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How To Sue the Auto Dialers
Before proceeding, decide if you think the stress is worth it. You're almost certainly stepping outside your comfort zone here.
Small Claims can be frustrating because the rules and procedures vary so much from one judge to the next, and judges differ wildly in how they interpret the laws. Their own biases come into play as well: they usually deal with cases involving people who have actually lost money or have been wronged in a serious way, and they may resent someone coming to court just to sue over a phone call.
In one particular case that provides a good example of what I'm talking about, I sued a spammer who came to court and claimed he never sent the mails and didn't even know how. When the judge stopped berating me long enough for me to continue, I then produced a tape recording of a conversation between me and the spammer, in which I had pretended to be an interested customer, and he offered to send 5 million e-mails for me for $500, and explained how they were routed through China to hide the origin. The judge got extremely flustered for a minute and then started to accuse me of "entrapment" (even though the recorded phone call took place after I had received the original spam), and she never commented on the fact that the defendant had just been caught lying under oath. I hadn't really expected him to go to jail for that, but I thought I would at least win the case; I didn't.
If you go to Small Claims court you have to be prepared to deal with that kind of Twilight Zone / Franz Kafka stuff. But the worst that can happen is that you'll lose.
How the law applies to non-profitsTo clarify something important: In general, you can sue non-profits for $500 for calling your number and playing a pre-recorded message, unless in the recorded message they (a) identify themselves at the beginning of the message; and (b) give their return phone number (other than the number of the machine making the call) somewhere in the message. Most pre-recorded messages from non-profits do not meet these requirements, particularly the second one.
The federal law which states this is divided into two parts. The Telephone Consumer Protection Act, section (b)(1)(B), states:
"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... to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)".and part (b)(3)(A) states:
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State... an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.
Now, part (2)(B) says that the FCC is authorized to make federal rules and may grant certain exemptions to non-profits. The actual rules that the FCC came up with are in the Code of Federal Regulations as 47 CFR 64.1200. The complete text of 47 CFR 64.1200 is here, but the relevant sections that apply are:
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(a) No person may: [...]
- (2) Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c) of this section.
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(c) The term telephone call in Sec. 64.1200(a)(2) of this section shall not include a call or message by, or on behalf of, a caller: [...]
- (4) Which is a tax-exempt nonprofit organization.
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(d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:
- (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
- (2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual.
The wording is important. Section (a) prohibits parties from making phone calls using a pre-recorded voice. Section (c) says that non-profits are exempt from the blanket ban in part (a). But then section (d) says that "All artificial or prerecorded telephone messages" must include a return phone number -- in other words, even if a party is allowed to make pre-recorded calls at all, they still have to conform to the restrictions in part (d).
I think this clearly applies to non-profits as well, for two reasons:
- First of all, part (c) does not say that non-profits are exempt from the entire law, it only says that they are exempt from the blanket ban in part (a) -- it does not say anywhere that they are exempt from part (d).
- Second, there's a simpler way of looking at it: if part (d) doesn't apply to non-profits and other parties that are exempt from the complete ban on pre-recorded calls, then who does it apply to? It doesn't apply to commercial companies, because under part (a), commercial companies can't make unsolicited pre-recorded calls at all, so it would make no sense to have a separate section requiring them to include a phone number.
You probably don't need to keep a portable tape recorder by the phone just to record the call and prove that you received it. If you show up in court and claim that you received the pre-recorded phone call, it's unlikely that the non-profit's representatives, if they show up, will lie through their teeth and claim that it never happened. If they lose in court, all they lose is $500, but if they get caught lying under oath, they could in theory be convicted of a felony. (Although to tell the truth, sometimes the enforcement of perjury laws in Small Claims court is pretty lax.) The important things to note about the phone call are:
- Does the organization making the call identify themselves at the beginning of the message?
- Did they give their return phone number anywhere in the message?
