The federal do not call registry allows telephone subscribers to sue for telephone advertising calls (telemarketing calls) only if the phone subscriber is registered on the do not call list and the caller violates the do not call list by calling a number listed on the do not call registry at least twice during a 365 day period. Although one call may violate other sections of the TCPA, one call in a year will not provide a phone subscriber a private right of action (the right to sue).
The Telephone Consumer Protection Act of 1991 (the “TCPA”) granted the Federal Trade Commission (“FTC”) and the Federal Communications Commission (“FCC”) the power to create a national do not call list. The FTC and FCC did not create a national do not call registry until 2003 however as the growing number of consumer complaints about telemarketers using predictive dialers and increased feasibility of the technology to create a reliable do not call registry compelled the agencies to act.
The national do not call list do not apply to telemarketers who : (1) have an established business relationship with the person that they called to telemarket; and (2) have written consent from the person who they are calling. 2012 TCPA Order, Para . 20 (Feb. 15, 2012). As explained below, phone subscribers can revoke this consent.
If a residential telephone user wants to stop a company that they do business with (and who obtained his or her written consent in a boilerplate agreement) from calling, he or she must take further steps to opt-out of receiving advertising calls. Fortunately, this can be done! This link explains the TCPA protections available under the caller specific do not call list and how to make an enforceable do not call request to a specific company.
If your are a Florida resident who does business with the company that is calling you and you believe you never provided written consent to being called, you are welcome to contact Mr. Petersen for a free case evaluation.
MANY TYPES OF CALLS ARE EXEMPT FROM THE NATIONAL DO NOT CALL LIST
Many types of calls are exempt from the national do not call list and, unfortunately, these exceptions also apply to caller specific do not call requests.
The TCPA and the FCC orders provide that the national do not call list does not prohibit
“non-telemarketing, informational calls, such as those by or on behalf of tax-exempt non-profit organizations, calls for political purposes, and calls for other noncommercial purposes, including those that deliver purely informational messages such as school closings.”
2012 TCPA Order, Para 28 (Feb. 15, 2012); See also, 2003 TCPA Order, Para 45 (July 3, 2003) (exempting non-profits and calls made on their behalf).
The FCC has exempted non-telemarketing informational calls made to residential landline customers :
Our rules for these [non-telemarketing, informational] calls will continue to permit oral consent if made to wireless consumers and other specified recipients, and will continue to require no prior consent if made to residential wireline consumers.“
2012 TCPA Order, Para 28 (Feb. 15, 2012)(emphasis added). But, these consent requirements (italicized above) do not apply when autodialed or prerecorded calls are made for emergency purposes. 47 C.F.R. Sections 227(b)(1)(, 227(b)(1)(B) (2012).
What are “informational messages”? The FCC provided examples of calls which may be purely informational messages :
debt collection calls;
airline notification calls;
bank account fraud alerts;
school and university notifications;
research or survey calls; and
wireless usage notification messages.
2012 TCPA Order, Para 28, (Feb. 15, 2012). These types of calls (listed immediately above) — when they are in their pure form and not coupled with telemarketing messages — do not require any consent when made to residential wireline consumers, but require either written consent or oral consent if made to wireless consumers and other specified recipients. 2012 TCPA Order, Para 28 (Feb. 15, 2012).
The FCC has ruled that calls made to wireless customer by his or her wireless carrier do not require prior consent if the customer is not charged for the call. See, e.g., 2012 TCPA Order, Para. 27 (Feb. 15, 2012).
THE DO NOT CALL LIST DOES NOT PROHIBIT DEBT COLLECTION CALLS
The do not call list does not prohibit debt collection calls. Calls to collect a debt are not “telephone solicitations” as that term is used in the TCPA. If you are receiving debt collection calls, the TCPA may still provide protection but the National Do Not Call List and the Company Specific Opt-Out Lists will not help you.
