United States District Court, D. Connecticut
STEFAN R. UNDERHILL, UNITED STATES DISTRICT JUDGE.
This case arises out of a dispute between a residential telephone subscriber, Michael Simmons, and a telephone and Internet communications provider, Charter Communications, Inc. (“Charter”). Simmons contends that Charter violated the Telephone Consumer Protection Act (“TCPA”) by placing four telephone calls to Simmons over the course of a two-week period. Specifically, Simmons alleges that Charter violated 47 C.F.R. § 64.1200(c) by calling him notwithstanding the fact that his phone number was listed on the national do-not-call (“DNC”) registry. Simmons also alleges that Charter violated 47 C.F.R. § 64.1200(d) by failing to establish and implement procedures required by the TCPA prior to the initiation of telemarketing calls.
Charter moves for summary judgment (doc. # 39). In its memorandum in support of its motion, Charter argues that it is not liable under the TCPA because it meets the regulatory safe harbors provided in 47 C.F.R. §§ 64.1200(c)(2)(i) and 64.1200(d).
Though I will examine the so-called “safe harbors” in my discussion regarding Simmons’ oral motion to amend his complaint, I need not reach them in ruling on the instant motion for summary judgment. I do not need to address Charter’s arguments in support of summary judgment because facts elicited at oral argument make it clear that Simmons’ theory of liability fails as a matter of law.
I. Standard of Review
Summary judgment is appropriate when the record demonstrates 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(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment).
When ruling on a summary judgment motion, the court must construe the facts of record in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d. 520, 523 (2d Cir.), cert. denied, 506 U.S. 965 (1992) (court is required to “resolve all ambiguities and draw all inferences in favor of the nonmoving party”). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or denials of his pleadings, but must present sufficient probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
“Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits evidence that is “merely colorable, ” or is not “significantly probative, ” summary judgment may be granted. Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.
Id. at 247-48. To present a “genuine” issue of material fact, there must be contradictory evidence “such that a reasonable jury could return a verdict for the non-moving party.” Id. at 248.
If the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof at trial, then summary judgment is appropriate. Celotex, 477 U.S. at 322. In such a situation, “there can be ‘no genuine issue as to any material fact, ’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322-23; accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant’s burden satisfied if he can point to an absence of evidence to support an essential element of nonmoving party’s claim). In short, if there is no genuine issue of material fact, summary judgment may enter. Celotex, 477 U.S. at 323.
Michael Simmons filed the instant action against Charter Communications, Inc., on March 3, 2015. On June 26, 2015, he filed an amended complaint. See Doc. # 23. In Count I of the amended complaint, Simmons alleged that Charter violated the TCPA by using an automatic telephone dialing system (“ATDS”) in violation of 47 U.S.C. § 227(b). In Count II, Simmons alleged that Charter violated section 227(c) of the TCPA by failing to comply with the regulations set forth in 47 C.F.R. §§ 64.1200(c) and (d). On November 6, 2015, the parties stipulated to the dismissal of Count I of the amended complaint. Thus, Count II is the only remaining claim.
In order to give context to Simmons’ remaining claim, it is necessary to begin with a discussion of how Charter came to possess Simmons’ telephone number. At some point prior to the events that give rise to this law suit, Charter attempted to place a call to one of its current customers, Sophie Simmons. Sophie had provided her telephone number to Charter at an earlier date. When Charter attempted to contact that number, Charter realized that it was no longer a “functioning phone number.” Def.’s Local Rule 56(a)(1) Stmt. (“DLR”) at ¶ 3. Unable to reach an existing customer, Charter attempted to locate her new contact information. To assist in locating Sophie, Charter employed the services of a vendor, Relevate, which specializes in locating individuals’ contact information. Such a vendor is often referred to as a “skip-tracer.” Charter employed the services of Relevate in order to ascertain Sophie’s contact information.
After undertaking an investigation into Sophie’s whereabouts, the skip-tracer provided Charter with a phone number-that we now know belongs to Simmons-which it believed belonged to Sophie. Before calling Sophie, Charter employed the services of another vendor, PossibleNow, which specializes in a service called “scrubbing.” DLR at ¶¶ 7-8. The purpose of “scrubbing” is to identify phone numbers that appear on state and national DNC lists so that Charter does not inadvertently call those numbers in violation of the TCPA. See Id. As part of that process, PossibleNow also identifies numbers that it determines are associated with a consumer who has an existing business relationship with Charter. Id. at ¶¶ 13-14. PossibleNow does not remove those numbers because, under the TCPA, Charter is legally permitted to call existing customers notwithstanding the fact that their number is on a DNC list. Id. at ¶ 25.