Even if the pre-recorded message gives the name of the organization, that may not be the actual party that used the machine to make the call. For example I got a call with a message identifying the caller as "Bob Thurston, Washington State Patrol Troopers Association president", but when I found his number and called him, he said the calls were actually being made by a group called Taxpayers for R-51. If I'm doing legwork to find out who made the call, sometimes I say that I'm interested in running my own campaign using a machine to dial numbers and play a message, and I want to find out how they did it. It's not illegal to lie.
Once you're reasonably sure you know the name of the organization that did it, you need to find the address where you can serve the papers on them. There are two broad approaches to this:
- Go to the Secretary of State's website for the state in which the organization is located, go to "Corporations" search, and search on the organization's name. If they are listed as a corporation in the state, there should be an address given for their "Registered Agent" as well. You're done; that's the address you need.
- If that doesn't work, unfortunately the remaining methods are a lot less precise. Your best recourse is to try and find the group using Google, and see if you can locate their street address.
If you found the entity's address through their listing on the Secretary of State website, you're in luck, since companies are not supposed to list a P.O. Box or rented mailbox as their registered agent's address. But if you found the address through Google, it may not be a real street address. If it isn't, this is often where I hit a dead end, and with "only" $500 at stake I usually don't have the time to keep looking.
But if you think you've got their real address, keep going!
Filing in Small ClaimsAt this point you might be tempted to contact the organization first and negotiate a legal settlement as an alternative to suing them. What I've found however is that for cases this small, organizations usually won't take the threat of a lawsuit seriously until you actually serve them with legal papers, so I wouldn't bother negotiating until you've done that. (Also, if you try to negotiate in advance, this has the added disadvantage that once they know you're going to sue them, if they're a really underhanded bunch of people, they might try to make it harder for you to serve the papers on them.) If you think it's rude to just sue someone out of the blue -- well, shit, they called your house using a machine, didn't they?
So, in Washington at least, you can get a blank Notice of Small Claim form just by sending a self-address stamped envelope (should probably include about $1 worth of postage on the envelope since the forms can be heavy) to the local District Court and requesting the form. Then you can even file the case by filling out the form and mailing it back with a check for the Small Claims filing fee ($25 in Washington), plus another self-addressed stamped envelope. They'll mail you back the forms to be served. You never even have to go to the courthouse.
However, I'd recommend sitting in on part of a Small Claims calendar at the local courthouse to see how it usually works, and to make sure you wouldn't be nervous going through with it if the other side doesn't settle. Then while you're there, you can get the Small Claims form and file the case.
They will give you one copy of the Small Claims form for your records, and one copy that has to be served on the other party within a certain time frame (in Washington, 10 days before the court date). The clock is ticking, so now you have to serve the papers on the other party.
Serving the papersBefore having the Small Claims papers delivered to the defendant, you may want to attach a letter explaining that you're suing them for a phone call received on such-and-such a date. I tend to go that route, since I have nothing to hide anyway, and in any case the more you communicate, the more chance of getting a settlement. So, throw that in with the papers and then get ready to serve the papers on the defendant.
When you filled out the Small Claims form, it probably came with a pamphlet describing how to serve the papers on the other party. I'm describing the rules for Washington State; the rules in other states are similar.
There are two ways to serve the defendant: hiring a process server, or serving the defendant by mail.
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Hiring a process server. This is the preferred method if you don't mind spending about $40. (If you win, the cost of service of process is added to the amount of the judgment, so you'll get it back if the defendant pays the judgment.) Using the online yellow pages, just search in and around the city where the defendant lives, for (a) private process servers, and (b) the sheriff's department. I've called process servers and sheriffs in many different cities, and they charge amounts ranging from $10 to up to $150 for substantially the same service, and I've never figured out why. Sometimes the sheriff is the cheapest, and sometimes it's one of the private process servers. But whoever you use, make sure to find out what they require you to send them. They always require a letter of instruction tell them where to serve the papers on the defendant. In addition, be sure to ask them:
- can they serve papers on behalf of a private individual, or will they only do it on behalf of law firms?