Here are some suggested articles for you to read for general information about debt collection calls and how the TCPA and FDCPA may help telephone subscribers combat them.
If you are receiving calls attempting to collect a debt click the appropriate choice : (1) calls about a debt allegedly owed by someone who you do not even know; (2) calls about a debt allegedly owed by a friend or relative (other than my spouse); (3) calls about a debt that you (and/or your spouse) allegedly owe.
If you believe the debt was discharged in bankruptcy, please also read this information. If you believe the debt may be so old that the statute of limitations has expired, please also read this information.
THE DO NOT CALL LIST DOES NOT PROHIBIT TELEMARKETING CALLS TO BUSINESS TELEPHONE NUMBERS
The National Do Not Call List does not prohibit telemarketing calls placed to business telephone numbers. Although 43 states have some form of do not call list, none of these states’ do not call lists protect business telephone numbers against unwelcome telephone solicitations. The one narrow exception is in Texas where, in addition to a do not call list which is similar to the National Do Not Call List orders (protecting only residential lines), the legislature enacted a second statute which allows businesses to register their number on a specialized do not call list so they won’t receive solicitation calls from electric service providers. Tex. Utilities Code, Section 39.1025.
Calls using ATDS or prerecorded messages to cell phones used the businesses’ telephone number may violate other provisions of the TCPA but not the Do Not Call List.
TCPA STATUTORY DAMAGES
If you received two (2) calls during a 365 day period from a telemarketer at a telephone number while that number was registered on the national do not call registry, you may have a right to sue under the TCPA. The residential telephone user does not have the right to sue the caller for the first call even if the phone user receives the second call. See Worsham v. Nationwide Ins. Co., 772 A.2d 868 (Md. App. 2001).
The TCPA provides that callers who violate the do not call section by calling a numbered registered on the do not call list twice in 365 days are liable for statutory damages in an amount of $ 500 per call (excluding the first call if the violation is based upon the do not call list) and, if the violation was willful, the court may award an additional amount of up to $ 1,500 per call.
MANY TELEPHONE SOLICITATION CALLS ARE NOT COVERED
The do not call list does not govern the conduct of many charities and political organizations.
There is often a fine line between calls which advertise a product or service and those which do not advertise. For example, courts have dismissed lawsuits alleging that pre-recorded calls seeking job applications were advertisements.
The TCPA’s National Do Not Call List provisions allow telemarketers to call customers : (1) who the caller has an established business relationship with; and (2) who consented to receiving advertising calls from the caller. 2012 TCPA Order, Para 18 (Feb. 15, 2012).
The FCC has ruled that, even where the residential phone user has an existing business relationship with the caller and has consented to receiving telephone solicitation calls, the called party can revoke their consent and even continue to do business with the caller :
“Once the consumer asks to be placed on the company-specific do-not-call list, the company may not call the consumer again regardless of whether the consumer continues to do business with the company. *** If the consumer continues to do business with the telemarketer after asking not to be called, … the consumer cannot be deemed to have waived his or her company-specific do-not-call request.”
2003 TCPA Order, Para 124 (July 3, 2003).
If you are receiving telephone solicitations on a number which is a residential phone which attempt to solicit products, services or property, you should read this information about how to revoke any consent you may have given.
WHEN CAN A TELEMARKETER COVERED BY THE TCPA’S TELEMARKETING PROVISIONS SOLICIT ME EVEN IF I’M ON THE NATIONAL DO NOT CALL LIST?
Even if a person has registered their residential telephone number on the National Do Not Call List, a company may call people : (1) with whom it has an existing business relationship (“EBR”); and who also (2) signed a writing which consented to their receiving telemarketing calls. Both parts of this exemption present several issues.
WHAT IS CONSENT TO TELEMARKETING CALLS?
Effective with the 2012 TCPA Order, the FCC revised its telemarketing rules to require express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and landlines. So, even companies that a consumer that the company transacts business with can no longer call the consumer to telemarket unless the caller has express written consent. 2012 TCPA Order, para 2 (Feb. 15, 2012).
