No Internal Do-Not-Call List, But Who Got Hurt? Cordoba v. DIRECTV

A telemarketing vendor making calls for DIRECTV admitted it didn't keep an internal do-not-call list at all. When people asked to stop getting calls, it just deleted their info from its database.

Sebastian Cordoba says he got called at least eighteen times between April and November 2015, even though his number was on the National Do Not Call Registry and he kept telling them to stop. He even wrote to DIRECTV, which promised the calls would end. They didn't.

So he filed a class action. And in Cordoba v. DIRECTV, LLC, No. 18-12077, 942 F.3d 1259 (11th Cir. Nov. 15, 2019), the U.S. Court of Appeals for the Eleventh Circuit vacated the class anyway. Judge Marcus wrote it, joined by Judge Black and Judge Restani of the U.S. Court of International Trade.

So what was the class?

Federal Communications Commission (FCC) rules require telemarketers to keep an internal do-not-call list, train staff on it, add people who ask and not call them for five years. The Telephone Consumer Protection Act (TCPA) lets anyone who gets more than one call in a year in violation of those rules sue for $500 per violation.

The district court certified a class of everyone who got more than one call from the vendor, Telecel Marketing Solutions, Inc., for DIRECTV while it had no internal list. Cordoba put that at about 16,870 people and 52,810 calls.

What the court said

Unwanted calls are a real injury. The court said getting more than one unwanted telemarketing call is a concrete harm. A ringing phone demands attention and intrudes on your home. It noted that its Salcedo v. Hanna decision about a single text didn't change that.

But the harm has to trace back to the violation. Here's the thing ... if you never asked Telecel to stop calling, you wouldn't have been on an internal list even if it existed. So the missing list didn't cause your calls. Those class members lacked standing for this claim.

Cordoba still had standing. He asked them to stop, over and over. And the separate Registry class wasn't on appeal.

That matters for class certification. Only the named plaintiff needs standing for the case to go forward. But the court will eventually have to sort out who asked to stop calling. That's an individual question. The district court never considered whether those questions would swamp the common ones, and that was an abuse of discretion.

The court flagged how lopsided it might be. Only 926 of the 16,870 numbers, about 5.5 percent, were on the Registry. If a similar share asked to stop, most of the class had no standing.

Read that again. Maybe 5 percent.

Why should you care?

Look, this case is not a free pass. The court was clear that a narrower class could still be certified, and the named plaintiff's claim survived.

What it really shows is how internal do-not-call claims work. They protect people who asked you to stop. So your records of those requests are everything.

What to do this week

• Keep an actual internal do-not-call list. Not a delete button.
• Have a written policy and train people on it. The rules require both.
• Make vendors share and honor your list. DIRECTV got sued over its vendor.
• Scrub against the National Do Not Call Registry too.

Deleting someone from your database isn't the same as putting them on a do-not-call list. Ask Telecel.

Read the Eleventh Circuit's opinion in Cordoba v. DIRECTV.