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Sorry, but this is not what you think it is.

First, the judge is not saying he buys it, only that it is not a "frivolous" defense. That is a high standard. All she gets to do is make the argument that the $750 violates the due process / excessive fines clauses.

Second, this defense will fail. I run into this argument all the time in telemarketing and spam fax cases, where the law gives you $500 in damages if you are merely sent a spam fax or a telemarketing call. I have beat it in every case with simple legal arguments:

The US Supreme Court has upheld an analogous statute which imposed a $300 liquidated damage provision for overcharges of only a few cents, noting the "due regard for the interests of the public" and "the numberless opportunities for committing the offense." St. Louis I.M. & S. RY. Co. v. Williams, 251 U.S. 63, 67 (1919).

See also Bowles v. American Stores, 139 F.2d 377, (D.C. Cir. 1943) cert. denied 322 U.S. 730 (1944) (upholding mandatory $50 damage award (equal to $500 today, adjusted for inflation) for 4 cent overcharge.

• It shall be unlawful for any person within the United States or
  any person outside the United States if the recipient is within
  the United States--
  (A) to make any call (other than a call made for emergency
  purposes or made with the prior express consent of the called
  party) using any automatic telephone dialing system or an
  artificial or prerecorded voice--
  (i) to any emergency telephone line (including any
  ``911'' line and any emergency line of a hospital, medical
  physician or service office, health care facility, poison
  control center, or fire protection or law enforcement
  agency);
  (ii) to the telephone line of any guest room or patient
  room of a hospital, health care facility, elderly home, or
  similar establishment; or
  (iii) to any telephone number assigned to a paging
  service, cellular telephone service, specialized mobile
  radio service, or other radio common carrier service, or any
  service for which the called party is charged for the call;
  

The Telemarketing Sales Rule gives the Federal Trade Commission (FTC) authority to regulate telemarketers. But a consumer can't generally sue under this law.

The Telephone Consumer Protection Act (TCPA) gives the Federal Communications Commission similar authority, and expands it to junk faxes and prerecorded calls. It is this law, the TCPA, that also gives the consumer the right to sue the bastards in your local small claims court for $500 to $1,500 per violation.

Go down to your local small claims court and sue the bastards. It is a very rewarding experience!

A list of TCPA court cases regarding the national do-not-call list (as well as junk faxes and prerecorded telemarketing call) is at http://www.tcpalaw.com/free. FWIW, both the FTC and the FCC have jurisdiction here, but the FCC law 47 U.S.C. 227 lets the individual consumer sue in addition to the FCC going after the perps.

A list of TCPA court cases regarding the national do-not-call list (as well as junk faxes and prerecorded telemarketing call) is at http://www.tcpalaw.com/free. FWIW, both the FTC and the FCC have jurisdiction here, but the FCC law 47 U.S.C. 227 lets the individual consumer sue in addition to the FCC going after the perps.

A list of TCPA court cases regarding the national do-not-call list (as well as junk faxes and prerecorded telemarketing call) is at http://www.tcpalaw.com/free. FWIW, both the FTC and the FCC have jurisdiction here, but the FCC law 47 U.S.C. 227 lets the individual consumer sue in addition to the FCC going after the perps.

"company has coerced prospective clients into signing up for its service through aggressive telemarketing"

In my case, this is certainly true. My number was listed on my personal, non-commercial website [floridacaves.com] whois registration information. They called the number to advertise their services. Unfortunately for them, it was a personal cellular number and it has been illegal for more than a decade to place telemarketing calls to such a number.

I sued them last year under the Telephone Consumer Protection Act of 1991 [47 USC 227] and won a $5,149 small claims court judgment against them (for making a commercial prerecorded call to a cellular number, for failing to send me a copy of their do-not-call policy, for failing to train their staff in proper use of the do-not-call policy, and for willfully or knowingly violating the law).

I just hadn't gotten around to collecting as I thought they might have gone out of business or hidden assets, however, if they want to use their name again on public records, then they are still in business and collectable. I'll have to file to domesticate my judgment in Nevada, but that should not be too hard. Once cannot let a company like this get away with strong-arming people when they do it themselves, in my personal opinion (gained from my own experience with them).

Just because my number was listed in my website registration, it does not grant them prior EXPRESS permission that is *required* before that may place commercial calls to a cellular number.

The TCPA gives you specific private right of action to go against the companies that violate the law. Do your own research at http://www.tcpalaw.com/

The CAN SPAM Act did one good thing... it amended the federal junk-fax law ... it used to read:

It shall be unlawful for any person within the United States --

and as of Jan. 1, 2005 it now reads:

It shall be unlawful for any person within the United States or any person outside the United States if the recipient is within the United States--

TCPALaw.com has copies of a lot of court cases against junk faxers, some of which came from out of the country.

Ummm. read the law. It is already illegal to tie up more than one line of a business at the same time using an autodialer.