The FCC concluded that a :
“consumer’s written consent to receive telemarketing robocalls must be signed and be sufficient to show that the consumer : (1) received ‘clear and conspicuous disclosure’ of the consequences of providing the requested consent, i.e., that the consumer will receive future calls that deliver prerecorded messages by or on behalf of a specific seller; and (2) having received this information, agrees unambiguously to receive such calls at a telephone number the consumer designates.”
2012 TCPA Order, para. 33 (Feb. 15, 2012) (emphasis added). The FCC also requires sellers to obtain the called party’s permission “without requiring,
directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.” Id. The requirement that the consent “must be signed” includes electronic signatures which meet the requirements of the E-SIGN Act including permission obtained via an email, website form, text message, telephone keypress, or voice recording. 2012 TCPA Order, para 34 (Feb. 15, 2012).
Despite the liberal provisions for consent to occur, many companies — even large companies — sometimes get this wrong — very wrong. If you are receiving prerecorded telemarketing calls to your residential phone, Mr. Petersen invites you to call him for a free case evaluation.
The FCC defined an existing business relationship (“E.B.R.”) as :
“a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber’s purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber’s inquiry or application regarding products or services offered by the entity within the three (3) months immediately preceding the date of the call, which relationship has not been terminated by either party.”
2003 TCPA Order, Para 113 (July 3, 2003). Although the term is “Existing Business Relationship”, the word “existing” should not be taken literally. Companies that had a business relationship with the called party can continue to call them for up to eighteen (18) months after the contractual relationship ends :
“A company’s prior relationship with a consumer entitles the company to call that consumer for eighteen (18) months from the date of the last payment or financial transaction. For example, a consumer who once had telephone service with a particular carrier or a subscription with a particular newspaper could expect to receive a call from those entities in an effort to ‘win back’ or ‘renew” that consumer’s business within eighteen (18) months.”
2003 TCPA Order, Para 113 (July 3, 2003). As stated above, a potential customer’s inquiry is sufficient to form an EBR for a period of 90 days.
The FCC has also ruled that not all communications are “inquiries”.
“The nature of any inquiry must, however, be such to create an expectation on the part of the consumer that a particular company will call them. As confirmed by several industry commenters, an inquiry regarding a business’s hours or location would not establish the necessary relationship as defined in Commission rules. By making an inquiry or submitting an application regarding a company’s product or services, a consumer might reasonably expect a prompt follow-up telephone call regarding the initial inquiry or application, not one after an extended period of time.”
2003 TCPA Order, Para 114 (July 3, 2003) (emphasis added). See also, H.R. REP NO. 102-317 at 14-15 (1991) (noting that if an investor had written to a mutual fund or responded to an ad requesting additional information, the fund’s manager could make follow-up calls. The Report also explains that a loan officer or financial consultant may call a telephone subscriber who had requested a loan).
The FCC’s telemarketing rules do not allow companies to call people who their existing customers refer to them. 2003 TCPA Order, Para 118 (July 3, 2003). But, the FCC’s rules do not stop some companies from engaging in this illegal practice. The FCC Orders reinforce the statutory language by expressly placing the burden of proving the defense of EBR on the company who placed the call :
“Any seller or telemarketer using the EBR as the basis for a telemarketing call must be able to demonstrate, with clear and convincing evidence, that they have an EBR with the called party.”
2003 TCPA Order, Para 115 (July 3, 2003).
ARE AFFILIATES OF COMPANIES OF A SELLER THE PURCHASER DOES BUSINESS WITH ENTITLED TO CALL THE PURCHASER?
