In Lary v. Trinity Physician Fin. & Ins. Servs., et al., Case No. 14-11036, the Eleventh Circuit narrowly interpreted the "willfully or knowingly" provision of the Telephone Consumer Protection Act ("TCPA"), which gives rise to treble damages. In Lary, the plaintiff filed a pro se complaint alleging that the defendants sent a fax containing a commercial advertisement to a number connected to an emergency telephone line for the plaintiff's medical practice. Plaintiff sought statutory damages of $1,500 per violation of the TCPA and a permanent injunction. In finding that plaintiff was not entitled to treble damages, the Eleventh Circuit considered the meaning of the terms "willfully or knowingly" under the statute.
The Court stated that the treble damages provision "requires the violator to know he was performing the conduct that violates the statute." Plaintiff was required to show that defendants knew they were placing a call to an emergency line or that the advertisement was unsolicited: "If we interpreted the statute to require only that the violator knew he was making a 'call' or sending a fax, the statute would have almost no room for violations that are not 'willful[] or knowing[].'"
Applying this standard, the court found that plaintiff failed to establish that defendants willingly or knowingly violated the statute. Specifically, plaintiff did not allege that defendants knew they were placing a call to an emergency line. In addition, the bare assertion that defendants willfully and knowingly violated the statute in the plaintiff's complaint was insufficient to show defendants' knowledge that the advertisement was unsolicited, particularly because the defendants used third parties to send faxes and may not have known that the plaintiff received a particular fax. Thus, this case sets a high evidentiary bar for a TCPA plaintiff seeking treble damages, and may require a plaintiff to prove through discovery or documentation that the defendant had actual knowledge of the plaintiff's unwillingness to receive calls.
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