Mey v. Monitronics Int'l, Inc.

• Decision Date: 14 August 2013
• Docket Number: Civil Action No. 5:11CV90.
• Citation: 959 F.Supp.2d 927
• Parties: Diana MEY, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff, v. MONITRONICS INTERNATIONAL, INC., Versatile Marketing Solutions, Inc., doing business as VMS Alarms, and UTC Fire and Security Americas Corp., Inc., Defendants.
• Court: U.S. District Court — Northern District of West Virginia

959 F.Supp.2d 927

Diana MEY, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff,

v.MONITRONICS INTERNATIONAL, INC., Versatile Marketing Solutions, Inc., doing business as VMS Alarms, and UTC Fire and Security Americas Corp., Inc., Defendants.

Civil Action No. 5:11CV90.

United States District Court,

N.D. West Virginia.

Aug. 14, 2013.

Edward A. Broderick, Law Offices of Edward R. Broderick, Boston, MA, John W. Barrett, Jonathan R. Marshall, Bailey & Glasser LLP, Charleston, WV, Matthew P. McCue, Law Office of Matthew P. McCue, Framingham, MA, for Plaintiff.

Benjamen S. Dyer, Margaret Carlson, Culp & Dyer, L.L.P., Denton, TX, Clifford F. Kinney, Jr., John R. Teare, Jr., Niall A. Paul, Spilman, Thomas & Battle, PLLC, Charleston, WV, Gordon H. Copland, Steptoe & Johnson, PLLC, Bridgeport, WV, Jeffrey A. Holmstrand, Flaherty Sensabaugh Bonasso, PLLC, Christina S. Terek, Spilman Thomas & Battle PLLC, Kristen Andrews Wilson, Steptoe & Johnson, PLLC, Wheeling, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

IRENE M. KEELEY, District Judge.

Pending before the Court are the motions for summary judgment of Monitronics International, Inc. (“Monitronics”) and UTC First and Security Americas Corp., Inc. (“UTC”). (Dkt. Nos. 93, 95). For the reasons that follow, the Court DENIES the motions.

I.

The plaintiff, Diana Mey (“Mey”) claims that Versatile Marketing Solutions, Inc. (“VMS”), acting on behalf of Monitronics and UTC, telephoned her nineteen times between November 16, 2009 and July 11, 2011, despite the fact that she had listed her telephone number on the national Do Not Call Registry (the “DNC Registry” or the “Registry”) in 2003. (Dkt. No. 13). Mey alleges that these calls violated the Telephone Consumer Protection Act's (“TCPA,” or the “Act”) prohibition against calls to DNC registrants, 47 U.S.C. § 227(c), and that, even though Monitronics and UTC did not physically place the calls themselves, they are vicariously liable under that statute because VMS placed the calls on their behalf. (Dkt. No. 13 at 5).

On January 31, 2012, Monitronics and UTC each filed motions for summary judgment on the issue of whether the phrase “on behalf of,” found in § 227(c)(5), exposed them to TCPA liability when there was no dispute that they did not physically place the calls to Mey themselves. (Dkt. Nos. 34, 35). Mey responded to both motions on February 21, 2012 (dkt. no. 103), and Monitronics and UTC replied on March 6, 2012. (Dkt. Nos. 113, 114). Then, on May 4, 2012, the Court stayed the case after being advised that the Federal Communications Commission (“FCC”) would soon issue a Declaratory Ruling on the issue of the extent “on behalf of” liability under the TCPA. (Dkt. No. 127).

Concerned that the stay—a year long—was becoming prejudicial, the Court lifted it on May 9, 2013. (Dkt. No. 159). Coincidentally, that same day, the FCC released its anticipated Declaratory Ruling. See Dish Network, LLC, 28 F.C.C.Rcd. 6574 (the “FCC's Declaratory Ruling” or the “Ruling”). The Court then invited supplemental briefing as to the effect of the Ruling, which the parties filed on June 3, 13, and August 9, 2013. (Dkt. Nos. 162, 163, and 164). Considering the six rounds of briefing and the fulsome guidance found in the Ruling, UTC and Monitronics' motions are certainly fully briefed and ripe for disposition.

II.