In the 1992 TCPA Order, the FCC found that a consumer’s EBR with one company may also extend to the company’s affiliates and subsidiaries. 1992 TCPA Order, Para 34 (Oct. 16, 1992). In 2003, the FCC found that :
“consistent with the FTC’s amended Rule, affiliates fall within the established business relationship exemption only if the consumer would reasonably expect them to be included given the nature and type of goods or services offered and the identity of the affiliate. *** A call from company with which a consumer has not formed a business relationship directly, or does not recognize by name, would likely be a surprise and possibly an annoyance.”
2003 TCPA Order, Para 117 (July 3, 2003). A Verizon landline customer receiving a call from Verizon’s wireless affiliate should not surprise a customer. A call to a Chase Bank credit cardholder from Chase Timeshares, LLC probably would and may be a do not call list violation especially if Chase Bank’s cardholder agreement failed to list the fictional Chase Timeshares, LLC among the affiliates who the customer agreed to receive telemarketing calls from.
Sellers of the property, goods or services are often liable for the violations of the TCPA’s telemarketing provisions.
TO ADD YOUR TELEPHONE NUMBERS TO THE NATIONAL DO NOT CALL REGISTRY OR VERIFY THAT YOUR REGISTRATION IS STILL IN EFFECT
To add your residential cell phone or landline to the National Do Not Call List, or verify that your do not call registration has not been removed:
Once your residential telephone number has been registered in the National Do Not Call List for at least 31 days, the telemarketing calls may be violating your rights under the Do Not Call List.
According to the Federal Trade Commission’s do not call list page, a residential phone subscriber’s registration on the National Do Not Call List remains effective until the phone subscriber removes their name or the telephone number is no longer assigned to that subscriber. When the National Do Not Call List was initially established, a National Do Not Call registration was good only for five (5) years. 2003 TCPA Order, Para 31 (Feb. 15, 2003). At least one state (Florida) has a state Do Not Call List which expires after five years although Florida also incorporates the National Do Not Call List.
Registering a business telephone on the National Do Not Call Registry is legally void.
DO NOT CALL LIST VIOLATIONS OFTEN DEPEND UPON DETAILED DOCUMENTATION OF THE CALLS
It is critical to document these calls as accurately as possible including by saving any messages and taking thorough notes documenting any telephone conversations with the telemarketer. Here are some additional recommendations about how to document a potential TCPA case.
Some callers violate the do not call list so frequently, that they know to hide their identity and the ultimate provider of the product or service that they are selling. (Which burglar alarm company? Which extended warranty company?) Other telemarketers are sometimes a bit more up front about the product or service you must be “pitched” in order to obtain the promised vacation at a time share or vacation cruise. Sometimes, the person who receives the calls must express an interest in the property, product or service in order to identify these callers and sellers whose identity is concealed during the prerecorded message or even the initial sales pitch. If you speak with the telemarketer and they identify the seller of the product or service that they are offering, take detailed notes.
If you are receiving calls (1) to your cell phone; which are (2) from a company who you are reasonably sure is the company who is calling you — for example a company that you do business with — Mr. Petersen encourages you to consider filing a private case against the caller especially if they are calling you often.
Telemarketers often call only twice or, at worst, a couple of times. If the person who receives the calls were to pursue the violations on an individual basis, such a low number of calls would probably not justify a TCPA lawsuit. Mr. Petersen will investigate whether a class action against the caller (and the company whose product or service the caller is promoting) may be worthwhile.
If you would rather not file a lawsuit — regardless of on behalf of yourself or seeking to represent a class comprised of people who received similar calls — you can report the violation(s) directly to the Federal Trade Commission by clicking here. The FTC is not going to bring an action on your behalf or even advise you whether you may have valuable TCPA claims.
WANT YOUR TELEPHONE TO STOP RINGING SO DARN OFTEN?
To get started towards enjoying your privacy again, call or contact Don Petersen today.
CALL DONALD E. PETERSEN AT
407 – 648 – 9050
Or, provide a brief description of you potential case and along with your contact information for a free case evaluation.
(C) 2017 – 2018 Donald E. Petersen