This week’s question comes from Jane in San Francisco who writes: “I am pestered from 8 a.m. to 9 p.m. by “robocalls” that have no person on the line when I say hello even though I am on the “do not call list”. The numbers they call from are either blocked or not functional when I try to call them back. Help! Is this legal?
Jane, every reader of The Examiner, including myself, feels your frustration. These calls are not legal. Under the Telephone Consumer Protection Act (TCPA) and subsequent federal legislation, including the Do Not Call Implementation Act of 2003, “robocalls” or prerecorded telemarketing messages are illegal unless you have given the company written permission to call you. The prohibition also covers text messages to wireless numbers.
When obtaining your express written consent, which can including using an electronic form for your signature, the marketer must disclose that giving your permission will allow the marketer to make robocalls and/or text messages and that providing consent is not a condition of purchase. An existing business relationship with the merchant does not constitute consent to be robocalled or texted.
Keep in mind these rules apply to auto-dialer, prerecorded calls. The law is different in regard to live, in-person calls. Even if your number is on the national Do Not Call Registry, it only prohibits sales calls. You may still receive political calls, informational calls, debt collection calls, charitable calls, and telephone survey calls.
Turning back to robocalls, these calls are proliferating because it is cheap and easy for scammers using the internet to call from anywhere in the world and cover their tracks by using faked, or “spoofed”, caller ID information. Since you very likely never gave your written permission to be robocalled, these illegal telemarketing operations get your number either by purchasing it, by taking it from a public listing, or by using a computer to randomly guess it.
What can you do to make the calls stop? The frustrating reality is that there is little you can do to affirmatively stop the calls. The FTC recommends several steps to take when you get an illegal call. First, hang up the call immediately without pressing any buttons to “remove yourself from their list” because they ignore that request anyway. Second, make sure to write down the phone number and if possible, get the name of the company so you can go on the FTC’s Do Not Call website and file a complaint. You can only file a complaint if your number has been on the Do Not Call list for at least 31 days and you have either the phone number or the name of the company that called. Although the FTC does not investigate individual claims, if they get enough complaints about the same number or company they can take action.
If you are skeptical that the FTC will actually do something to stop the calls, your skepticism may be well founded. From the Do Not Call list’s creation in 2003 to 2013, the FTC has brought 105 lawsuits resulting in $118 million in civil penalties. The largest of these penalties was $7.5 million against a mortgage investment firm, which makes one wonder if the fines even make a dent compared to the large potential profits to be made.
I received a telemarketing robocall while I was writing this article and I decided to answer it in the name of science. After pressing 1 to be connected with a sales representative, I asked the rep if she was calling me for one of the FTC approved reasons because I was on the Do Not Call list. The rep quickly told me to just press 3 to be removed from the list next time and hung up abruptly. The irony of the situation is I told her I was on the Do Not Call list and she said I would be called again later where I can then take myself off the list I am not supposed to be on in the first place.
Jane, while government enforcement actions have proven ineffective in stopping robocalls, consumers possess a powerful weapon: the class action lawsuit. The TCPA allows consumers to bring lawsuits against the marketer and seek an injunction against the calls plus obtain damages of up to $500 for each violation. In the event of willful violations, the consumer may seek triple damages, or $1,500, for each violation.
The class action mechanism enables a handful of consumers to represent tens of thousands of similarly affected consumers and change corporate practices by hitting them where it hurts, their wallets. Consumers have recovered hundreds of millions in settlements of class action lawsuits against banks and financial institutions charging them with violating the TCPA. As a result, many of the largest banks and financial institutions in the U.S. have ended their unsolicited robocall marketing programs. If you want to end the robocalls for yourself and others, try to get the name of the telemarketer and contact a consumer attorney an experienced class action law firm.
By attorney Christopher B. Dolan, owner of the Dolan Law Firm. Email Chris questions and topics for future articles to help@dolanlawfirm.com
