{ "id": 4181313, "name": "MARK A. WARD, Plaintiff v. KANTAR OPERATIONS, Defendant", "name_abbreviation": "Ward v. Kantar Operations", "decision_date": "2011-02-01", "docket_number": "No. COA10-828", "first_page": "448", "last_page": "453", "citations": [ { "type": "official", "cite": "209 N.C. App. 448" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "499 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "776" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650568 ], "year": 1998, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0389-01" ] }, { "cite": "515 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "246", "parenthetical": "\"It is well-established that conclusory statements standing alone cannot withstand a motion for summary judgment.\"" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 306", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11219145 ], "year": 1999, "pin_cites": [ { "page": "309", "parenthetical": "\"It is well-established that conclusory statements standing alone cannot withstand a motion for summary judgment.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0306-01" ] }, { "cite": "16 C.F.R. \u00a7 310.2", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 2, "pin_cites": [ { "page": "(cc)" }, { "page": "(dd)" } ], "opinion_index": 0 }, { "cite": "437 F. Supp. 2d 273", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 5660950 ], "year": 2006, "pin_cites": [ { "page": "296", "parenthetical": "\"[T]he Telemarketing Act... states that those persons who are 'adversely affected' are authorized to bring a civil action against a deceptive telemarketer.\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/437/0273-01" ] }, { "cite": "15 U.S.C. \u00a7 6104", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "16 C.F.R. \u00a7 310.4", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 4, "pin_cites": [ { "page": "(b)(l)(iii)(B)" }, { "page": "(b)(l)(iv)" }, { "page": "(b)(l)(iii)(B)" }, { "page": "(b)(l)(iv)" } ], "opinion_index": 0 }, { "cite": "75 Fed. Reg. 8458", "category": "reporters:federal", "reporter": "Fed. Reg.", "year": 2010, "opinion_index": 0 }, { "cite": "164 L. Ed. 2d 779", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2006, "opinion_index": 0 }, { "cite": "547 U.S. 1128", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 0 }, { "cite": "15 U.S.C. \u00a7 6102", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "(a)(1)" }, { "page": "(a)(3)" } ], "opinion_index": 0 }, { "cite": "420 F.3d 331", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 8936613 ], "year": 2005, "pin_cites": [ { "page": "334", "parenthetical": "quoting 15 U.S.C. \u00a7 6102(a)(1)" } ], "opinion_index": 0, "case_paths": [ "/f3d/420/0331-01" ] }, { "cite": "15 U.S.C. \u00a7\u00a7 6101", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "16 C.F.R. \u00a7\u00a7 310.1", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": 0 }, { "cite": "271 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "57" } ], "opinion_index": 0 }, { "cite": "301 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564678 ], "year": 1980, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0200-01" ] }, { "cite": "347 S.E.2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779554, 4776469 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0715-01", "/nc/317/0715-02" ] }, { "cite": "343 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523953 ], "year": 1986, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0383-01" ] }, { "cite": "530 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "835" } ], "opinion_index": 0 }, { "cite": "352 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684915 ], "year": 2000, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0077-01" ] }, { "cite": "515 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "350 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132244 ], "year": 1999, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0567-01" ] }, { "cite": "289 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "366" }, { "page": "366", "parenthetical": "quoting N.C. R. Civ. P. 56(e)" }, { "page": "366", "parenthetical": "\"[S]ubsection (e) of Rule 56 precludes any party from prevailing against a motion for summary judgment through reliance on conclusory allegations unsupported by facts.