Time Warner Cable subsidiaries seek dismissal of class action over allegedly unsolicited fax

By Andrew Burger | Jul 3, 2017

ATLANTA (Legal Newsline) – Subsidiaries of the country's largest cable pay-TV company Time Warner Cable (TWC) on June 20 filed a motion in the U.S. District Court for the Northern District of Georgia in Atlanta to dismiss a prospective class action lawsuit filed by New York law firm Shimshon Wexler.

Attorneys representing TWC subsidiaries doing business in Georgia requested the court dismiss an amended complaint filed by Shimshon Wexler on the grounds that the court lacks personal jurisdiction over the defendants. They also said if the case isn't dismissed, it should be heard in New York federal court.

The defendants filed a motion to dismiss the plaintiff’s original complaint on the grounds that Shimshon failed to substantiate a prima facie case of personal jurisdiction as per “prong one or prong two of the Georgia Long-Arm Statute.” In the original complaint, the defendants asserted that plaintiff directed alleged activities to Georgia purposefully.

As reported May 30, Shimshon Wexler alleges Aicom Solutions LLC - doing business as Aicom Corp. and Time Warner Cable LLC in turn acting through subsidiary agents Spectum, Time Warner Cable Media, Charter Communications Inc. and Charter Communications Operating LLC - failed to make disclosures to consumers when sending them unsolicited telephone fax messages in violation of the Telephone Consumer Protection Act. Lawyers from Shimshon Wexler filed the firm’s prospective class action lawsuit in U.S. District Court in Atlanta in late March.

According to the filing: "Each person that was sent one or more telephone facsimile messages from Time Warner Cable after Feb. 24, 2013, promoting the commercial availability of digital telephone or internet services but not stating on its first page that the recipient may make a request to the sender not to send any future ads and that failure to comply with such a request within 30 days is unlawful."

As remedy, the law firm says, "The court should exercise its discretion to increase the amount of the statutory damages award to an amount equal to not more than three times the amount." It also requests the court prohibit the defendants from telephone faxing ads in the future.

The complaint states Shimshon Wexler is seeking "a windfall in statutory damages" from TWC subsidiaries Spectrum, Time Warner Cable Media and two Charter Communications companies for allegedly violating the Telephone Consumer Protection Act. Shimson Wexler chose to file an amended complaint rather than respond to the original motion to dismiss.

Defendants assert that plaintiff again fails to substantiate its claim in its amended complaint as per the terms of the two prongs of Georgia’s Long-Arm Statute. According to plaintiffs’ motion to dismiss plaintiff “continues to omit the critical allegation that the Charter Defendants did any act or any business within Georgia that gave rise to plaintiff’s claims.

“At most, plaintiff now alleges that it 'received' the fax in Georgia, but does not allege that the Charter defendants sent the fax, much less that they sent it from or to Georgia. Additionally, although plaintiff now tacitly admits it has a New York office, it fails to recognize (a) the fax is specifically addressed to that office, (b) the fax proposes service at that office, (c) the Fax was sent to that office, (d) from outside Georgia, and (e) the Charter Defendants did not send the fax at all," the motion says.

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