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American Bar Association - Defending Liberty, Pursuing Justice

 

Vol. 16, No. 2

Did You Know?

Features

 

Telemarketer 3: The Rise of the Machines

Technological advances in communications have provided businesses with more opportunities than ever to acquire new customers and maintain existing ones. These same advances, however, have contributed to the rapid deterioration of individual privacy rights. Growing concern over protection of these privacy rights has resulted in the creation of new laws and services.

Artificial Calls/Unsolicited Fax Advertisements

Perhaps the most notable form of relief from aggressive telemarketers is the Telephone Consumer Protection Act (TCPA), found at 47 U.S.C. § 227. Congress enacted the TCPA to address mounting concerns over the increased use of prerecorded, artificial telephone calls and the resulting invasion of consumers’ privacy.

The TCPA regulates artificial calls to both residential landlines and cellular phones. Though the law treats each of these categories differently, the TCPA essentially prohibits the use of an “artificial or prerecorded voice” to communicate a nonemergency message to an individual without that person’s prior express consent.

Pursuant to its statutory authority, the Federal Communications Commission (FCC) has created a number of exemptions to this general rule. The most significant of these exemptions spares companies that possess an “established business relationship” (EBR) with the targeted individual. The FCC has ruled that the EBR exemption expires 18 months from the date of the last payment or transaction between the parties. Additionally, the person being contacted may end the EBR exemption at any time by simply informing the caller that its telephone calls are unwanted.

What’s the penalty for violators? It’s substantial, given the number of calls made by telemarketers and other professional calling firms. The TCPA entitles a successful plaintiff to recover statutory damages of $500 per call. Moreover, a court may award treble damages if it finds that the caller knowingly or willfully violated the statute.

The TCPA also prohibits most unsolicited fax advertisements and regulates when sending faxes is acceptable. For faxes, as with artificial phone calls, the EBR exemption permits transmission of some unsolicited messages. However, even where the TCPA allows faxes, businesses still are generally required, first, to provide on the fax a detailed notice, including contact information, explaining to recipients how they can opt out of future faxes from that sender and, second, to explain the measures required to opt out of future transmissions. For detailed instructions on how to comply with an opt-out request, visit the FCC Web site at www.fcc.gov. The penalties for fax violations are the same as those for call violators.

If the recipient of an unwanted communication doesn’t want to sue the party making the unwanted artificial call or sending the unsolicited fax advertisement, the recipient can direct a complaint to the FCC online at www.fcc.gov/cgb/complaints.html or call the FCC’s toll-free number, (888) 225-5322. Mail written complaints to the FCC at:

Federal Communications Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries & Complaints Division
445 12th Street, S.W.
Washington, DC 20554

The TCPA, unfortunately, doesn’t provide legal recourse for live-person solicitations. However, registration with the National “Do Not Call” Registry may prevent most of these telephone calls. Register free online at: www.donotcall.gov, or call, toll-free, 888-382-1222. The person seeking registration must call the registry from the phone number to be registered.

Direct Mail

New technology enabling businesses to gather information regarding a consumer’s preferences has also led to an influx of direct mail advertisements. Direct mail (a.k.a. “junk mail”) has many forms, among them store circulars, sales catalogs, free trial CDs, and even preapproved credit card applications. Unlike artificial phone calls and faxes, no current federal law prohibits this type of marketing. Instead, a person must undertake a number of different measures just to attempt to decrease the amount of junk mail received.

For example, contacting the Direct Marketing Association (DMA) Mail Preference Service to opt out of such mailings can successfully remove the requesting person from many national mailing lists. However, that opt-out is limited to five years, so one must renew the opt-out for succeeding periods. Opting out online is free at www.dmachoice.org/dma/member/regist.action, while written mailed requests require a $1 check or money order be sent to:

Mail Preference Service
PO Box 643
Carmel, New York 10512.

Registration with the DMA doesn’t stop mailings from other, smaller mailing services that aren’t part of the DMA.

To prevent receiving preapproved credit card applications, consumers must call 888-567-8688 (888-5-OPT-OUT), or visit www.optoutprescreen.com. For credit applications, the individual may request to be removed from lists that generate those mailings either for five years or permanently.

E-mail

Individuals communicating through e-mail may at times feel that their privacy rights are being invaded. Thus, the Electronic Communications Privacy Act (ECPA), 18 USC § 2511, makes it unlawful under certain circumstances for someone to read or disclose the contents of an electronic communication.

The ECPA is a comprehensive law containing several exceptions. It distinguishes primarily between messages in transit and those stored on computers, providing less protection for stored messages than for messages intercepted during transmission. For example, an Internet service provider may legally view and disclose a private e-mail if either the sender or the recipient of the message consents to the inspection or disclosure.

Individuals who bring a successful action under the ECPA may recover equitable or declaratory relief, punitive damages, reasonable attorney’s fees, and costs of the litigation.

Conclusion

The examples I’ve provided here merely touch upon the various state and federal laws and services available to consumers, so make a detailed review of your own state’s laws and services to ensure that you are adequately representing your clients. Hopefully, this discussion has generated an appreciation for the different types of privacy rights that exist for these communications and, in turn, illustrated a few approaches to championing those rights.

Frank J. Borgese, a partner at Graham Law, P.C., in Buffalo, NY, concentrates his practice on protecting consumer rights. A member of the National Association of Consumer Advocates, he primarily sues debt collectors for violating the Fair Debt Collection Practices Act. Contact him at fborgese@grahamlawpc.com.

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