Treble Damages For “Willful” Or “Knowing” Violations The TCPA provides trebled damages
for knowing or willful violations of the statute or FCC regulations32
. Since a
plaintiff only needs to shown a violation to be willful or knowing, not both, this article will focus on “willful” violations, as the law is clearer, and the burden easier for plaintiffs to prove. In a nutshell, no intent to break the
law, or knowledge of the law, is required to prove an FCC violation was “willful.” To prove that a violation is willful, one need only show that it was not an acci- dent, or due to negligence (i.e. if the telemarketer truly mis-dialed your num- ber by accident).
The 1982 amendments to the 1934 Communications Act provide a statutory definition of “willful” that applies to the entire act. The plain language of the amended statute states unambiguously that “willful” acts do not require intent: The term ‘willful’, when used with
reference to the commission or omis- sion of an act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this chapter or any rule or regulation of the Commis- sion authorized by this chapter or by a treaty ratified by the United States.33 The Congressional purpose behind
32
“If the court finds that the defendant will- fully or knowingly violated this subsection or the regulations prescribed under this sub- section, the court may, in its discretion, in- crease the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.” 47 U.S.C. § 227(b)(3). Very similar language is provided at 47 U.S.C. § 227(c)(5). Once a willful or knowing vio- lation is proven, the court has discretion to award any treble damages.
§ 312(f) is confirmed in the statutory history: “‘willful’ means that the lic- ensee knew that he was doing the act in question, regardless of whether there was an intent to violate the law. . .”34 Congress stated that this statutory defi- nition would control “for any other relevant section of the [1934 Commu- nications] Act,” and that the definitions “are consistent with the Commission’s application of those
3347 U.S.C. § 312(f). 34H.R. Conf. Rep. No. 765, 97th Cong., 2nd
Sess. (1982), 1982 U.S.C.C.A.N. 2261 at 50-51.
terms in Midwest Radio-Television Inc., 45 F.C.C. 1137 (1963).”35 Section 227 is just one of numerous sections of Title 47 of the U.S. Code that contain the word ‘willful’ or ‘willfully,’ and to which the definition in 47 U.S.C. § 312(f) applies.36
It does not matter that
Congress did not specifically define ‘will- fully’ in section 227 or any of these other sections, since Congress already did so in section 312(f), and stated that this defi- nition applies to other sections of the Communications Act.
(Continued on page 14) 35
Id. See also Stanton v. Machiz, 183 F. Supp. 719, 725 (D. Md. 1960) (“But where the statute relates to a civil rather than a crimi- nal penalty the meaning of the word con- notes only voluntary and intentional action as contrasted with accidental.”); and United States v. Illinois Central R. Co., 1938, 303 U.S. 239, 58 S.Ct. 533, 535, 82 L.Ed. 773 (where it was held that the word ‘willful’ did not require proof of an evil intent but that it is sufficient if the failure to act was either intentional or plainly indifferent to the re- quirements of the statute).
36
See 47 U.S.C. §§ 21, 220(e), 227, 303(m)(1), 312(f), 333, 339(a), 362, 386, 501, 502, 503, 507, 510(a), 553, 554(f)(1), 605(e)(1) & (2), 606(h), and 612.
Winter 2003
Trial Reporter
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