Legal Blog

How to Stop Unsolicited Marketing Calls and Make Money in the Process | Part Seven

A Guide to Starting a Self-Represented Lawsuit in New York

Questions & Answers

What if the pre-recorded message is an avatar?

Companies these days frequently use computer-driven techniques though which they imitate a human respondent. On the call, a computer responds based on things you say. These software-driven telephone responses, known in the industry as “avatars,” allow an agent to communicate with a call recipient by playing recorded audio snippets instead of using his or her own live voice in response to what the call recipient says. This type of soundboard technology message is considered to be a pre-recorded message under the TCPA.[1]

 

What about text messages and faxes?

Both text messages and faxes are covered under the TCPA.[2]

 

What if I can find the defendant on Facebook or LinkedIn, but I can’t find an address and he won’t accept service of the summons and complaint when I send it to him via Facebook or LinkedIn messenger?

It is possible to ask a court to allow you to serve a defendant on Facebook or LinkedIn. I have done it. It is a complicated topic that I will cover in another article. Reach out to me at tbruening@offitkurman.com to discuss further.

 

Shouldn’t I start a class action?

In most cases, no. My experience is that most of these marketers and lead-generators are not big fish. They simply do not have the money or resources to pay out large class-action payments.

 

That said, if you receive unsolicited marketing calls from a large, recognized national company without having provided your consent, reach out to me at tbruening@offitkurman.com.

 

What about state cause of actions?

Many states have enacted causes of action similar to the TCPA. For example, in New York, a plaintiff can also sue under New York General Business Law 399-p. Find out what your state offers in terms of consumer protection laws and include them in your complaint. NYGBL 399-p adds an extra $50 per call plus treble damages for willful conduct.

 

Does all this refer to only cell phones or also landlines?

The TCPA covers both cell phones and landlines.[3]

 

Defendants claim that I was not on the do-not-call-registry when the call was made.

The TCPA allows for a safe harbor provision – if the call took place within 31 days of the registration, they will not have violated that part of the TCPA.

 

Don’t I need to go to federal court?

The TCPA is a federal law, but you do not have to go to federal court. The TCPA states that a “person or entity may, if otherwise permitted by the laws or rules of court of a State, bring [an action] in an appropriate court of that State…” (47 U.S.C. § 227 (b)(3), emphasis added). The U.S. Supreme Court confirmed that federal and state courts have concurrent jurisdiction over private suits arising under the TCPA (Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012)).

 

I have a pre-existing business relationship with the caller. Does that mean I consented to the calls?

Your consent to the calls has to be in writing. If you have ever consented to very lengthy terms of service with the entity that called you, it is a good bet that you consented to the calls… but review them to be on the safe side. You can also demand proof of consent from defendants once they claim to have your written consent.

 

What if I receive automated calls from people claiming to call from my bank or the IRS?

Those are not marketing calls – those are scams. They are trying to get your bank information, credit card numbers, computer passwords or otherwise defraud you. Your best bet is to simply hang up.

 

The pre-recorded message states that I should dial “1” to be connected to an operator, and dial “0” to stop future calls. Why not just dial 0 each time?

Telemarketers are required to provide the option to stop further calls.[4] However, doing so does not stop the calls in my experience. Your number gets removed from this caller’s internal list (maybe). But it remains on the lists that are bought and sold online and the calls continue to come in.

 

Opposing counsel claims that his clients are not liable for the lead generator. Is that true?

In 2013, the FTC clarified this issue, DISH Declaratory Ruling, 28 FCC Rcd at 6583, para. 24 et seq.: Sellers “may be held vicariously liable under federal common law agency principles for a TCPA violation by a third-party telemarketer.” This means that if defendants did not have an agreement with the lead generator or did not ratify its behaviour, they may not be liable. But that is a question of fact, which could be addressed in discovery. You could ask for evidence, i.e. for whatever agreement, they have with the lead generator, or ask them to disclose the address and identity of the lead generator and then sue that entity instead.[5]

 

What if I am not sure that I have found the right company or person?

