Guest post by Steve Ostrow
[Editor's note: I was sent a review copy of this book, and enjoyed its playful approach to an intimidating subject. So when I was asked if I'd give Steve a forum during his launch, I gladly agreed.]
Congress has spoken! Anti-telemarketing legislation has been passed. Under reasonable restrictions, certain tactics by telemarketers are prohibited and court actionable. Violations can be enforced by the State via the attorney general’s office, the public via class action lawsuits or private lawsuits, and individuals via the small claims court.
The Telephone Consumer Protection Act of 1991 (TCPA) started the ball rolling. Congress was torn between the special interest lobbyists and the people’s vote. The green cash of the lobbyists stalled the legislature for numerous years, but eventually the annoyance of the telemarketing industry became too much. The door opened and the unfettered invasion of free speech was outweighed by the consumer’s right to privacy. After strong objection and outrage by consumers groups, the common sense legislation protecting the privacy of one’s own home was long overdue.
The 1991 original law was pretty weak and without sharp teeth. A free bite at the apple was given and the first offense by a telemarketer to a residence was forgiven with only a simple apology. A second offense was required in order to make an unsolicited commercial call actionable. Basically business did not change under the original law. In 2003, over great objection from the special interest groups, came the National Do Not Call Registry. Yes, 2003 was a great year for the peace and quiet in a consumer’s home. Instead of a consumer requesting individual companies from not calling the home telephone soliciting their service, a residential consumer could sign up at one location and prohibit almost all telemarketers from calling the home phone number. The burden shifted to the telemarketing companies to check “the registry” rather than having the consumer contact the merchant and opt out. Penalties were instituted which are collectible by attorney generals, lawyers, and individuals through the small claims process.
Under the TCPA and the Do Not Call Registry, there are several different violations which are collectible. The most popular ones are:
1. Calling a residential telephone number that is on the National Do Not Call Registry;
2. Using a pre-recorded dialing device to initiate a commercial sale;
3. Using a blocked telephone number when initiating a commercial sale;
4. Soliciting a consumer before 8am or after 9pm;
5. Failure to provide a copy of the company’s Do Not Call Manual after demand for a copy.
Each violation is actionable separately, or can be “stacked” together when multiple infractions are incurred. Even though the courts are supposed to punish each violation with a $500 penalty, different judges will approach cases differently. Some judges will allow you to “stack” as many violations into one case as possible. Others may limit you to one, two, or three causes of action. Regardless of the amount of the judgment, you are able to prosecute the invasion of your peace and privacy in your home through the small claim courts.
Penalties under the TCPA may be “trebled” when the court finds that the violation is intentional. It can be tedious to understand when a telemarketing violation is intentional and when it is not. Rationally thinking, all solicitations by telemarketers are intentional; they are intentionally picking up the phone at their boiler rooms and randomly telephoning as many people as possible making their commercial pitch. It is not accidental that your number may be called, just random bad luck. I guess the easiest way to understand the intentional tripling of damages is using the playoff basketball foul analogy. Some fouls are hard basketball fouls, some are flagrant one fouls, and others flagrant two. Sometimes you just shoot free throws, other times you get ejected from the game. Sometimes the court awards you $500; sometimes the atrocious call telephone solicitation can be awarded $1,500. It’s all up to the ref.
If you are a Democrat and you get a telephone solicitation from a Republican candidate, slow down before you start licking your lips about bringing the opposing political party to its knees. Under the TCPA, certain types of speech are exempted from lawsuits under the Act. Always remember, the violations under the TCPA were balanced with the First Amendment Right of Freedom of Speech. Certain solicitation exceptions are specifically carved out:
1. Tax exempt non-profit organizations, including political parties and campaigns;
2. Organizations with which you’ve had a prior business relationship;
3. Organizations with which you’ve given prior written permission and not expressly revoked;
4. Calls which are NOT COMMERCIAL.
Convenience is a big part of our lives. All of us would like to nail these pesky telemarketers; sometimes it is easier just to hang up the telephone. However, if you are in the mood to make some cash and fight back against these commercial parasites, the good news about small claims court litigation is that it can prosecuted in our home backyard. Since the violation occurred at our telephone, the proper jurisdiction for the action would be our local court.
Steve Ostrow is an attorney, celebrity impersonator and the author of the new book How To Sue A Telemarketer: A Manual for Restoring Peace On Earth One Phone Call At A Time. To date, Steve has successfully sued, or settled, won and collected, over 10 judgments against telemarketers. To find out more and order his book, go to www.howtosueatelemarketer.com