Hey, How Do I Sue Telemarketers Who Ignore The Do Not Call List?

We’ve been getting a lot of emails lately from people who are fed up with telemarketers ignoring the Do Not Call list and want to take the bastards to court. Now, to be fair, sometimes the people who email don’t fully understand what is and what is not allowed under the law.

It’s important to understand that if you have a business relationship with the company, they are allowed to call you for 18 months after your last purchase, delivery, or payment. However, if you tell them to add you to their own personal “do not call list” they are supposed to stop calling, even if your number is not registered on the do not call list.

So, let’s say that you’re sure that Whatever, INC. is ignoring the Do Not Call list and they’ve called you more than once over a 12 month period.

What can you do?

Well, we’re not lawyers, and let’s face it, we don’t even watch Law & Order, so we decided to ask renowned smarty-pants consumer lawyer Sam Glover for some guidance.

He pointed us to a section of the Telephone Consumer Protection Act Of 1991 that deals with a consumer’s right to seek damages from Do Not Call scofflaws. Here it is:

(5) Private right of action

A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State—

(A) an action based on a violation of 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 up to $500 in damages for each such violation, whichever is greater, or
(C) both such actions.

It shall be an affirmative defense in any action brought under this paragraph that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection. If the court finds that the defendant willfully or knowingly violated the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

Sounds to us like it might be a lot of fun to file a lawsuit in small claims court if you can prove that the telemarketer contacted you more than once in 12 months. You could get your phone records from the phone company and start recording your calls.

Here’s some information about small claims court and how to use it.

Anyone tried this? Let us know what happened! tips@consumerist.com


Caveat Emptor Blog

Telephone Consumer Protection Act of 1991 [Wikipedia]
§ 227. Restrictions on use of telephone equipment [ Cornell University Law School]
(Photo: amyadoyzie )

Comments

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  1. My father had a friend who recorded all of his calls from telemarketers as well as kept a written record and always asked to be on the do not call list. He apparently made a good deal of money each year with this plan. I think the first time he got money was enough to pay for the tape recorder.

  2. Caroofikus says:

    Here’s a nice website with a little more detail. I haven’t filed a suit against anybody, but I haven’t gotten more calls from anybody when I mention the TCPA.

    [killthecalls.com]

  3. kingofmars says:

    How can I sue a telemarketer that doesn’t have a valid phone number on the caller Id?

  4. harumph says:

    I tried to get info from Verizon as to who was calling me but they told me they wouldn’t release the info. It’s almost as if they don’t care.
    Sad.

  5. mike says:

    @: I assume if you get a subpoena, you could get that number. I’m not sure how a private citizen can obtain a subpoena without having a lawyer.

    I wonder how to record every call. Hell, I have problems just trying to record ONE call.

  6. Ridiculous! Absurd! You don’t watch Law & Order?! I didn’t think anything else was even on TV anymore…

  7. WiglyWorm must cease and decist says:

    @kingofmars: Telemarketers are required to give you their business name and the address the business is located if you ask.

    Of course, they’re also required to have a valid caller ID.

    The problem you run in to is that a lot of these companies are off shore…

  8. @linus: Speakerphone and a tape recorder. There are also phones with built in recorders. When I was a secretary, our business phones had a record option, which came in very handy at times for both business AND personal.

    Also, I’ve heard of people taking pictures of their caller ID with the time/date stamp and what number appeared, so the company couldn’t say the call wasn’t authorized by them.

    One company kept calling 3-4 times a week about my factory warranty being expired on my 2002 Saturn Vue… gee REALLY, you don’t say. After repeatedly saying I was on the do not call registry, asking them to remove me… I finally answered the phone, was very nice, asked the mans name and company name and said loudly “I am now speaking to so and so company on May 15th, 2008 at 8:45pm, regarding their blatant ignorance of the do not call registry. My number is blah blah blah. Multiple attempts have failed to remove my number from their list, after 3 months of requests. I am now recording this conversation….” CLICK.

    And they never called again.

  9. econobiker says:

    These guys use computer autodialing- you may get two or three from the same “firm” using different spoofed caller id numbers.

    so OK ENOUGH EVERYBODY READ THIS, you need to do three things with these scammy callers-

    1. Copy the spoofed (ie FAKE) number which shows up on the caller ID. Then GOOGLE it (just f-in google it!) and you most likely will bring up others who have reported it on such sites as whocallesme.com, 800notes.com, callercomplaints.com, whocalls.us, etc reporting the same scam callers. You may get some actual company information from these sites (or you may not) from what others have reported- see number three.