- do they require a money order or can they take a plain old check?
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Serving the defendant by mail. Go to the post office and have the papers mailed to the defendant by certified mail with a return receipt. Here, you have to make a choice. IF you think the organization will actually show up in court (usually, if they're a well-established group and they don't want to be hit with a deluge of lawsuits because one person sued them and won), then certified-return-receipt is all you need. But if you think they might NOT show up and you want to have airtight evidence that you served the papers on them properly, you need to also send by restricted delivery to a person (i.e. a real human, not a company and not the organization itself) who is an officer of the organization. If you have their registered agent's name and address, that's the person to send to by restricted delivery.
If you send by restricted delivery, it goes out with a little green card attached to it, and if the postal worker is doing their job, they should deliver the envelope only to the person listed as the recipient, and require them to sign the card and write their name legibly above their signature. Then, the green card gets mailed back to you. However, very often I'd find that the cards would come back with illegible signatures and no names or the wrong names. If you use this method, try writing on the envelope: "Attention USPS! This envelope MUST be delivered to the person named as the recipient, they MUST sign for it and their name must be printed LEGIBLY above their signature." I never got around to trying this, since by that time I'd given up on serving papers by mail, and always used process servers.
Basically, the trade-off is that the stricter you want to be about how the papers are served by mail, the greater the chance that it won't work (e.g. if the mailman can't find the person), but the more solid your proof of service will be if they don't show up in court.
If you serve the defendant using a process server, you'll get back an affidavit of service in the mail. If you serve them by mail, you'll get a return receipt that (if the judge accepts it) will constitute your proof of service.
Negotiate with the defendantOnce you get your proof of service back in the mail, now the defendant knows they're being sued, so you can try to negotiate a settlement. This depends on your style, and theirs.
One thing to keep in mind: Don't worry if they threaten to tell the judge that you filed a lawsuit and then tried to "blackmail" or "extort" money from them or "shake them down". Judges encourage parties to settle lawsuits out of court. Unless the judge thinks your lawsuit is bogus to begin with, they're not likely to be swayed by the defendant claiming you tried to negotiate a settlement.
But assuming your efforts to shake down, extort, blackmail etc. the defendant were unsuccessful and they don't want to settle, the next step is your day in court.
Preparing for courtMake sure you bring all of the following:
- Your proof of service (see previous steps)
- A copy of the Telephone Consumer Protection Act with parts (b)(1)(B) and (b)(3)(A) circled.
- A copy of 47 CFR 64.1200 printed out from this link, which shows the text of the law with proper indentation and formatting and makes it easy to read. Circle parts (a), (c), and (d).
- A copy of 47 CFR 64.1200 printed out from the official government site. Just to prove that the stuff you printed out in the previous step wasn't something that someone made up and posted to the Web as a prank. However the way they have it laid out is harder to read.
- A transcript of the phone call that you're suing over, if it was left as a voice mail, or if you managed to grab a recording of it with a handheld tape recorder when you first got the call.
Before the judge appears, a mediator may ask if you want your case to be handled by mediation. If the other party is present, I'd recommend trying this option. The thing to remember about mediation is that if you and the other party can't reach an agreement, you can always go back before the judge. You're not giving up your day in court by agreeing to mediation.
If you can't reach an agreement, or the other party doesn't want mediation, or the other party isn't there, then when the judge calls you to present your case, show the judge your proof of service, your record of when you received the phone call, and the laws that make it illegal and specify $500 in damages.
What happens next varies wildly, depending on the judge. Some of them are polite and some of them yell at almost everybody. Some of them hate junk calls as much as you do, and some of them hate amateur wannabe lawyers clogging the court's time because they saw one episode of Law & Order and thought they could do it themselves. The future at this point is a fog that I can't predict, so I'm not going to try.