\" (emphasis omitted)" } ], "opinion_index": 0 }, { "cite": "305 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569908 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "369" }, { "page": "369-70" }, { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0366-01" ] }, { "cite": "586 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "357 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491872 ], "year": 2003, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0492-01" ] } ], "analysis": { "cardinality": 709, "char_count": 13735, "ocr_confidence": 0.746, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.137381754689173 }, "sha256": "f6e08b95535c8ffd0f0c09f1cc682bd4a029df48402dcf63d901b3c2dc3a241d", "simhash": "1:f3a2df904ddc3e7f", "word_count": 2171 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "MARK A. WARD, Plaintiff v. KANTAR OPERATIONS, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nPlaintiff Mark A. Ward appeals from the trial court\u2019s order granting defendant Kantar Operations\u2019 motion for summary judgment on plaintiff\u2019s claims that defendant violated certain provisions of the Telemarketing Sales Rule (\u201cTSR\u201d), promulgated by the Federal Trade Commission (\u201cFTC\u201d). Plaintiff argues on appeal that summary judgment is improper in this case due to a \u201cgenuine question of material fact as to whether [defendant] is in fact a telemarketer and whether [defendant] engaged in telemarketing thereby subjecting [defendant] to the Telemarketing Sales Rule.\u201d We conclude, however, that defendant, as the party moving for summary judgment, satisfied its burden of producing sufficient evidence showing that it is not a telemarketer and that plaintiff, as the party opposing the motion, failed to respond with a forecast of specific facts creating a genuine issue for trial with respect to whether defendant is a telemarketer. Accordingly, we affirm.\nFacts\nOn 23 March 2009, plaintiff filed a complaint alleging that \u201c[d]espite Plaintiffs telephone number being in the FTC\u2019s Do Not Call Registry database, Defendant contacted Plaintiff by telephone\u201d on four separate occasions between 10 March and 20 March 2009. Plaintiff also alleged that during each of these phone calls, \u201cDefendant failed to connect the call to a Representative within two seconds after Plaintiff completed his greeting . .'. .\u201d Plaintiff alleged that defendant\u2019s conduct violated the national \u201cdo-not-call\u201d registry provision and the call-abandonment provision of the TSR. Plaintiff requested general as well as punitive damages, interest, and costs.\nDefendant filed a motion for summary judgment on 24 February 2010, asserting that it was not a \u201ctelemarketer\u201d as defined by the TSR and thus was not subject to the regulation\u2019s restrictions. Plaintiff cross-moved for summary judgment, arguing that the \u201cundisputed facts\u201d established that defendant was a telemarketer under federal law and that he was entitled to judgment as a matter of law. After conducting a hearing on the parties\u2019 motions, the trial court entered an order on 9 April 2010 granting defendant\u2019s motion for summary judgment and denying plaintiff\u2019s. Plaintiff timely appealed to this Court.\nDiscussion\nPlaintiff contends that the trial court erred in entering summary judgment in favor of defendant. Summary judgment is proper only \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. R. Civ. P. 56(c); Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). \u201cAn issue is \u2018genuine\u2019 if it can be proven by substantial evidence and a fact is \u2018material\u2019 if it would constitute or irrevocably establish any material element of a claim or a defense.\u201d Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). The moving party has the burden of demonstrating the lack of any genuine issue of material fact and entitlement to judgment as a matter of law. Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 572, 515 S.E.2d 438, 441 (1999). To that end, the evidence produced by the parties is viewed in the light most favorable to the non-moving party. Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000). A trial court\u2019s ruling on a motion for summary judgment is reviewed de novo as the trial court resolves only questions of law. Va. Elec. and Power Co. v. Tillett, 80 N.C. App. 383, 385, 343 S.E.2d 188, 191, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986).\nWhen the moving party, through its forecast of evidence, satisfies its burden of establishing that there are no disputed issues of material fact for trial and that the moving party is entitled to judgment as a matter of law, \u201cthe burden shifts to the non-moving party to \u2018set forth specific facts showing that there is a genuine issue for trial.\u2019 \u201d Lowe, 305 N.C. at 369-70, 289 S.E.2d at 366 (quoting N.C. R. Civ. P. 56(e)) (emphasis omitted). The non-moving party \u201cmust come forward with facts, not mere allegations, which controvert the facts set forth in the moving party\u2019s case.\u201d Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200, 204, 271 S.E.2d 54, 57 (1980).\nPlaintiff contends that his forecast of evidence is sufficient to establish a violation of the national \u201cdo-not-call\u201d registry and call-abandonment provisions of the TSR, 16 C.F.R. \u00a7\u00a7 310.1 to 310.9, adopted by the FTC pursuant to the Telemarketing and Consumer Fraud and Abuse Prevention Act (\u201cTelemarketing Act\u201d), 15 U.S.C. \u00a7\u00a7 6101 to 6108. Congress enacted the Telemarketing Act in 1994, \u201cinstruct[ing] the FTC to \u2018prescribe rules prohibiting deceptive . . . and . . . abusive telemarketing acts or practices.