    2. Play along like you need what ever service they are selling in order to get the company’s “name”, these scammy callers typically hide behind multiple phone trees to “prequalify” you for their junk. DO NOT even bother choosing the “remove from call list” option as most reports say that this does nothing but disconnect the call. Get names, company information, phone numbers by playing along with them. Tell them that you absolutely want to hear about health insurance, or a free trip, or a time share. But tell nothing about your actual name or account numbers and never tell them you want to purchase. Get any information you can- you can say you are in the process of moving your bank account from one bank to another so you need to call them back so you need a call back number. Tell them you don’t have a bank account due to moving but can mail a money order so you need a mailing address.

    3. Report back any information you get on those websites ( whocallesme.com, 800notes.com, callercomplaints.com, whocalls.us, etc ) so others can cross reference against the scammers. You can also cross search your new info to see if it appears on various websites such as consumerist, ripoffreport, my3cents, etc. This may get you even more information. You may even be able to find a home website for the scam company.

    Now you should have more info with which to file an FTC complaint…

  10. starrion says:

    I have been getting calls every couple of days from warranty services. They won’t give an address other than to say they are in “atlanta” and their headquarters is in Arizona.

    They call cell phones, business lines, DNC registered lines, – anything at all.

    I would dearly love to sue them.

  11. ZebadiahHaermm says:

    … one needs a more practical approach to such telemarketers.
    Make the abusive telemarketer ‘want’ to remove your number from their call list.
    Waste ‘their’ time by letting them connect you to their live sales-person a few times — tying up their employee & phone line… with no ‘sale’ made.
    Thus, a professional telemarketing outfit will soon label your telephone # as unproductive… and delete you from their own call list.
    You don’t even have to actually speak to their salesperson — as soon as you get a live person on ‘their’ line , put the phone down and ignore it for few minutes — the objective is to waste ‘their’ time… so they will ‘learn’ not to call you.

  12. sarabadara says:

    This is very helpful information. Thanks, Consumerist!

  13. @kingofmars: I always just report them to Lisa Madigan (Illinois AG) with a transcript of the call (which my answering machine records). The AG can track them down without a number.

    A couple of times telemarketers in violation even offered me money through the AG’s office.

    It’s easier than going to small claims, particularly with fly-by-night places, and it works.

  14. IphtashuFitz says:

    @: If you really want to do this then go the small-claims route. Once you’ve filed a case you can file a subpoena to obtain the records from Verizon. They won’t (shouldn’t) ignore a legal subpoena. Depending on your local courts obtaining a subpoena should be fairly easy. Just go to the clerk and ask for some assistance. Usually it’s just a form you fill out.

  15. impetus says:

    An online resource on this very subject:
    [killthecalls.com]

    It was referenced in an MSNBC article:
    [redtape.msnbc.com]

  16. mike says:

    @verucalise: I don’t like the speakerphone route because its half-douplex. I bought a recorder but it’s very annoying to set up and keep in place. I haven’t been able to find a phone with an on-board recorder.

    I do, however, keep logs of all my calls. The thing of it is that I have turned the ringer off since I only use it when I work from home. Maybe I should turn it on now and go sue-crazy!

    In all seriousness, one should only pursue legal action if the company keeps calling AND you have the time and resources to spend on a legal case. Some people don’t have the time. Others do.

  17. harumph says:

    @: I did this with a car warranty place. I played along and got all the info I needed. I filed 2 complaints with the FCC and one with the BBB. The BBB basically dismissed my complaint because it is a company hired as a subcontractor to a larger insurance company and the larger company claims they are not responsible for what their subcontractors do(much like military contractors in Iraq). The FCC just sent a confirmation of my complaint and that was it.

    Bottom line is that I don’t think any business will be penalized for this sort of behavior in the current atmosphere of Ultra-Lassiez-Faire

  18. econobiker says:

    @impetus:
    Just to note:
    killthecalls.com hasn’t been updated in over 1 year plus their horror story page is bloated with spam postings…

  19. Sam Glover says:

    I’m putting “smarty-pants lawyer” on my business cards.

  20. mike says:

    @Sam Glover: I’d love to get your business card if you actually do this.

