Defendant Uses Call Blocking Data to Help Defend Against Class Certification in TCPA Case

Time Warner Cable has filed a brief opposing class-action certification in a case in which the company is accused of violating the Telephone Consumer Protection Act by making calls using an automated telephone dialing system to individuals’ cell phones without receiving their prior consent.

A copy of the brief in Hunter and Villa v. Time Warner Cable Inc. can be accessed by clicking here.

Time Warner is arguing in its brief that the class can not be certified because it is impossible to determine whether it attempted contacted the wrong person without the proper consent without identifying who answered each phone call placed by the company and the nature of the relationship that each individual has to Time Warner.

In fact, using the methodology proposed by the plaintiffs — comparing the name of an individual purported to be the user of a phone number that was purchased through a third-party service and comparing that name to the name of the customer in Time Warner’s outbound call log for the same number — one of the named plaintiffs would not be a member of the class, the defense pointed out in its brief.

Time Warner also hired an expert to investigate 75 recipients of alleged wrong number calls and the expert determined the methodology used by the plaintiff was inaccurate on 86% of the calls.

The individualized nature of determining whether each wrong number was in fact someone who was not a customer of Time Warner should preclude the judge from certifying the class, the defense argued in its brief.

Interestingly, the defense also incorporates evidence from call-blocking technology to infer that it is impossible to know whether a call that was placed was actually connected. Where the defendant’s records on a handful of calls indicate that a live voice answered the phone, data from First Orion’s PrivacyStar indicates that each of those calls was blocked and never received by the called party.