Irvine v. Akron Beacon Journal
| Decision Date | 08 May 2002 |
| Docket Number | No. 20450 and 20524.,20450 and 20524. |
| Citation | 770 NE 2d 1105,147 Ohio App.3d 428 |
| Parties | IRVINE et al., Appellees and Cross-Appellants, v. AKRON BEACON JOURNAL et al., Appellants and Cross-Appellees. |
| Court | Ohio Court of Appeals |
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Ronald S. Kopp, Stephen W. Funk and Alisa L. Wright, for appellants and cross-appellees.
Edward L. Gilbert, for appellees and cross-appellants.
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{¶ 1} Appellant, Akron Beacon Journal ("Beacon Journal"), appeals from a judgment of the Summit County Court of Common Pleas that awarded compensatory and punitive damages to appellees, Edward and Geneva Irvine, on their claims against Beacon Journal for invasion of privacy and for violations of the Telephone Consumer Protection Act. Beacon Journal also appeals from a postjudgment order that awarded attorney fees to the Irvines. The Irvines appeal from another order of the trial court that stayed the judgment but did not require Beacon Journal to post a bond. We affirm in part and reverse in part.
{¶ 2} On October 5, 1999, the Irvines filed this action against Beacon Journal, one of its reporters, one of its photographers, and members of its editorial staff, alleging statutory and tort claims based upon alleged newsgathering and telemarketing activities by the defendants. The matter commenced to a jury trial, which revealed the following facts underlying the Irvines' claims.
{¶ 3} Because these claims are not at issue in this appeal, the underlying facts will be detailed only briefly. Mr. Irvine is the former chief of the Akron Police Department. During October 1998, Mrs. Irvine was treated for injuries at a local hospital and, while there, made allegations that her husband had caused her injuries. Mrs. Irvine later recanted her statements. This incident led to, among other things, a criminal investigation, an internal investigation by the police department, and several articles in the Beacon Journal about the allegations of domestic abuse and the subsequent investigations into those allegations. During this period, Mrs. Irvine went to Louisiana to stay with her sister. In an attempt to get Mrs. Irvine's side of the story, Beacon Journal attempted to contact Mrs. Irvine while she was in Louisiana. The Irvines' complaint alleged that the actions taken by Beacon Journal reporters and others constituted an invasion of Mrs. Irvine's privacy.
{¶ 4} The bulk of this appeal focuses on Beacon Journal's telemarketing practice, and its impact on the Irvines, during the spring and summer of 1999. During the summer of 1999, the Irvines' household was receiving numerous "hang-up" telephone calls. Because the caller identification indicated only that these calls came from a private line, Chief Irvine was unable to determine the source of the calls. Consequently, he filed a criminal telephone harassment complaint, and Ameritech placed a trap on the Irvines' phone line. The Ameritech trap revealed that several of the hang-up calls that the Irvines had received had come from Beacon Journal's telemarketing department. Three of those calls rang into the Irvines' home during early morning hours. Due to the volume of such calls that the Irvines allegedly had received, and because they believed that some of the calls violated the federal Telephone Consumer Protection Act, the Irvines added claims to their complaint based on the federal Act and common law invasion of privacy.
{¶ 5} During the relevant period of time, Beacon Journal's telemarketing department was equipped with an automatic dialing machine that would be programmed to dial specific telephone numbers. During business hours, the autodialer was used to maximize the productivity of Beacon Journal's sales force. With Beacon Journal's emphasis on productivity, there were many ways by which solicitation targets might receive "hang-up" calls from its telemarketing department. Rather than having a sales representative waste time making calls that would not result in a connection with a potential subscriber, the autodialer was used to call multiple telephone numbers at once. The autodialer would call two phone numbers for every sales representative working and would connect the calls to a sales representative only after someone answered at the other end. If the call was not answered within the first three rings, the autodialer dropped it. The recipient of such a call would be able to identify the call only as a hang-up call, unidentifiable by their caller ID.