\u2019 \u201d Nat'l Fed\u2019n of the Blind v. FTC, 420 F.3d 331, 334 (4th Cir. 2005) (quoting 15 U.S.C. \u00a7 6102(a)(1)) (second alteration added), cert. denied, 547 U.S. 1128, 164 L. Ed. 2d 779 (2006). Congress specifically \u201cdirected the FTC to forbid \u2018unsolicited telephone calls which the reasonable consumer would consider coercive or abusive of such consumer\u2019s right to privacy,\u2019 to restrict \u2018the hours of the day and night when unsolicited telephone calls can be made,\u2019 and to require that callers disclose information about the nature and purpose of the call.\u201d Id. (quoting 15 U.S.C. \u00a7 6102(a)(3)).\nIn response to Congress\u2019 directives, the FTC adopted the original TSR in 1995. The current TSR \u2014 most recently amended in 2010, see 75 Fed. Reg. 8458-01 (August 10, 2010) \u2014 includes the national \u201cdo-not-call\u201d registry provision, 16 C.F.R. \u00a7 310.4(b)(l)(iii)(B), and the call-abandonment provision, 16 C.F.R. \u00a7 310.4(b)(l)(iv). Pertinent to this appeal, the Telemarketing Act authorizes a private cause of action by \u201c[a]ny person adversely affected by any pattern or practice of telemarketing\u201d that violates the TSR. 15 U.S.C. \u00a7 6104(a); accord 800-JR Cigar, Inc. v. GoTo.com, Inc., 437 F. Supp. 2d 273, 296 (D.N.J. 2006) (\u201c[T]he Telemarketing Act... states that those persons who are \u2018adversely affected\u2019 are authorized to bring a civil action against a deceptive telemarketer.\u201d).\nThe national \u201cdo-not-call\u201d registry provision of the TSR provides in pertinent part:\n(1) It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer to engage in, or for a seller to cause a telemarketer to engage in, the following conduct:\n(iii) Initiating any outbound telephone call to a person when:\n(B) that person\u2019s telephone number is on the \u201cdo-not-call\u201d registry, maintained by the Commission, of persons who do not wish to receive outbound telephone calls to induce the purchase of goods or services\n16 C.F.R. \u00a7 310.4(b)(l)(iii)(B). The call-abandonment provision similarly provides:\n(1) It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer to engage in, or for a seller to cause a telemarketer to engage in, the following conduct:\n(iv) Abandoning any outbound telephone call. An outbound telephone call is \u201cabandoned\u201d under this section if a person answers it and the telemarketer does not connect the call to a sales representative within two (2) seconds of the person\u2019s completed greeting.\n16 C.F.R. \u00a7 310.4(b)(l)(iv). As the language of both provisions indicate, they apply only to \u201ctelemarketers,\u201d which the TSR defines as \u201cany person who, in connection with telemarketing, initiates or receives telephone calls to or from a customer or donor.\u201d 16 C.F.R. \u00a7 310.2(cc). \u201cTelemarketing,\u201d in turn, is defined as \u201ca plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution, by use of one or more telephones and which involves more than one interstate telephone call.\u201d 16 C.F.R. \u00a7 310.2(dd).\nThe crux of this appeal is whether defendant, who admittedly \u201cinitiated\u201d telephone calls to plaintiff, is a \u201ctelemarketer\u201d as defined by the TSR. Plaintiff claims that defendant, as the party moving for summary judgment, \u201cfailed to present to the trial court any verifiable material evidence that [defendant] [i]s in fact not a telemarketer as defined by the . . . Telemarketing Sales Rule.\u201d Defendant moved for summary judgment relying primarily on the affidavit of its Chief Executive Officer, Beth Teehan, in which she testified that \u201c[defendant] is a national survey research organization and not a telemarketing company\u201d; that \u201c[defendant] collects data ... by conducting survey research by contacting persons by telephone only to ask for their opinions\u201d; that \u201c[w]hen [defendant] conducts survey research by telephone, [defendant] does not call to provide, offer to provide, or arrange for others to provide goods or services to the person called in exchange for consideration, and [defendant] does not solicit or induce the purchase of any goods or services or a charitable contribution\u201d; and that \u201c[defendant] is a member in good standing of the Council of American Survey Research Organizations,\u201d the \u201cnational association of survey research businesses,\u201d whose \u201cobjective is to promote the integrity of survey research through standards, guidelines and best practices.