Score One For the Little Guys!

11/7/06 Discover Card is ordered to pay $19,500 for multiple violations of the Telephone Consumer Protection Act (TCPA) arising from four unlawful telemarketing calls the company's telemarketers initiated to my home in January 2003.    It should be noted that Discover acknowledged I'd made numerous requests not to be telemarketed prior to 1/03.  Discover acknowledged making the calls but claimed they weren't liable because they were only trying to reach "someone else".  

 The decision is posted HERE   Note that while it says Discover is to pay the sum of $13,500, on 11/21/06 a formal report correcting the addition errors of the previous decision was issued and Discover was ordered to pay the sum of $19,500 for it's unlawful activities. 

Our Closing Argument details the basis for the arbitrator's decision.  


BACKGROUND

I moved in 11/02 & as a Discover cardholder of more than ten years, called a few weeks earlier to provide the credit card company with my new number. At the time I reiterated I didn't want to get telemarketing calls.  A little more than 2 months later, however, the calls began.  I asked not to be called again but most times the rep would just hang up.

Discover told the Wall Street Journal in 12/03 they weren't liable for the calls because they wereonly  trying to reach someone else - an identical defense rejected years earlier by the FFC in a decision against to AT&T.   Discover Card was aware of that decision, yet inexplicably ignored it.

I contacted the company numerous times over the next six months but my attempts to resolve the issue were rebuffed.  I subsequently closed the account, cut up the credit card and sent it back to Discover. Shortly thereafter I filed a claim based on the TCPA and Discover filed to have the issues decided by an arbitrator.  

Nearly 3 years later, the trial was held.  On each & every issue in dispute (whether or not multiple violations could occur in each call, whether or not the first call could be actionable, whether merely having a written do-not-call policy is a sufficient defense, and whether triple damages could be awarded for willfull and knowing violations) the judge ruled against Discover Card.  Ironically, Discover rejected the first 2 arbitrators we suggested so you might say the decision was handed down by someone they picked!

Discover's attorneys recently indicated they may attempt to appeal the decision.  To borrow from a phrase Discover's attorney made to the Wall Street Journal in 2003 when discussing the matter:  Bring It On...
Discover's Indifference to Privacy

I believe there is a lack of care and concern for consumer privacy on the part of Discover Card. Discover's primary concern is for the financial incentive it derives from making the calls.  This is directly evidenced by its defense that it reached someone by accident or mistake, and should therefore not be penalized.  This is nothing short of a callousness and indifference to consumer privacy in that by not admitting that regardless of whether they intentionally or unintentionally ring up people, their privacy is still violated. Discover invaded my privacy, my seclusion and my time.  I was inconvenienced and annoyed and yet Discover's position is that so long as it didn't INTEND to reach me, my time, privacy and aggravation is irrelevant.  

Discover has to know that most people are reluctant to take them on.  And in cases such as mine, when people do take them on, Discover makes it as painful as possible for them to proceed.  Discover's attorneys launched a slanderous personal attack on me, questioning my motives for bringing this claim. Fortunately the judge correctly ignored the rant for what it was:  table pounding ("If you have the facts on your side, pound the facts.  If you have the law on your side, pound the law.  If you have neither on your side, pound the table.")

My wish is that this judgment will benefit other consumers because I believe that a "judgment for the consumer in such a case may discourage violations of the Act by others"*.  Unfortunately Discover may still have a long way to go before they get their act together:  in July 2006 (while this case was pending) I got a call from a Discover Card telemarketer to my second home phone line - a number that has been on the National Do Not Call Registry since June 2003!!

I plan to use the award to contribute toward a public skateboard park to be built in my home town -- an effort my youngest son spearheaded five years ago - and which will become a reality within the next few months!

*Ohio Supreme Court Chief Justice Moyer.  Bittner v. Tri-County Toyota, Inc., 569 N.E. 2d 464, 466 (O Sup Ct., 1991).