{¶ 6} If the autodialer made multiple connections at the same time, there was sometimes no sales representative available to take the call. In those situations, the autodialer would hang onto the call for a short period of time in case a sales representative became available. If no sales representative became available within a set period of time, the call was dropped. A person answering such a call would hear nothing but dead air and a hang up. The autodialer would place the telephone number for such a "dropped call" back on the dialing list and call it again later. A specific telephone number could potentially be called numerous times before an actual connection with a sales representative was made.
{¶ 7} During this period, Beacon Journal's subscription sales force heavily targeted two particular groups of relevance here: former subscribers and newly connected telephone numbers. Beacon Journal attempted to win back its former subscribers by calling them "as much as possible" during the first weeks after cancellation of a subscription. Beacon Journal's telemarketers also focused on newly connected telephone numbers because those telephone numbers potentially belonged to new members of the community who were typically good prospects for newspaper subscription sales.
{¶ 8} Beacon Journal compiled a list of newly connected telephone numbers through the following process. Every weekend, after the regular sales calls were made, Beacon Journal programmed its autodialer to dial the "disconnect list," a list of telephone numbers that Beacon Journal previously had determined were not working telephone numbers. The autodialer would call the telephone numbers from the preprogrammed disconnect list and record one of two things: (1) a three-toned signal, indicating that the number remained disconnected, or (2) a ring, indicating that the number had been reconnected and was currently a working telephone number. Either way, once the autodialer detected one of those two sounds, it recorded the information and dropped the call. Even if the call was answered, the call was not connected to a sales representative because they were not working at the time.
{¶ 9} If the disconnect list was programmed into the autodialer properly and the autodialer was working properly, each telephone number on the list would be called only once, and the machine would record whether that number remained disconnected or whether it was a newly connected number.
{¶ 10} During the spring and summer of 1999, the Irvines inadvertently became targets of Beacon Journal's telemarketing department for two reasons. During the spring of 1999, the Irvines canceled their subscription to the Sunday Beacon Journal. Consequently, they received numerous calls from the telemarketing department in an attempt to win back their business. According to the testimony of Chief Irvine, Beacon Journal also called him numerous times before the subscription expired, seeking a renewal order.
{¶ 11} According to Chief Irvine, in an attempt to avoid annoying calls from the Beacon Journal and unidentified hang-up calls, he had their telephone number changed to a new, unlisted telephone number on June 22, 1999. Unfortunately for the Irvines, however, because their new phone number was a formerly disconnected number, changing the phone number merely set them up for additional telemarketing calls from Beacon Journal. Thus, even if everything had been working properly with Beacon Journal's telemarketing system, the Irvines had unknowingly become targets for numerous unsolicited calls.
{¶ 12} Beacon Journal's telemarketing system apparently was not working properly during the spring and summer of 1999, and many of the problems with the system directly impacted the Irvines. The computerized system crashed often, causing it to lose data. When data were lost, the autodialer would revert to the beginning of the preprogrammed list and call the telephone numbers again. The Irvines apparently received many calls for this reason.
{¶ 13} Other calls placed in violation of the federal Act, however, were due to human error. After business hours on two nights during late June and early July 1999, because the autodialer had not worked properly during its usual time for running the disconnect list, Beacon Journal set the machine to run all night. The list of newly connected numbers was a very important list to the telemarketing department. Beacon Journal's circulation sales manager was not willing to wait until the following weekend to run the disconnect list, apparently worried that Beacon Journal would potentially lose several subscription sales.
{¶ 14} During those two nights, the autodialer called the Irvines' telephone number a total of three times. In addition to the three late night calls, the Irvines' number was called on the disconnect list several other times. One call should have been enough for the computer to detect a ring and determine that the Irvines' number was a newly connected number. One Beacon Journal telemarketing person attempted to explain why the Irvines' number was called repeatedly. He opined that the number might have been inadvertently programmed into the system more than once and/or that the computer crashed...
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