All that I can shout blindly into the fog is that judges do appreciate it if you stick to the law, and not try to make any emotional speeches about why you think the issue is so important. (All that happened to you anyway was that you got a phone call, which means you're not going to win the sympathy game anyway, so don't play!)
You're out of the fog? You won? Great, keep reading!
After you winIf the defendant doesn't pay after 30 days, call a local collection agency and ask them what you have to do for them to try to collect the judgment. Collection agencies normally don't charge any money up front, and only take a percentage of what they're able to collect. Unfortunately it can be as high as 40 or 50 percent. The upside though is that they don't get paid if they can't collect, so you know they're going to try.
From that point onward, the collection agency will be able to give you better advice than I can, so my narrative thread ends here, hopefully with you holding a judgment in your hands.
If enough people do this, maybe the problem will go away. Then again maybe all that will happen is that more non-profits will start putting the name of their organization and their phone number in the pre-recorded calls that they make, which means that you can't sue them. Then your only recourse is to call them up and chew them out, so make it good!
I'm all cell phone now, so I can understand why _NOW_ I don't get any of these calls. But for years we had a landline -- the same number for years, too. We never got any solicitations, unwanted spam phone calls, attempts to switch long distance service, or recorded announcements. Ever!
That phone number was listed on the web, in the phone book, in my e-mail sig, pretty much all over the place. I used it on applications for frequent shopper cards, etc.
I've always been confused why some people get harassed, and others don't. I don't use credit cards or banks or stock investment companies -- is it the financial industry that sells that information the most often? Anyone work for a company that mines phone numbers?
Wow, this guy has far too much time on his hands. I can understand the desire to sue annoying telemarketers and politicians of an opposing part, but your own candidate or ... nonprofit organizations? "Sorry Mr. Smith, we can't provide your insulin shots this month because we've been sued while looking for contributions." This seems a little sick.
His essay reads like a scam or an advertisement. Starting out with "Do you HAVE what it TAKES?" makes me think this guy wants something in return, or makes a TON of money from his lawsuits and just wants to exclaim to the world he's hot stuff. This is probably the type of guy who posts his telephone number all over the web then sues the people who innevitably call him.
My suggestion is that if you dislike telemarketing calls so much, get listed on the National do-not-call registry. Not perfect, but a lot better than getting wrapped up in petty lawsuits against NPOs.
Crack - Free with every butt and set of boobs
Happy Dude promised me that if I sent $1 to some address on Evergreen Terrace I would have eternal happiness. Why would I want to sue eternal happiness?
Given the numerous threads/posts here about how litigation-happy this country is, what is a story like this doing on the front page? I mean, while I can see this is a clear shot at some free money, it's sort of exactly the problem we all have been complaining about when stories break about SCO, Jack Thompson, and recently SGI.
I'm interested to see how the Slashdot majority weighs in on this, (note I said majority, not vocal minority of asshats). It seems like we might set an example and find other means of stopping these calls that doesn't involve litigation, so to not add further weight to the argument that the US law system is upside down. What do you think?
Raging in an online forum won't do anything for the world around you. To see change, you must take action.
Sorry OP, but your desire to sue everyone just boggles me -- most boggling is the fact that you seem to be surprised that judges berate you when you sue people over phone calls.
You need to take a cue from your Canadian neighbours. When someone phones you with an autodialer, you hang up and move on with your day. You don't harbor resentment and anger about it, and you don't bring them to court -- you just let it drop. And you know what will happen? Your blood pressure will decrease. You'll become happier. And you will stop perpetuating this kind of lawyer-centric society.
I've been getting about two of these suckers a day on my answering machine. I never actually listen, but just delete. Now that I know it's a potential profit center, they might be worth listening all the way through to see if they qualify for further action. Thanks for the info on how to finally discourage these bastards.
Money, and from the telemarket community. We could set up a fund dedicated to calling the owners of these telemarketing companies during dinnertime.
"Mr Johnson?"
"This is he."