$500 MANDATORY damages for each call.... haul their arse to small claims court. You should have logs in the phone system to prove the calls overlapped and they tied up more than one line at the same time.

47 U.S.C. 227(b)(3)(D):

It shall be unlawful for any person within the United States--

[irrelevant snippage]

(D) to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously.

The rules apply to telemarketing calls into the US regardless of where they originate. The FCC has already hit a foreign junk faxer for over a million dollars. Matter of 21st Century Fax(es) Ltd., -- FCC Rcd. --, 2002 WL 27541 (F.C.C.) (Jan. 9, 2002). They tried the "we are not in the US" defense and it was rejected.

Keep a log (I have a printing callerID box, and even if there is no callerID transmitted, it still logs the exact date and time) .... a subpoena to the phone company aond voilla - ID of caller.

The local phone companies don't like it known, but they all can produce what is calls a "call detail report" or verbatum, that shows all incomming and outgoing calls INCLUDING LOCAL calls for any number... but those records are not kept indefinately and you have to get them ASAP.

And don't call BS on me... I get them all the time, and I have collected over $100,000 from telemarketers and junk faxers, suing them in small claims court under the TCPA. Soon I'll start going after do-not-call list violators too.

As for automated recordings, they are ALREADY ILLEGAL - they have to pay you $500 for each violation... more if they don't properly identify themselves. Play along, and leave a "fake" name with your real phone number... when someone calls you asking for that fake name, bingo, you got them.

It's not "crap" but the decision is wrong. There is some infringment of speech here, but it is a permissible regulation of commercial speech. There are LOTS fo regulation of speech.. libel laws... making threats ... truth in advertising ... no billboards in certain locations.

As a programmer. I like flowcharts. This is the best explination I have ever found for understanding how First Amendment stuff is decided:

http:/www.tcpalaw.com/free/speech.pdf

Since the FCC rules (depend on the intent of the caller) are differenet from the FTC rules (depend on the content of the call) the are less subject to challenge.

This was explained in detail by the TCPALaw.com site. The FCC rules do not distinguish calls based on content - they distinguish on the intent of the caller. The FCC rules at 47 CFR 64.1200 define "telephone solicitation" as a call or message initiate for the purpose of a sales call.

That is a very important distinction in First Amendment law.

The FCC rules have been around since 1992, and they were supposed to be the ones to create a national do-not-call list.... they didn't in 1992, and by 2000 it was clear one was needed so the FTC started taking steps to see if they could fill the gap. Then last year the FCC decided they didn't want the FTC to have all the glory, so they jumped on the bandwagon.

The court held that the FTC (Federal Trade Commission) lacked a statute giving it the authority to create a national do-not-call list.

The other shoe (and the bigger dog) in this is the FCC... which explicitly *does* have the authority to create a national Do-Not-Call list. See 47 USC 227.

The only problem is that the FCC has exempted telemarketing calls and faxes from radio stations.

The Commission sought comment on calls made by radio stations or television broadcasters that encourage telephone subscribers to tune in at a particular time for a chance to win a prize or similar opportunity. . . . We conclude that if the purpose of the message is merely to invite a consumer to listen to or view a broadcast, such message is permitted under the current rules as a commercial call that "does not include the transmission of any unsolicited advertisement" and under the amended rules as "a commercial call that does not include or introduce an unsolicited advertisement or constitute a telephone solicitation."

E=mc^2 is actually an approximation as any high school calculus student can tell you. Einstein dropped the additional terms from the converging series 1 + ab + 1/2 (a^2+a)b^2 .... for simplicity (a common step in mathematics). They are more signifigant at high speeds obviously.

I use the real (http://www.tcpalaw.com/emcsqd.pdf) derivation of E=mc^2 when trying to convince people that genius is nothing sepcial - just insight.

As others have pointed, yes Virginia, there is a law. 47 U.S.C. 227. and the implementing regulations at 47 C.F.R. 64.1200.

And you get to play federal enforcement officer. Under the statute, any telemarketer that violates the regs, you get to drag them into your local small claims court and fry them for $500 to 1500 per violation. I've done it fir the last 5 years, and have collected (yup... cashed the checks and got the money) over $100,000.

Now the interesting part. The FCC is holding a rulemaking proceeding and asking for public comments on 1) what problems consumers are currently experiencing with telemarketing and junk faxing, and 2) asking for comments on what changes there should be to the 47 C.F.R. 64.1200 regulations.

File your comments!!! You can file comments via a web form or e-mail at the FCC web site (Docket 102-278).

A consumer has a simplified CGI form with instruction and sample comments here.

Telemarketers are regulated. There are strict laws that they must follow (In the USA, not sure about laws in other countries, maybe someone will post with other information). If they do not follow these laws, you can sue for damages. I see no such laws regulating spammers.

Information about laws regarding telemarketing and mass faxing can be obtained at http://www.tcpalaw.com as well as how to sue for damages, if you wish, if they did not follow said laws.