Anti-Telemarketing Guide

If you are consumer residing in the United States, it really is possible to put an end to commercial telephone solicitations to your personal residential and wireless phone numbers. The easiest way is to add these telephone numbers to the National Do-Not-Call Registry.

THE NATIONAL DO NOT CALL REGISTRY

The Do Not Call Registry is free, is nationwide in scope, applies to all telemarketers (with the exception of certain tax-exempt non-profit organizations), and covers both interstate and intrastate telemarketing calls. Commercial telemarketers are not allowed to call if your number is on the Registry. Click here to register. To register by telephone, consumers may call 1-888-382-1222: for TTY call 1-866-290-4236. You must call from the phone number you wish to register.

Thirty one days after you place these numbers on the national Do-Not-Call list, commercial telemarketers are prohibited from making telephone solicitations to your numbers. Keep in mind that your number(s) will remain on the list permanently or until you remove them or discontinue service.

The national Do-Not-Call list protects home voice or personal wireless phone numbers only. While you may be able to register a business number, your registration will not make telephone solicitations to that number unlawful.

A telephone solicitation is defined by the FCC as a telephone call that acts as an advertisement. The term does not include calls or messages placed with your express prior permission, by or on behalf of a tax-exempt non-profit organization, or from a person or organization with whom you established a business relationship (EBR).

An EBR exists if you have made an inquiry, application, purchase, or transaction regarding products or services offered by the person or entity involved. Generally, you may continue to do business with a company yet put an end to that relationship for the purposes of telemarketing calls simply by telling the person or entity not to place solicitation calls to your home. Otherwise an EBR is only in effect for 18 months after your last business transaction or three months after your last inquiry or application.

I have made a habit of telling businesses that in spite of my inquiry or any business relationship, I don’t want to receive telemarketing calls from them about additional goods or services. If you end a business relationship with a company in this manner, all calls placed to your home or wireless numbers by that person or entity are considered telephone solicitations in violation of the do-not-call rules.

COMPANY SPECIFIC DO NOT CALL LISTS

Some people choose not to add their phone numbers to the National Registry, but rather screen solicitation calls on a case-by-case basis. Under this scenario, the FCC still requires a person or entity placing telephone solicitations to your home or wireless number to maintain a record of your request to that particular person or business entity. Under these circumstances, the calling company must honor your do-not-call request for five years. To prevent calls from that particular company after five years, you will need to repeat your request to the company and it must honor it for another five years (and so on). Your request should also stop calls from affiliated entities if you would reasonably expect them to be included, given the identification of the caller and the product being advertised. Unless your phone numbers are registered on the national Do-Not-Call list, however, under this scenario you would be required to make a separate do-not-call request to each telemarketer from whom you do not wish to receive calls.

When you receive telephone solicitation calls, clearly state that you want your phone number added to the caller’s do-not-call list. You may want to keep a list of those persons or businesses with whom you have made this request. While tax-exempt non-profit organizations are not required to keep do-not-call lists, many will honor a do not call request, nevertheless.

THE TELEPHONE CONSUMER PROTECTION ACT

The Telephone Consumer Protection Act as enacted in 1991 is an amendment to the 1934 Communications Act. (47 U.S.C. § 227 – 47 C.F.R. Part 64 Subpart 1200).

The TCPA places conduct, record keeping, and disclosure requirements on ANY AND ALL entities engaged in telephone solicitations. These entities, for example, must:

  • Limit calls to your residence to between 8 a.m. and 9 p.m. (in your time zone);
  • Proactively tell you the individual caller’s name as well as the name and address or phone number of the entity on whose behalf the call is initiated;
  • Maintain a written Do Not Call telemarketing policy and make that policy available within a reasonable period of time to anyone who asks for a copy;
  • Maintain an in-house database by phone number of consumers who have issued a do-not-call request;
  • Transmit accurate Caller ID information.

Failure to comply with any of the above may result in a civil penalty of $500 payable to you. If a call is determined to be willful and/or knowing, the penalty can be tripled to $1,500 per violation. In the case of live calls, you must receive two calls from the same entity within a 12 month time period before a private-right-of-action is enabled (i.e., before you can file suit). In the case of prerecorded/auto dialed calls (which are considered to be the most annoying), you don’t have to wait for two calls because the first call enables a private-right-of-action.

It’s important to remember that while you might collect some cash as a self-appointed telemarketer cop, don’t plan on getting rich. Your motives should be to stop the calls to your home and to make it expensive for them to telemarket illegally. If even a small fraction of consumers made telemarketers jump through the hoops required by the TCPA, telemarketing would cease to be a profitable endeavor.

It’s important to also report telemarketing violations to the Federal Communications Commission online at Do Not Call.com. It’s simple and it provides the Commission with the information they need to levy hefty fines against the most egregious violators.

In addition, many state Attorney Generals have cracked down on telemarketers and generally you can also file a complaint and request that your Attorney General get involved. If you state Attorney General receives several complaints against the same telemarketer, it may take legal action against it. You should be able to find telephone numbers for these offices in the government section of your telephone directory or by Googling your state AG.

HOW CAN I PERSONALLY COLLECT MONEY FROM A TELEMARKETER?

It is possible to collect money from telemarketers for their illegal telemarketing practices. The first step is to write a formal ” demand ” letter to the president of the company, stating that the letter is a formal claim for money (state the amount you’re claiming) for violations of the Telephone Consumer Protection Act of 1991. Nolo press provides some good examples of demand letters.

You’ll want to set forth all of the details of the calls, including dates, times, the name of the persons who called, names of any supervisors you spoke to, the date you requested to be put on the Do-Not-Call List, and anything else you feel is pertinent. Junkbusters has a great anti-telemarketing script that helps you ask the right questions when a telemarketer calls so that you’ll have all this info at hand when you get ready to write your demand letter.

State in your letter how you arrived at the amount you’re claiming. Remember that the law says $500 for each violation but if it is determined that the violations were willful and knowing, that amount can be increased to up to $1,500 for each violation. If you’re willing to settle for a reduced amount (an “offer-in-compromise”), state that you’re willing to negotiate. While it is important to give them a reasonable amount of time to respond (like 30 days), it is also important to include a deadline for responding. Tell them if you haven’t heard from them by the deadline, you will seek redress in Court. It’s also important to send the letter Certified Mail, Return Receipt Requested.

In your letter, be sure to ask for a copy of the company’s written Do-Not-Call policy. Failure to provide it can increase your claim by another $500!

If the company fails to respond, or declines your offer-in-compromise, you have the option of filing suit in your State’s small claims court. While this latter option can be an extremely intimidating experience and is not for the faint of heart, there are many consumers – myself included – who have gone this route and successfully prevailed against telemarketers. When I started holding telemarketers accountable to the TCPA in 1999, there weren’t many lawyers out there who had even heard about the Act. These days there are a number of lawyers throughout the country representing consumers in TCPA cases. For a list of lawyers familiar with TCPA cases visit tcpalaw.com.

NOTE: This represents a lay person’s overview of the law. It does not pretend to be a thorough explanation of the law, nor does it attempt to offer legal advice. If you intend to make full use of this law, you should first consult an attorney. However you choose to use this information is with your full responsibility and at your own risk.