Charvat v. Atw, Inc.

Citations: 712 N.E.2d 805; 127 Ohio App. 3d 288; 1998 Ohio App. LEXIS 1709Docket: No. 97APG09-1163.

Court: Ohio Court of Appeals; April 21, 1998; Ohio; State Appellate Court

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Philip J. Charvat appeals a judgment from the Franklin County Municipal Court, Small Claims Division, which awarded him $500 for violations of the Telephone Consumer Protection Act (TCPA), specifically Section 227(c)(5) of Title 47, U.S. Code. The case was tried on October 31, 1997, where a magistrate ruled partially in Charvat's favor and awarded the stated amount, along with court costs and interest. Charvat objected, asserting he was entitled to $2,000 in damages due to multiple violations. On August 14, 1997, the court dismissed his objections and upheld the magistrate's findings.

Charvat's appeal includes two main errors: first, the trial court allegedly failed to award damages for violations noted during the defendant's initial call; second, the trial court improperly accepted the defendant's statutory affirmative defense against Charvat’s claims, arguing that the defendant did not meet the necessary legal burdens to sustain such a defense.

Charvat's lawsuit is based on a private right of action under the TCPA, which allows individuals to seek damages for receiving multiple unsolicited calls from the same entity within a year. The TCPA regulations prohibit telephone solicitations to residential subscribers unless the entity has a do-not-call policy, properly trains personnel, and maintains a do-not-call list that must be honored for ten years. These regulations outline the requirements for a valid do-not-call list and the obligations of entities making solicitation calls.

Two telemarketing calls made to Charvat by ATW, Inc. prompted this case. The first call occurred on January 9, 1996, when telemarketer Jim attempted to sell windows. Charvat requested not to be called again and asked for ATW's do-not-call policy, which Jim failed to send after arguing with Charvat. On July 16, 1996, another telemarketer, Michael, called Charvat. Despite Charvat's request not to receive further calls, Michael indicated he would place Charvat on the do-not-call list but could not send the policy himself. ATW mailed the policy on July 22, 1996, which the magistrate deemed a timely response. The magistrate determined that ATW did not willfully violate the statute during the second call and noted that Charvat suffered no monetary loss from it. However, the magistrate concluded that ATW violated Section 227(c)(5) of Title 47, U.S. Code, by not honoring Charvat's request from the first call. Charvat's claims for damages related to the first call were rejected, as ATW had not made more than one call within a 12-month period at that time. Charvat argued for damages based on multiple alleged violations during the first call, referencing the statutory provision allowing damages for each violation. However, the trial court upheld that Charvat could not recover for violations prior to the second call, interpreting the statute to mean that an action can only be brought for violations occurring after receiving multiple calls within the specified period.

Judge Taylor clarified that the term "in violation of the regulations prescribed under this subsection" pertains specifically to "telephone call," establishing that the actionable violation arises only after a second call is made following a do-not-call request. The statute aims to prevent repeated telemarketing calls once a consumer has expressed a desire not to be contacted. A private right of action only emerges if a telemarketer calls a consumer more than once within a twelve-month frame after receiving a do-not-call request. The court rejected Charvat's argument that all calls from the first onward are compensable once a second call occurs. A valid violation requires that the telemarketer be informed of the consumer's wishes before the second call can be deemed a violation. Regulations mandate that telemarketers must maintain do-not-call requests for ten years. Charvat's first assignment of error regarding the nature of violations was overruled, as was his second assignment concerning treble damages due to a lack of evidence of willful or knowing violations. Consequently, the Franklin County Municipal Court's judgment was affirmed.