  21. kaptainkk says:

    I want those fuckers shut down that keep calling my work cell phone telling me that the warranty on my car is about to expire. When I call the number back that shows up on the caller ID, it’s always disconnected. They are spoofing the numbers they are calling from. Who are these people and how are they allowed to get away with this?! Why should we have to file complaints when businesses like this will get nothing but a slap on the wrist and start up again under a different name?!

  22. econobiker says:

    @linus:

    Is this the connector?

    [www.radioshack.com]

    while listed for wireless phones it seems to work on some cordless land lines…

  23. econobiker says:

    @: Please read my post above from before you continue b*tchin about the phone number spoofers…

  24. mike says:

    @: Yes. I posted it under a different link apparently.

  25. Sam Glover says:

    @linus: I do not handle TCPA cases, but there are plenty of lawyers who do. You can find them at the NACA lawyer database.

    I focus on suing debt collectors, for the most part.

    Also, @: and @linus: the Olympus phone recording device is by far the easiest thing to use for recording phone calls.

  26. kaptainkk says:

    @: That’s good information and all but who has time, money, and other resources to do everything it takes to find out who they actually are and then file complaints. I certainly don’t. The bottom line is that they should not be allowed to operate and inconvenience people. I don’t think a public caning would harsh enough for the people that operate with such business practices.

  27. mike says:

    @Sam Glover: Oh, I just meant a business card for estetic purposes. A laywer’s business card that says “smart-pants lawyer” is pretty cool.

  28. Sam Glover says:

    Forgot the link. Here’s the phone recording thingy: [www.amazon.com]

  29. Sam Glover says:

    @linus: Awesome. I’m on it. I’ll put it on my blog.

  30. mike says:

    @Sam Glover: I tried this but didn’t have much luck. I think I’d fare better with a flash recorder that can export onto a computer.

  31. @linus: Olympus makes a digital recorder w/USB connections. It’s about ~$50 at office depot/staples.

  32. impetus says:

    @: Yeah, it’s definitely not the most awe-inspiring website, but the main content is still good. The sections “The Law” and “How To Sue Telemarketers” are helpful to folks who are interested in this subject.

  33. Anonymous says:

    before you start recording calls, make sure you review your state’s rules regarding recording calls. it’s usually illegal (as in criminal, not civil) to just hook up a recorder to the phone and not tell the other party you’re doing it.

  34. mike says:

    @nazgul00: This has been covered many times here on consumerist. The conclusion has been that if the other party has stated that they are recording the phone call, you can too.

  35. kingofmars says:

    Thanks for all the advice. I normally don’t speak with the companies, they just leave a loud over modulated message on my answering machine. The small claims court and subpeona sound like a good idea, especially since I am chaning my home phone to message rate service. I only get 65 free calls a month, so I could claim that I was hurt finanacially.

  36. Demonbird says:

    What about automated telemarketers? I’ve been on the do not call list for over a year now and I am called DAILY by this one automated telemarketing system.

  37. Anonymous says:

    this is a good remedy. Nothing works better than hitting them in the pocketbook

  38. supercereal says:

    The Do Not Call List does not apply if you already subscribe to services from a particular company, right? My insurance and credit card companies constantly call me about new and upgraded services, but as I understand it, it’s perfectly ok for them (along with non-profit/charity organizations) to do that…

  39. typetive says:

    Can you sue in small claims for Federal violations? I thought it was only state/county/city relief.

    Like Demonbird, I want to know what I can do about those danged computers that call.

    • Dave Jacobson says:

      Yes, you can sue in small claims for violations of the Do Not Call list. The federal law specifically states that cases must be heard in state courts. I just sued a company that was calling me and I won $1,256.

  40. mike says:

    @typetive: I have usually just listened to the automated message and then wait for the “contact us if you’re interested” number.

    Sometimes they will put you directly through to an operator.

  41. ct_price says:

    Dynametric Telephone Transmit Patch – TMP-636 (Cheap on Ebay >$20)
    +
    Audacity freeware sound editor (FREE)

    +
    50 States Eavesdropping/Wiretapping Rules ([www.rcfp.org])

    = Maybe a payout in small claims court

  42. Demonbird says:

    @typetive:
    Yeah, still hoping for an answer. The thing calles me daily around 10:30 in the morning and I am really tired of it.

  43. stacye says:

    @: A friend of mine will put down the phone and start vacuuming. When she’s done, she hangs up the phone.

