Consumers Can Sue Telemarketers in Federal Court over Robo Calls

Posted January 25, 2012 in Consumer Law by Ada Kulesza

If you have credit, you might have received these voice mails:

“This is important information regarding your unsecured debt.”

Or maybe you’ve gotten a “special offer” for a cruise or a home security system.

The caller sounds like the artificial voice of a robot — and it is. These calls are placed through a machine: an “auto dialer” or “robo caller.”

What you may not realize is that those robots and auto dialers are illegal, and you have legal recourse if they harass you repeatedly. The Supreme Court decided that consumers can litigate against telemarketing companies in the federal court system.

Marcus Mims of Ft. Lauderlade, Fla., filed a lawsuit in federal district court against a company called Arrow Financial Services, complaining that the company had called him repeatedly, harassing him about student loan payments and leaving him prerecorded messages. Mims argued that Arrow “willfully or knowingly” violated the 1991 Telephone Consumer Protection Act (TCPA) by using an auto dialing system and prerecorded or artificial voice. After the lower courts threw out the case for lack of jurisdiction, Mims took his case to the Supreme Court.

The case has far-reaching implications both for consumers and telemarketing companies, prompting the National Consumer Law Center and National Association of Consumer Advocates to file briefs as “amicus curiae,” meaning “friends of the court,” while the Association of Credit and Collection Professionals (ACA) International and the National Federation of Independent Business Small Business Legal Center filed amicus briefs on the side of Arrow.

The Supreme Court unanimously agreed that suits under the TCPA could be tried in the federal system, since nothing in the act’s language specifically precludes the federal courts from trying the cases.

Mims will refile his case in federal district court, seeking an injunction and damages.

Don’t Call Around Here No More

Under TCPA, telemarketers aren’t allowed to use automated dialing or prerecorded voice to call you without your permission. If they do, you can file a lawsuit. Damages are $500 per violation.

The tricky part, though, is tracking them down. Matthew P. McCue, a Massachusetts lawyer specializing in consumer law, says consumers who want to take telemarketers to court need to put their law enforcement hat on.

Matthew P. McCue

If you’re getting a robocall to your cell phone, it’s actionable,” he says. Debt collectors can use robocalls to your house, but the law’s strict when it comes to calling cell phones. “Home security, mortgages, cruises, travel, credit relief, taxes, credit counseling – it’s illegal.”

“One of the things the industry does is, they anticipate 99 percent of the people who get the calls won’t want the calls, and give as little information as possible. And they’ll ‘spoof’ the caller ID, so the people behind the call are very difficult to identify. So you have to figure out who the caller is, by pressing 1 (when they prompt you to). And you basically ask questions to find out who’s behind it. Unfortunately you have to feign interest in the product to investigate an illegal call,” he says. “I have some clients who have a special credit card for these purposes.”

His clients will pay the deposit on whatever the “special offer” is, to create a financial paper trail. If the process sounds tricky now, it gets tougher, McCue says.

“The telemarketer will ‘lawyer up’ with the biggest firm in town. [In one instance] the defense raised First Amendment issues and jurisdictional issues. They used every legal trick in the book to avoid liability,” he says.

McCue paints a colorful picture of a subculture, a world of telemarketer versus consumer, and he says the battles get very serious. For instance, in 2011 the debt collection industry tried to pressure Congress to amend the TCPA to allow debt collection companies to call consumers any time, day or night. Fortunately, their lobby was met with fierce opposition, and ultimately failed.

If you want to know whether a company is breaking the law, here are the basic telemarketing rules:

  • They can’t call your house before 8 am or after 9 pm.
  • They can’t use prerecorded voices or automatic dialing to call your cell phone or any phone that results in a charge, including places like health care facilities or an elderly person’s room.
  • Non-profits can use recorded voices to call your home number. Other companies can use recorded voice or auto-dialing if you’ve given prior consent.
  • No one can call you if you’ve put your number on the National Do Not Call list.

(A more comprehensive guide to the rules can be found on the FCC website.)

The number of suits being filed against telemarketers is on the uptick, as Mims refiles his case seeking damages. Consumers who’ve gone over the rules and determined that they’re being harassed can look for a lawyer specializing in consumer law. For a small claim, you can follow our guide to small claims, found here. You can also file a complaint with the Federal Trade Commission, which keeps a database and goes after companies with the most complaints.

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