Summary judgment is appropriate where the “depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials” show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c)(1)(A), (a). When ruling on a motion for summary judgment, the Court reviews all the evidence “in the light most favorable” to the nonmoving party. Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.2000). The Court must avoid weighing the evidence or determining the truth and limit its inquiry solely to a determination of whether genuine issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of informing the Court of the basis for the motion and of establishing the nonexistenceof genuine issues of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has made the necessary showing, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505 (internal quotation marks and citation omitted). The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the evidence must be such that a rational trier of fact could reasonably find for the nonmoving party. Id. at 248–52, 106 S.Ct. 2505.

III.

The appropriate breadth of liability under the TCPA lies at the heart of Monitronics and UTC's motions. Therefore, some background about the Act is helpful prior to considering the particular circumstances of this case.

A. The Act

The TCPA was enacted in response to “[v]oluminous consumer complaints about abuses of telephone technology.” Mims v. Arrow Financial Services, LLC, ––– U.S. ––––, 132 S.Ct. 740, 744, 181 L.Ed.2d 881 (2012). In Mims, the Supreme Court summarized Congress' findings on the matter:

In enacting the TCPA, Congress made several findings ... “Unrestricted telemarketing,” Congress determined, “can be an intrusive invasion of privacy.” TCPA, 105 Stat. 2394, note following 47 U.S.C. § 227 (Congressional Findings) (internal quotation marks omitted).In particular, Congress reported, “[m]any consumers are outraged over the proliferation of intrusive, nuisance [telemarketing] calls to their homes.” Ibid. (internal quotation marks omitted).

The TCPA is a remedial statute and thus entitled to a broad construction. See, e.g., Holmes v. Back Doctors, Ltd., 695 F.Supp.2d 843, 854 (S.D.Ill.2010) (“It is true that ... the TCPA is a remedial statute.”). As such, it “should be liberally construed and should be interpreted (when that is possible) in a manner tending to discourage attempted evasions by wrongdoers.” Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253, 258 (4th Cir.1950). At the same time, a remedial purpose “will not justify reading a provision ‘more broadly than its language and the statutory scheme reasonably permit.’ ” Touche Ross & Co. v. Redington, 442 U.S. 560, 578, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (quoting SEC v. Sloan, 436 U.S. 103, 116, 98 S.Ct. 1702, 56 L.Ed.2d 148 (1978)).

Mey claims that VMS, acting “on behalf of” Monitronics and UTC telephoned her numerous times in violation of 47 U.S.C. § 227(c)(5). That subsection states, in relevant part:

A person who has received more than one telephone call within any 12–month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State—

(A) an action based on a violation of the regulations prescribed under this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation, whichever is greater....

Id. (emphasis added).

Section 64.1200(c)(2)of Title 47 of the Code of Federal Regulations prohibits any “person or entity” from “initiat[ing] any telephone solicitation to ... [a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations....” Section 64.1200(c)(2) defines the term “seller” as “the person or entity on whose behalf a telephone call or message is initiated for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(9).

B. Early cases

Neither the TCPA nor its associated regulations define “on behalf of,” but courts that have considered the issue have applied principles of agency to determine when entities are liable for calls made by third parties. Some of these courts have relied upon the laws of the states in which they sit, while others have applied a more general agency analysis, resulting in a variety of approaches to determining the reach of “on behalf of” liability. See, e.g., United States v. Dish Network, LLC, 667 F.Supp.2d 952, 963 (C.D.Ill.2009) (holding that strict agency relationship is not required if entity plausibly could have benefitted from calls made by third party); Charvat v. EchoStar Satellite, 676 F.Supp.2d 668, 675 (S.D.Ohio 2009) (applying Ohio law to determine whether entities had sufficient control over third parties who made calls); Applestein v. Fairfield Resorts, No. 0004, 2009 WL 5604429 (Md.Ct.App. July 8, 2009) (examining the “totality of circumstances” surrounding the parties' relationship).

The United States Court of Appeals for the Sixth Circuit recently recognized this lack of uniformity in Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 466 (6th Cir.2010). There, the plaintiff, Phillip Charvat (“Charvat”), like Mey, sued an entity, EchoStar Satellite, LLC (“EchoStar”), that did not place illegal calls to him, but whose independent contractors did. The Sixth Circuit concluded that EchoStar's liability turned on the meaning of “on behalf of” in § 227(c)(5), but that the phrase was ambiguous:

Does § 227(c)(5) create liability for entities on whose behalf calls are made even when the calls are placed by independent contractors rather than by agents or employees? And does § 225(c)(5) create liability for entities on whose behalf calls are made even though the section is labeled only as a private right of action and even...