During the “scrubbing” process, PossibleNow identified Simmons’ number as a number on the national DNC registry. Id. However, based on information provided to Charter by Relevate, it also was identified as belonging to Sophie Simmons, someone with whom Charter has an existing business relationship. Accordingly, Simmons’ number was listed as a number to which Charter could place a call.
Once Charter believed it had the authority to call Simmons’ phone number, Charter sent the number to Empereon Marketing (“Empereon”), a telephone marketing company that places calls on Charter’s behalf. Empereon is a company in the business of providing telemarketing services. It has extensive policies regarding compliance with the national DNC registry and internal DNC requests generated as a result of an individual’s request not to be called. DLR at ¶¶ 20-24; Def.’s Ex. O. In addition to its own policies, Empereon has a contract with Charter, which sets forward additional safeguards regarding compliance with DNC requests. DLR at ¶ 20.
On January 9, 2015, Empereon placed a call to Simmons’ phone number in an attempt to reach Sophie Simmons. During the first call, on January 9, 2015, Simmons informed the Empereon telemarketer that he did not consent to being recorded and then hung up. That same day, Simmons called Empereon back in order to object to his voice being recorded and to request that Charter refrain from calling him. See Pl.’s Local Rule 56(a)(2) Stmt. (“PLR”) at 26. Charter disputes that Simmons made a do-not-call request on that date. DLR at ¶ 31. However, that fact is immaterial.
Thereafter, Empereon placed three more calls to Simmons. The first two went to voicemail. The final one, on January 20, 2015, reached Simmons. During that call, Simmons again requested that he not be called by or on behalf of Charter. DLR at ¶ 35. By January 24, 2015, Simmons’ phone number had been placed on Charter’s internal DNC list.
Though often overlooked in the parties’ papers, it is important to remember that Charter did not place a single call to Simmons. Rather, Empereon, a telephone marketing company, placed each call to Simmons on Charter’s behalf.
Michael Simmons filed this action in accordance with the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Section 227(c) grants a private right of action for individuals who have received a phone call (or calls) in violation of the various regulations promulgated by the Federal Communications Commission (“FCC”). 47 U.S.C. § 227(c)(5). In his remaining claim, Simmons alleges that he received a telephone solicitation made by, or on behalf of, Charter, in violation of 47 C.F.R. §§ 64.1200(c), (d), and (e).
Charter responds by asserting that it is not liable under section 227(c) because it has demonstrated compliance with the safe harbor provision set forth in section 64.1200(c), and has the requisite policies and procedures to avoid liability under section 64.1200(d).
A. Applicable Law
Congress enacted the TCPA on December 20, 1991, to address telephone marketing calls and certain telemarketing practices that Congress found to be an invasion of consumer privacy. Section 227(c) creates a private right of action for any “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 . . . .” 47 U.S.C. § 227(c)(5). The party may file a suit to enjoin future violations and/or “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. at § 227(c)(5)(A)-(C). The statute also provides an affirmative defense if a defendant can prove that it has “established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection.” Id. at § 227(c)(5).
The FCC is vested with authority to issue regulations implementing the TCPA. See 47 U.S.C. § 151. In 2003, the Federal Trade Commission (“FTC”) and the FCC jointly promulgated rules that together created the national DNC registry. See Mainstream Mktg. Servs., Inc. v. F.T.C., 358 F.3d 1228, 1234 (10th Cir. 2004). The registry contains the telephone numbers of individual telephone subscribers who have indicated that they do not wish to receive unsolicited telephone calls from commercial telemarketers. See Id. Telemarketers are prohibited from calling those individuals and are forced to comply with certain practices in order to ensure that they honor the individuals’ DNC requests. See id.
Section 64.1200(c) sets forth, inter alia, the prohibitions regarding calling individuals on the national DNC registry. 47 C.F.R. § 64.1200(c)(2). It provides that a DNC request “must be honored indefinitely, or until the registration is cancelled by the consumer or the telephone number is removed by the database administrator.” Violation of this subsection subjects a telemarketer to liability under 47 U.S.C. § 227(c)(5).
A defendant can avoid liability for calling an individual on the DNC registry if it can show that (1) it called the individual by accident, and (2) it has established adequate procedures in order to avoid mistakenly calling individuals on the registry. 47 U.S.C. § 64.1200(c)(2)(i). Courts have referred to subsection (c)(2) as one of the TCPA’s “safe harbor” provisions. United States v. Dish Network LLC, 75 F.Supp.3d 916, 925 (C.D. Ill. 2014).
In order to show that its standards are adequate, the following procedures must be in place:
A) Written procedures. It has established and implemented written procedures to comply with the ...