"Yes, we'd like to offer you $100 for buying our aluminum siding within the next 48 hours..."
"I'm sorry, but I'm not interested"
"Would you like to refinance your house? rates have never been lower..."
"Uhhh...no thanks.."
"Could you take the time for a quick 3 minute survey?"
"Well, I don't think I should..."
"Ok, first question: Are telemarketing companies the scum of the EARTH, or simply localized scum within their communities?"
"Now, I don't think..."
"Congratulations sir, you've won an absolutely free vacation in Hawaii!"
"But I already have a...."
"All you need to do is sell 50 of these hats that have 'I'm with stupid' stitched into the cap. Unfortunately, the printer messed up, so they just say, 'I'm stupid'. We'll send these out to you right away"
"Would you just leave me alo..."
"Sir, the Democrats and Republicans could take this election if we aren't careful. Evidently, they've got the asshat telemarketing vote all cinched up. We would strongly encourage you to get on a rainbow wig, go out on state street and encourage people to vote Independent. Our motto this year is 'No, really, it's not a wasted vote'"
"AAAAUUUUUGGGGHHHH!!!"
"Sucks to be you sir" *click*
Two big words of warning: 1) This law is probably unconstitutional where political speech is concerned. Political speech is more protected than mere commercial speech, so while it may be able to stop sales call harrassment, it won't stop solicitations for political organizations. Also, it won't stop calls from companies with whom you have a pre-existing business relationship (i.e. your phone company), unless you specifically tell them (preferably in writing) that you do not want to be solicited in the future. 2) I've tried using this law to chase junk faxers and it is an enormous waste of time. You can catch the small-timer local advertisers (by suing them personally and joining the junk faxer, if you can find them), but the penny-stock faxes will keep coming through. Usually they're out of state and domesticating a local judgment to their home state and executing on it is near impossible. Not to discourage anyone, but this will not bring down the big junk fax/phone spammers (and depending on what you make an hour, may not be worth the time you invest in it).
Anyone who's had dealing with the court system here in the U.S. would know that you want no part of it.
...
You: Hi, I'm here to file my small claims court grievance towards this political party.
Claims Court Window: Hmm, you need to take this form across the street, 3rd floor, room 314.
You: Oh. But you're the Small Claims Court window...what's in 314?
CCW: That's the filing window. Once your claim is filed, then any future dealings with the court will begin here.
You: Ah. Makes sense. Thanks.
You (at window 314): Hi, I'm here to file for Small Claims Court.
314: Small claims? How'd you get here? This is the window for filing for divorce court.
You: But the woman in the Small Claim Courts window said 314 was where I file.
314: Lemme see that. No...go talk to her again. She should be able to help you. Next!
And around and around it goes. If you ever do file, expect to wait 6 months, then be asked to come in at 8 in the morning so you can sit outside the courtroom until your case is called at 11 so the judge can set a date for your next hearing in 2 months. That's it.
But hey...it might be worth the money!
Screwing telemarketers for fun and profit
It may have advice such as
"Be brief". Judges have more caseload than they want. What happens when you ask for the time of a busy person and drone on and on and on and on and on and on?
"Be gone". If the other party doesn't show up, you have a default judgment. If you stick around to observe the spectacle of justice and the other party shows up late, the judge might feel entitled to restart proceedings.
IANAL, but I still think that I'm qualified to point out that filing a lawsuit based on an essay posted to Slashdot is a really stupid thing to do.
That was a lot of research and writing for a stupid knee jerk reaction to a rather simple and short-lived annoyance.
...they will just outsource the calling to Indian callcenters.
Imagine that!
Yes, I am a biological organism. All rumors to the contrary are just that, rumors.
If its just for money its not worth it.. assume you make $20/hr and if you spend 30Hrs of you time on this shit, you are loosing $600. If its not for money, still those companies are not going to stop making calls just because some jack-ass tried to get $500 from them.
