin on July 27, 2015, until after the Federal Communications Commission (" FCC" ) issues interpretive guidance on the definition of " called party" under the statute. On June 23, 2015 Plaintiff moved for summary judgment, and on July 2, 2015, Defendant cross-moved. For the following reasons, the motion to stay is denied, Plaintiff's motion for summary judgment is granted in part, and Defendant's motion for summary judgment is granted in part.
The TCPA, passed in response to " [v]oluminous consumer complaints about abuses of telephone technology" such as " computerized calls dispatched to private homes . . . bans certain invasive telemarketing practices." Mims v. Arrow Fin. Servs., LLC, 132 S.Ct. 740, 744, 181 L.Ed.2d 881 (2012). Relevant to this case, the statute prohibits any person from " mak[ing] any call (other than . . . with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . ." 47 U.S.C. § 227(b)(1)(A). The statute defines " automatic telephone dialing system"
(" ATDS" ) as " equipment which has the capacity--(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." Id. § 227(a)(1). The TCPA creates a private right of action for affected consumers, and allows them to recover the greater of their actual monetary loss or $500 for each violation. Id. § 227(b)(3). It also allows the district court to increase the award up to treble statutory damages if it finds the defendant's violation was willful or knowing. Id.
Time Warner Cable (" TWC" ) is a national cable telecommunications company based in New York City. Araceli King is a Texas resident and a long-time customer of TWC. When customers sign up with TWC, they must agree to the company's terms of service, which include, in relevant part, the following:
We may call any number you provide to us (or that we issue to you) for any purpose, including marketing of our Services . . . . However, if you ask to have your number placed on our " do not call" list, we will not call you at that number for marketing purposes . . . .We may use automated dialing systems or artificial or recorded voices to call you.
Time Warner Cable Residential Services Subscriber Agreement § 12(c), Zitko Decl. p. 14.
As part of its business, TWC operates an " interactive voice response" calling system (" IVR" ) which it uses, among other things, to advise customers that their accounts are more than 30 days past due. The system automatically references TWC's billing records to determine which customers are more than 30 days late on their payments, and then dials the number associated with their accounts. If the customer answers the call, the IVR system will not call that customer's number until the following day or, if the customer pays the outstanding balance, it will not call until the account again falls more than 30 days behind. If the customer does not answer the call, the IVR system will leave a voicemail and attempt to call back up to two additional times that day. Regardless of whether the call is answered by the customer or the customer's voicemail, the IVR system plays a recorded message.
Araceli King subscribes to the telephone number (915) 861-0528 through the cellular carrier Sprint and provided her cellular number to TWC in connection with her service. Between July 3, 2013 and August 11, 2014, King alleges that she received 163 phone calls from TWC using the IVR system. Each time she answered or listened to the resulting voicemail, a recorded message indicated that it was seeking " Luiz Perez."  Perez, the parties agree, is an unrelated customer who had opened an account with TWC in February 2012 using the same phone number that Sprint later assigned to King. King represents that she did not consent to any of the calls. She also asserts that 153 of the calls were " willful or knowing" TCPA violations subject to treble damages because they came after October 3, 2013, when King answered a call and, in a seven minute conversation, " told a TWC representative that she was ...