  44. Canino says:

    If I get a call while I’m on my computer, I just go straight to the FCC site and file an online complaint while I’m talking to them. Then I inform them that’s what I did and I hang up.

    I was getting a ton of telemarketing calls on my mobile phone. Never got any before, then one week all of a sudden it was ringing every 10 minutes. I started filling out FCC complaints (the number was already on the DNC list) and after about a week the calls suddenly stopped again.

  45. speedwell (propagandist and secular snarkist) says:

    Are the rules similar for cell phones? I have a prepaid cell (I never use even close to the minutes on the very lowest tier monthly plan), and I get calls from some telemarketing outfit with a Colorado number.

  46. theczardictates says:

    I know the FCC gets far too many complaints to respond individually, but it would be nice if there were some place we could easily read about Actions it has taken.

    Anybody know of such a thing?

  47. scooby2 says:

    My father-in-law has been getting up to 18 (yes 18) calls per day on his cell phone from 201-621-5696. It has been going on for about 4 months now. The cell provider says they cannot do anything about it. It is definitely a computer calling. When he answers it immediately hangs up. Its an Allegiance number which XO now owns but they are not very helpful. I’d love to see him get awarded $500 per call (not that they would ever pay). :)

  48. CrazyMann says:

    @IphtashuFitz: Verizon does not keep records of incoming calls,only outgoing. An incoming call could originate from anywhere in the world.

  49. femaleconsumerist says:

    I’m REALLY tired of getting scammy calls about “renewing my car warranty”… I don’t even own a car. I get them weekly, and being put on the do not call registry hasn’t helped, unsurprisingly. A friend of mine has been getting these calls too (so has everyone else in the country, the internet tells me), and he said that when he pressed #1 to speak to a “representative” and pretended to be interested, but they hung up on him after he asked them, twice, what the name of their company was, (he wasn’t taking “it’s a consumer warranty” as a sufficient answer). And they change their number every time too, so it seems there’s no way to launch a complaint against them. But if anyone knows a better way to stop these horrible calls (pressing #2 for “take me off the list,” option during the automated call, of course, hasn’t worked), I’d appreciate it.

  50. Marimomo says:

    Can I sue the army for trying to recruit me all the time?

    No?

    Ok…

  51. Anonymous says:

    @: I keep getting this one too and now they call on an unlisted number. Anyone got any advice for that?

  52. jumpycore says:

    @kingofmars: *69 them and it’ll give you the number

    • Happy Tinfoil Cat says:

      Just tried it. “I’m sorry, the call cannot be completed as dialed. CA 04 GN”
      The cell had displayed (503) 468-5002 when they called so I thought your *69 would work, but it didn’t (even with a valid number)

  53. trixare4kids says:

    Does anyone know what the rules are about a collection agency calling a business? I’m a manager of department with about 70 guys who work in the field – There’s only a few of us in the office, so I help answer incoming calls when the secretary is not at her desk. At least 5 times a week we get collection agency calls for these field employees.

    The guys can’t be reached at the office, they are in the field and have cell phones and radios. We don’t pass on their cell phone numbers OR take messages for collection agencies.

    We tell them repeatedly that this is a business and that they need to call the person at home, but they continue to call. I have stated “This is a place of business, and I’m asking you to take this number of your list and do not call here.”

    They usually respond by telling me that the person they are trying to reach is the only person who can ask that the number be removed. That’s got to be B.S. right?

    We KNOW it’s a collection agency because when they I ask who is calling, they say something vague like “It’s Sheila from Oregon.” I then ask the nature of the call and they get uppity and say “it’s personal”. I tell them that the employee cannot take personal calls at work, please call them at home.

    A number of them have asked to speak to “my supervisor”
    After telling them not to call here anymore (again) I either flat out hang up on them or I say “one moment while I put you through to a supervisor” and then transfer them in the customer service queue to waste their time.

    Any ideas?

  54. AgentTuttle says:

    Keep an air horn by the phone.

  55. "I Like Potatoes" says:

    My family lives in military housing and my husband is fond of telling telemarketers that they are calling a military installation and if they call again they will be reported for harassing a member of the U.S. Armed Forces and have to deal with the U.S. Government. It’s total B.S. but these people are so stupid it usually works.

  56. consu_consu says:

    I currently have Dish Network, and I get repeated calls from them asking me to either change my plan or upgrade it. Moreover, the calls originate in foreign countries. So how do I deal with them?