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January 18, 2014, By Kevin Hunt
Paula Bazydlo Bleck, like a lot of homeowners, is tired of robocalls from telemarketers. Her worst robo-nightmare includes regular recorded calls from a power-washing business that are, so far, unstoppable.
“Despite being on the Do Not Call [Registry] list,” says Bleck, a Wethersfield resident, “we have been receiving these for years. . . . Filing complaints with the Do Not Call Registry, the state and the FCC doesn’t seem to have any effect. Is there nothing we can do to stop this guy?”
If you can find him, take him to court. New rules effective last Oct. 16 in an update to the Telephone Consumer Protection Act have given consumers new powers against telemarketers.
>> All telemarketing calls, except those manually dialed that do not contain a recorded message, are now prohibited without the consumer’s prior written consent. (The rule also applies to calls made to cellphones and text messages.)
>> The established-business-relationship exemption has been eliminated. Until mid-October, if a consumer purchased something, or perhaps opened a credit-card account, that relationship allowed telemarketing calls from the business without the consumer’s consent. Not anymore.
Penalties for failing to comply with TCPA regulations remain unchanged. It’s $500 for every unsolicited call or text message, $1,500 if the telemarketer “willfully or knowingly” sends it after the consumer opts out. The new rules should only add to an already burgeoning number of lawsuits.
“Don’t take it on the chin,” says Sergei Lemberg, a consumer attorney in Stamford. “A lot of times people take it on the chin for reasons unclear. There’s a law that protects people. They should know about it. To telemarketers, this [TCPA update] is a humongous difference.”
TCPA-related lawsuits increased close to more than 60 percent in 2013, according to preliminary statistics from WebRecon, which tracks U.S. district court cases, to 1,781 cases from 1,101 in 2012. Two years ago, says Lemberg, his firm handled only a small number of telemarketing cases. Now they represent half the firm’s caseload. Lemberg says a 2012 Supreme Court decision that allows TCPA cases in federal courts, not only in state courts, has made it easier to track down and collect penalties from telemarketers.
“If I sue a telemarketer in federal court,” says Lemberg, “I’m going to hit them up for $500 to $1,500 a call. I’m going to get a judgment against them, assuming they are viable. I register that judgment in the federal district court where they are located and I go ahead and do what people do with a judgment — lien the business property, bank accounts, whatever.”
TCPA regulations apply to all telemarketers, not only catch-me-if-you-can scammers. Last year, before the TCPA update, Bank of America agreed to pay $32 million to settle claims that it made harassing debt-collection robocalls to customers’ cellphones. Papa John’s agreed to pay $16.3 million for sending pizza promotions by text message. Google faced a $6 million settlement in a texting case.
Daniel Blinn, a consumer lawyer in Rocky Hill, has not represented anyone in a TCPA case but he’s familiar with the fallout, as a consumer.
“I recently got a notice of a class action under this law and I submitted a claim,” Blinn says. “And I was shocked at the amount of damages. I wound up getting a check for $500. And I was shocked — I thought it would be a fraction. That was a result of very few people submitting claims.”
Any unauthorized call or text makes the sender vulnerable. That includes credit-card companies, debt collectors, retailers, electricity suppliers and power-washing businesses. Exemptions include recorded calls by nonprofit organizations, political calls and other non-telemarketing calls such as school-closing alerts.
Lemberg says he’s representing a consumer awarded a $45,000 judgment in a case against Hughes Network, which so far has refused to pay.
“Well, it’s a $45,000 judgment and they are going to pay,” he says. “If, knowing the penalties, a telemarketer or bank or debt collector nonetheless violates the law, then they deserve to get whacked. And if they get whacked enough, they’ll stop doing it.”
If you’re not part of a class-action suit against a robocaller, what do you need to file a suit and where do you file it?
>> If you haven’t already, add your home phone and cellphone numbers to the National Do Not Call Registry (www.donotcall.gov). Telemarketers must remove you from their lists and stop calling within 31 days.
>> Keep a record of the telemarketer’s phone number (or numbers), the date of each call, whether they’re recorded calls or include a human. Save all voice and text messages from telemarketers.
>> Opt out of a telemarketer’s robocalls and texts and note the date. If the telemarketer doesn’t stop, penalties for each subsequent call or text could triple, to $1,500.
An app like PrivacyStar, for Android and Apple devices, identifies incoming telemarketing calls and text messages to mobile phones. It also has a direct-filing feature for complaints to the Do Not Call Registry. The company says the app accounted for almost 10 percent of violations reported to the FTC last year. The app also stores much of the information needed to sue the telemarketer.
“What we have seen, time and again, regardless of the rules,” says Jonathan Sasse, the company’s chief marketing officer, “a lot of these telemarketers are banking on the fact that they are not going to have any action taken against them. . . . Their behavior really hasn’t been curbed much. But our customers have been able to take that all the way through to completion with settlements in their back pockets.”
Any consumer can file a suit, without an attorney in small claims court, which has a $5,000 limit. Blinn says if you can identify the caller, it’s worth doing.
“But that is the hard part,” he says. “A lot of them are rogue operators.”
Lemberg says, in some cases, he has simply named the phone number and “unidentified caller” in a complaint. Then, once the complaint has been filed in federal court, he subpoenas the company that owns the phone service to find out the actually owner of the phone number.
“It’s risky,” says Lemberg. “Sometimes I sue guys and I don’t even know who it is. All I see is a building with no name. I have to have enough cases so the risk can’t sink you. . . . Maybe 5 to 10 percent of our cases we can’t serve them. It’s a lot of legwork up front.”
TCPA cases also do not allow the consumer to collect attorney’s fees against a telemarketer. Consumers usually retain an attorney on a contingency basis, with no fees unless money is awarded in the case. Lemberg says he takes between 30 percent and 40 percent of each settlement.
Sometimes a local company might settle a small-claims case, but Lemberg says it’s more often a waste of a consumer’s time in court.
“I would never advise anyone to do it,” he says. “Suppose you sue a telemarketer from Ohio in a Connecticut small claims court and get a judgment for $5,000,” he says. “What are you going to do with that judgment?”
In small claims court, where judgments are difficult to enforce, not much.
A telemarketer, of course, could avoid any robocall lawsuit by using humans who dial the phone manually, then speak to the consumer.
“I settled a case in North Carolina for a guy for $50,000 and he was so excited,” says Lemberg. “He said, ‘I’m buying myself a new trailer!’ You know, it’s OK. It really is OK, because on the one hand you have a humongous corporation that chooses to use an autodialer to make all its calls. . . . You take money from them, you put this money in this guy’s pocket. I feel very good doing that.”
Original story: At the Hartford Courant
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