Laraine K. Arkow Robert V. Arkow Plaintiff, vs. BANK OF AMERICA, N.T.S.A. Defendants.

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CASE # S/C 95S00592   STATEMENT OF DECISION

This action is brought on behalf of plaintiffs who allege total damages of $2,000 excluding court costs as follows:

$500.00 for Breach of Contract; $500.00 Violation of Telephone Consumer Protection Act (TCPA); $1,000.00 Punitive Damages

On April 13, 1995, a telephone call was made by Bank of America employee Jason Evans to plaintiffs. Plaintiffs telephone number and name was made available to Mr. Evans by the bank. The purpose of the contact was to advise the Arkows of other investments that would be available to them. The Arkows were not available to receive the call and a message was left by Mr. Evans stating substantially as follows:

"This is Jason calling from the Palmdale branch of Bank of America. I need to talk to you about your savings account. Please call me at (805) 378-7237."

The purpose of Mr. Evans call was to advise the Arkows of other investments that were being offered by defendant and as such, the telephone call was a telephone solicitation in that it was made for the purpose on encouraging a purchase or rental or investment in property, goods or services.

Telephone solicitation does not include a caller message to any person with whom the caller has an established business relationship. There is no dispute that a prior business relationship existed between plaintiffs and defendants by virtue of a deposit of account and a loan. An established business relationship may be terminated by indicating the consumer does not want to receive any more calls or solicitations from the business. A Disclosure and Loan Agreement dated February 5, 1994 includes a provision number 19, "Bank not to telemarket customer." The original loan agreement contains this paragraph. The loan was granted by the bank and no objection to the provision was made.

On April 13, 1995 plaintiff Robert Arkow faxed Bank of America in Lancaster a demand pursuant to 47 USC Section 227 for the banks "Do Not Call Policy". The do not call policy was not delivered until approximately five (5) weeks after the demand was made and after the claim of plaintiff was filed on May 1, 1995.

At the time of making a live solicitation, the bank is required to provide the called party with the name of the individual caller, the person or entity on whose behalf the call is made and a telephone number or address at which the person or entity can be contacted. Bank of America employee, Jason Evans was not completely identified in that his name was not given, nor was his correct location given. Mr. Evans represented that he was from the Palmdale branch of Bank of America, however he was not. The telephone number given by Mr. Evans for a return call is not for the Palmdale branch, but is some place in Moorpark, California.

The Telephone Consumers Protection Act provides for a private right of action that may be brought in State Court to recover actual monetary loss from a violation of the act, or $500.00 in damages for each violation whichever is greater.

It is troubling in reviewing the Public Notice prepared by Federal Communication Commission on January 11, 1993 and the T.C.P.A that neither contemplates or gives right to a cause of action based upon one(1) Telephone Solicitation within a twelve month period. 47 USC Section 227 (c) (5) provides in part:

"a person who has received more than one telephone call within any twelve month period by or on behalf of the same entity in violation of the regulations prescribed under this sub sectionmay.....bring in an appropriate court of that state-"(b) an action to recover for actual monetary loss from such a violation, or to receive up to $500.00 in damages for each such violation, whichever is greater,....."

There being only one telephone call at issue, the court finds that that single phone call did not constitute a violation of 47 USC, Section 227.

Defendant, however has violated FCC rules with respect to failure to provide the Do Not Call Policy upon demand. Senior Vice President and District Manager, Ron Nemitz testified that the demand for a copy of the policy waited on his desk for him to review the policy prior to it's release. I can find no authority for the delay of the bank in turning over the policy in response to a demand.

Furthermore, bank employee, Jason Evans failed to properly identify himself at the time the telephone solicitation was made. Damages in the sum of $500.00 for each violation is awarded to Plaintiff.

Plaintiff's final cause of action for punitive damages is based upon, as plaintiff stated, a cause of action for intentional infliction of emotional distress. No testimony was offered to show that Bank of America intended to cause emotional distress to plaintiff, or that the defendant willfully or knowingly violated T.C.P.A. or FCC Regulations.

Judgment entered in favor of the Defendant on Plaintiffs claim of intentional infliction of emotional distress.

Dated June 15, 1995

Signed, James P. Reape

By the way, a few months after the Judge's decision, Bank of America called to make another sales pitch!

to the Los Angeles Daily News article.