Then do not file the lawsuit. Suing someone is not something to do lightly; being on the receiving end of a lawsuit is unpleasant and doubly so if you’ve sued the wrong person. I had several incidents where I did not file suit because I was not 100% certain that I had found the right person.

 

Some automated calls that I receive are not marketing calls. Can I still sue?

The TCPA excludes political, emergency, charity, and similar causes. In short, if someone is not trying to sell you something, you should not sue.

 

I also get a lot of unwanted marketing emails…

Unwanted marketing emails are also a problem. Unfortunately, the CAN-SPAM Act of 2003, which regulates email marketing, does not include a private cause of action. Under the Act, marketers must provide the option to “unsubscribe” from the emails. If they do not, you can report the emails to the FTC by forwarding them to spam@uce.gov.

 

What if defendants don’t have any money?

These lawsuits are usually settled for relatively small amounts, a few thousand dollars. Most of the marketers who make these calls can either afford to lose this much or have insurance that will protect them.

 

This is interesting. Where can I learn more?

www.TCPAblog.com is a good resource and if you are ever in New York City, stop by my office.

 

Is the law on this likely to change soon?

The TCPA is a highly-litigated field of law, mostly in the area of class actions. Some interesting developments in the near future include:

  1. The U.S. Supreme Court has granted certiorari on (i.e. it will review) a TCPA case to decide whether the Federal Communications Commission or the courts will dominate the interpretation of the TCPA (PDR Network LLC, et al. v. Carlton & Harris Chiropractic, No. 17-1705).[6]
  2. Late last year, the FCC decided to create a database for reassigned numbers. This will have impacts on businesses, who currently have to make efforts to ensure that the numbers they called were held by the persons in their lists.[7]
  3. The FCC has recently released its report on illegal robocalls and the government plans and initiatives. Worth a read.[8]

 

What if I have no time for this?

Most people don’t. That is why these marketing calls continue. The point of this exercise is not to make lots of money or to quit your day job. The point is to reclaim your phone lines, to get to know the court system, to step out of your comfort zone, to have some fun, or just to have a story to share over dinner.

Theodor D. E. Bruening is an associate attorney at Offit Kurman, P.A. etc.


[1] FTC Letter from Lois Greisman, Associate Director, Director of Marketing Practices, FTC, to Michael Bills, CEO, Call Assistant, LLC (Nov. 10, 2016)[2] “Text messages are “calls” subject to the TCPA” FCC 2015 Declaratory Ruling and Order FCC 15-72 ¶ 107; see also 47 C.F.R. 64.1200(a)(4).

[3] FCC 2015 Declaratory Ruling and Order FCC 15-72, ¶ 4.

[4] 47 C.F.R. 64.1200(b)(3)

[5] These articles are also useful: https://us.eversheds-sutherland.com/NewsCommentary/Legal-Alerts/213630/Legal-Alert-Whos-calling-Standards-for-third-party-liability-under-the-TCPA, https://us.eversheds-sutherland.com/NewsCommentary/Legal-Alerts/208832/Legal-Alert-Do-as-I-say-not-as-I-do-third-party-liability-and-the-TCPA

[6] https://www.scotusblog.com/case-files/cases/pdr-network-llc-v-carlton-harris-chiropractic-inc/

[7] https://us.eversheds-sutherland.com/portalresource/Dec-13-2018-Second-Report-and-Order.pdf

[8] https://docs.fcc.gov/public/attachments/DOC-356196A1.pdf


ABOUT THEODOR BRUENING

tbruening@offitkurman.com  |  212.380.4111

Theodor has practiced for a number of years in national and international litigation and arbitration. His practice mainly focuses on dispute resolution in construction, architectural, defamation and commercial cases. He also advises on immigration and labor law.

 

 

 

 

 

 

 

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