Tuesday, January 25 2022

On January 6, 2021, the District of Maryland denied a TCPA claim (and a derivative claim under the Maryland MDTPCA) against Discount Power, Inc. (“Discount”). See Worsham v. Discount Power, Inc., n. 20-0008, 2021 WL 50922 (D. Md. January 6, 2021). The decision is a useful reminder that the purpose of a number can be a critical component of a TCPA request and that respondents should therefore develop that fact during preliminary investigation and, if necessary, during formal discovery.

The court noted that the plaintiff – a former lawyer named Michael Worsham disbarred in 2015 – is now a frequent pro se actor. In this action, he alleged that Discount had violated Section 227 (b) and (c) by making seven automated calls to a landline number that was on the DNC national registry.

The court rejected both cases of liability. As regards Worsham’s ATDS application, the Court held that, while having concluded conclusively that the calls “were all initiated and made with a [ATDS] as defined by 47 USC § 227 (a) (1), “he had not inferred any fact from which a court concluded that this was indeed the case. Worsham, 2021 WL 50922, a * 3. And regarding his DNC request, the Court similarly found that he had not claimed that his number was a “residential” number under Section 227 (a). In a previous lawsuit, Worsham repeatedly claimed that the same number was his former law firm’s line of business. “Where there is clear evidence that a cell phone line is used solely or primarily as a business line,” the court noted, “the courts have issued a summary judgment to the defendants.” ID. (quoting Smith v. Truman Road Development, LLC, no. 18-0670, 2020 WL 2044730, a * 11 (WD Monday, April 28, 2020); Mattson v Quicken Loans Inc., n. 18-0989, 2019 WL 7630856, a * 5 (D. Or. 7 November 2019)). Also, setting aside whether the number was “residential”, Worsham had not determined that the number was properly listed on the DNC, such that telemarketing calls to the number would violate 47 CFR § 64.1200 (c) (2). The court noted that this number was publicly available because it was registered with PACER and that corporate numbers are not allowed on the DNC. As such, there could be no violation of the TCPA or MDTCPA based on Worsham’s allegations.

Interestingly, Worsham also claimed that Discount had violated TCPA and FCC regulation 47 CFR § 64.1200 (d) (4), which requires telemarketers to “provide the called party with the name of the individual caller, the name of the person or entity. on whose behalf the call is made and the telephone number or address at which the natural or legal person can be contacted. ”The Court also rejected this theory of liability, noting that there is no private right of action in regarding an alleged violation of 47 CFR § 64.1200 (d) (4) and, by extension, the MDTCPA. Worsham, 2021 WL 50922, a * 4.

© 2022 Faegre Drinker Biddle & Reath LLP. All rights reserved.Review of National Law, Volume XI, Number 19

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