\u201d\nDefendant also submitted as exhibits a copy of its \u201cApplication for Membership\u201d to the Council of American Survey Research Organizations as well as documents from its corporate website in which it identifies itself as a \u201cnational survey research organization.\u201d Defendant also included a \u201chelp sheet\u201d titled \u201cWho Are We?,\u201d which instructs its employees to explain to a caller, when the caller states that his or her telephone number is listed on the do-not-call registry, that \u201cthe National Do Not Call Legislation was passed to regulate the activities of the telemarketing industry\u201d; that \u201c[according to the National Do Not Call legislation, legitimate opinion surveys are permissible\u201d; and that \u201c[defendant] is a legitimate opinion research company and . . . never tr[ies] to sell. . . anything.\u201d Defendant\u2019s forecast of evidence \u2014 the verified affidavit from its CEO in which she states that defendant is not a telemarketing company, proof of the company\u2019s membership in a national association for survey research organizations, and internal corporate documentation providing instructions to its employees on how to explain to callers that the company is not required to comply with the national do-not-call registry provision of the TSR because it is a \u201clegitimate opinion research company\u201d \u2014 is sufficient to establish that defendant is not a telemarketer, thus shifting the burden to plaintiff under N.C. R. Civ. P. 56(e) to \u201cset forth specific facts\u201d showing that defendant is a telemarketer.\nIn his affidavit, plaintiff does not provide any specific facts that create a triable issue as to whether defendant is a telemarketer. Plaintiff simply reiterates in a conclusory manner the allegations in his complaint that defendant violated the do-not-call registry provision and the call-abandonment provision of the TSR without forecasting any evidence that defendant\u2019s calls were to induce the purchase of goods or services or a charitable contribution. See Lowe, 305 N.C. at 370, 289 S.E.2d at 366 (\u201c[S]ubsection (e) of Rule 56 precludes any party from prevailing against a motion for summary judgment through reliance on conclusory allegations unsupported by facts.\u201d (emphasis omitted)); Midulla v. Howard A. Cain, Inc., 133 N.C. App. 306, 309, 515 S.E.2d 244, 246 (1999) (\u201cIt is well-established that conclusory statements standing alone cannot withstand a motion for summary judgment.\u201d).\nPlaintiff also states in his affidavit that \u201c[he] was informed that [defendant] is not registered with the Illinois Attorney General Office\u2019s Charitable Trust Bureau and [defendant] does not possess any permit to be a survey company and to operate as such in the State of Illinois.\u201d It is well-established, however, that \u201c[h]earsay matters included in affidavits should not be considered by a trial court in entertaining a party\u2019s motion for summary judgment.\u201d Moore v. Coachmen Industries, Inc., 129 N.C. App. 389, 394, 499 S.E.2d 772, 776 (1998). As plaintiff\u2019s statement regarding defendant\u2019s status in Illinois is hearsay, see N.C. R. Evid. 801(c), and plaintiff does not argue that the statement falls within any exception to the general rule prohibiting hearsay, see N.C. R. Evid. 802, plaintiffs statement cannot form\u2019the basis for rebutting defendant\u2019s showing that it is not a telemarketer under the TSR. As plaintiff fails to point to any other evidence that would establish a triable issue of fact as to whether defendant is a telemarketer, we conclude that the trial court properly granted summary judgment in favor of defendant.\nAffirmed.\nJudges CALABRIA and ELMORE concur.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Mark A. Ward, pro se, plaintiff-appellant.", "Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Jang H. Jo, for defendant-appellee." ], "corrections": "", "head_matter": "MARK A. WARD, Plaintiff v. KANTAR OPERATIONS, Defendant\nNo. COA10-828\n(Filed 1 February 2011)\nTelecommunications\u2014 national do-not-call registry \u2014 telemarketer\nThe trial court did not err by granting defendant\u2019s motion for summary judgment on plaintiff\u2019s claims that defendant violated certain provisions of the Telemarketing Sales Rule promulgated by the Federal Trade Commission regarding the national \u201cdo-not-call\u201d registry. Defendant satisfied its burden of producing sufficient evidence showing that it was not a telemarketer, and plaintiff failed to respond with a forecast of specific facts to show otherwise.\nAppeal by plaintiff from order entered 9 April 2010 by Judge Chester C. Davis in Forsyth County District Court. Heard in the Court of Appeals 15 December 2010.\nMark A. Ward, pro se, plaintiff-appellant.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Jang H. Jo, for defendant-appellee." }, "file_name": "0448-01", "first_page_order": 458, "last_page_order": 463 }