Wednesday, September 7, 2011

Getting Even With Phone Solicitors

"Our instinctive perception is that humor is fun. It isn't! Humor is criticism cloaked as entertainment and directed at a specific target." 
Mel Helitzer


Assuming this theory is true, a proper selection of targets is highly important. This means, that the material must coincide with the personality of the comic. The target should be one that the author wants to criticize. At the same time, for the audience to enjoy the humor, they also have to relate to or reaffirm the author's criticisms. 

Most of us have endured solicitation phone calls, which in my experience, mostly occur during dinner time. Margaret Smith said, "I hate phone solicitors. I'd rather get an obscene call; at least they work for themselves."  


This criticism of phone solicitors is understandable because most people do not want to be bothered by telemarketers calling during dinner time, or any other time for that matter. If you want to be harassed by a sales person, I recommend going out shopping. 

Pattie Kozma said, "People will always have something to say. That's just the way it is."   



For the rest of us who wouldn't mind getting even, and who might feel that getting even is funny, here's some ideas on how to deal with those pesky phone solicitors. 


The Telephone Consumer Protection Act of 1991 (TCPA) forbids a variety of annoying practices, such as the sending of junk fax ads. Most importantly, the TCPA prohibits making a "telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a [commercial advertising] message without the prior express consent of the called party," 47 U.S.C. §227(b)(1)(B), with limited exceptions applicable to non-profit entities. In addition, the FCC has issued regulations interpreting the TCPA. Those regulations: 
  • require pre-recorded messages to "(1) [a]t the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and (2) [d]uring or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual" (47 C.F.R. §64.1200(d))
  • prohibit making a "telephone solicitation to a residential telephone subscriber... [b]efore the hour of 8 a.m. or after 9 p.m. (local time at the called party's location) §64.1200(e)(1)) 
Of course, you can register a complaint with the FCC, which has authority to cite violators. 


But the truly happy news here is that the TCPA gives you and me the right to sue if the telemarketer calls us in violation of these statutory or regulatory restrictions: 



A person or entity may, if otherwise permitted by the laws or rules of a court of a State, bring in an appropriate court of that State -- (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions. 

If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal but not more than 3 times the amount available under subparagraph (B) of this paragraph. 

While these are federal laws, these suits cannot be brought into federal court 47 U.S.C. §227(b)(3). Instead, they must be brought in the court of a "State," which includes D.C.: "The term 'State' includes the District of Columbia and the Territories and possessions." (47 U.S.C. §153(40)). 

I gleaned this advice from a website written by an attorney. I am not an attorney and this post in no way constitutes legal advice. If you would like to sue a telemarketing company, it is up to you to hire an attorney or research the laws on your own. Here's some interesting links to help you in your quest of comical revenge! 

Absurdly Long List of Links

link to the cool attorney that sued a telemarketer and won $500  
 
link to absurdly long URL at uscode.house.gov
 
link to long URL at the Government Printing Office
 
http://www4.law.cornell.edu/uscode/47/227.html
 
http://www.stopjunkcalls.com/227.htm
 
http://www.junkfaxes.org/47usc227.txt
Text of the TCPA from various sources

another link to a long URL at the GPO site
 
http://www.junkbusters.com/fcc.html#subpL
 
http://www.stopjunkcalls.com/64120.htm
Copies of the FCC regulations implementing the TCPA

link to long D.C. Code URL
The chapter of D.C. law dealing with telemarketing

http://www.privacyrights.org/fs/fs5-tmkt.htm
Detailed fact sheet from Privacy Rights Clearinghouse

http://ftp.fcc.gov/cgb/consumerfacts/tcpa.html
 
http://ftp.fcc.gov/cgb/consumerfacts/unwantedfaxes.html
 
http://www.fcc.gov/eb/tcd/tsol.html
 
http://www.fcc.gov/eb/tcd/ufax.html
FCC fact sheets on telemarketing and junk fax issues under the TCPA, plus lists of FCC citations for unsolicited pre-recorded calls and faxes. For good advice (not listed on the fact sheets) on how to report illegal pre-recorded calls, plus a sample letter, go to this page.

http://ftp.fcc.gov/cgb/policy/telemarketing.html
FCC collection of background documents on the rulemaking process for the TCPA regulations

http://docs.junkcalls.org
A treasure trove of hard-to-find materials, including helpful FCC opinion letters on the meaning of "willful" (for purposes of imposing treble damages); on the requirement to provide a written do-not-call policy to a requesting consumer (here and here); and on the applicability of the TCPA to intrastate calls.

http://www.epic.org/privacy/telemarketing
Extensive info from EPIC, with lots of links to other resources

http://www.junkbusters.com
Another exhaustive resource, which is slightly marred by some minor errors. For example, it says that the telemarketer has to violate the law twice in one year to be liable to you. That's correct as to violations of the "do-not-call" list and related regulations – for which you can sue under 47 U.S.C. § 227(c)(5) – but it's dead wrong on TCPA violations arising under subsection (b): thus, a single pre-recorded, unsolicited telemarketing call to your home is enough to incur liability under the separate right of action set forth at 47 U.S.C. § 227(b)(3).
On the other hand, JunkBusters has a wonderful set of scripts to use when telemarketers call.

http://www.stopjunkcalls.com/script.htm
Clever scripts & suggestions for putting the screws on a telemarketer. A sample:
Listen carefully to how the telemarketer introduces himself. If he says that he is calling "for xyz company" or "on behalf of xyz company," then it is a sure bet you are talking to a telemarketing service (service bureau). Get friendly with the telemarketer. I say something like this: "John, you told me you were calling on behalf of Megabank Visa. I am involved in the telemarketing industry. Are you an employee of Megabank, or are you a third party service bureau?" Most will tell you the name of the bureau. This is valuable information. If you later decide to sue, contacting the service bureau and telling them that you are going to sue their client (Megabank Visa) may result in a settlement. After all, if you were a telemarketing company, would you want your client sued because one of your minimum wage telemarketers screwed up?

http://www.junkfaxes.org
 
http://www.junkfax.org/fax/basic_info/junk_fax_qa.htm
How to inflict pain and suffering on junk fax senders

http://www.ftc.gov/bcp/conline/edcams/donotcall/index.html
FTC site about the national do-not-call registry launched in mid-2003 (taking effect Oct. 1)

http://www.edcombs.com/CM/Actions/actions146.asp
 
http://www.jtexconsumerlaw.com/Telephone.pdf
Detailed legal discussions of various aspects of the TCPA

http://caeaudio.com/callsystem.html
Excellent technical discussion on automated & predictive dialers, and how they can be defeated. Sample SITs (Special Information Tones) like the one used by the TeleZapper device can be downloaded from here or here. Putting these tones at the start of your answering machine message may trick autodialers into taking your number off the telemarketer's call list.



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