1. Do more research. There is much more to the law than the OP mentions including....wait for it....exemptions for political calls. Imagine that. And for pre-existing relationships, research surveys (provided they are real surveys, not disguised sales calls), etc. There is also a mishmash of state laws to consider - many of which have not been well tested in the courts.
2. If you have the time and inclination and are willing to do the additional research, go for it. You are doing the rest of us a favor.
3. If you would rather have some fun instead (only for live person calls), use the anti-telemarketer script found here: http://www.xs4all.nl/~egbg/counterscript.html
~~~~~~~
"You are not remembered for doing what is expected of you." - Atul Chitnis
I keep track of these calls. If they're about issues I have a position on, I ignore them. But if they're on issues I'm undecided on, I generally vote against the people who are annoying me with recorded announcements.
Last election I had a tough time because on a few proposals, both sides were bugging me about equally. So I voted against the side whose recording pissed me off the most.
I used to do this for elected positions as well, but this year my strategy is simpler; I wouldn't vote for a republican to be a damn dog-catcher. I'll vote Martian Invaders party if I have to in order to vote against a republican.
It looks like he might not have read all of Sec 64.1200:
64.1200(3) The term telephone solicitation means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message:
* (i) To any person with that person's prior express invitation or permission;
* (ii) To any person with whom the caller has an established business relationship; or
* (iii) By or on behalf of a tax-exempt nonprofit organization.
Suing every living thing is a pecculiar way of life. I guess it doesn't exist in many other countries than the US. Am I wrong?
What drives people to want to sue everything and everyone? Paranoia? Desperation? Routine? Feeling inferior? Just what is it?
Ellidi
I completely agree. I can't believe the sheer audacity of this jerk! The last thing America needs is its citizens attempting to enforce national laws!
wait...
REM Old programmers don't die. They just GOSUB without RETURN.
What I'd like to know is this: Can I sue collection agencies who call my house looking for the wrong person? They either leave me a message or, worse, ask me to hold to speak to a representative, but when I try holding and telling them I'm not their man, typically after about 10 minutes of holding the call drops. Then the next day I get another message from the same people. Very frustrating!
A couple of times I have actually managed to get to a person and tried to explain that I'm not the one. They're very unwilling to listen to this: "What is your social security number?" "I don't give out my social security number to strangers. Who is this and what is it in reference to?" "We can't give out that information?" "This is a collection agency, right? I have no debts in default, so I'm sure I'm not the person you want." "If you give us your social security number, we can check to see if it matches the one we're looking for." "Sorry, I won't unless you tell me exactly who you are. Or you could give ME the social YOU are looking for and I'll tell you if it matches mine." (repeat a few more times) "Look, what type of account is it that's in default?" "Ummm.... it's a Citibank Visa." "Well, there you go. I've never even owned a Citibank Visa. Bye." (click).
As fun as this sort of conversation can be, it's not worth the messages and the holds/dropped calls.
...following the principles of Heisenburger's Uncertain Cat...
Props to you, you say well what I think.
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Don't bother modding me down, mod parent up.
"If you have nothing to hide, you have nothing to fear." - Every fascist, ever
Wow! Typically an American standpoint. It costs more than 500$ to sue someone in Canada, and frankly, there are way bigger fish to fry than some auto-dialer company. Frankly, I'm not sure why this was even Slashdotted. :( What content is there in this that is even remotely interesting?
What a friggin' lawsuit happy country you guys live in ...
...I can claim to be calling from Nigeria if you wish!
All the local ya-hoos (this is a reference to Guliver's Travels, not a website, for those of you who do not read) have started having live people call me, daily. these live people screech through their memorized speeches quickly. They then hang up. I feel like that I have a drive-by phone call. The real problem with these calls. Is I am to darn polite to tell them off. As soon as I wait for them to breathe they hang up.
-- A computer without Windoze is like a choclate cake without mustard
There's the rub!
I once made phone calls for a city council candidate for extra credit work. While there is certainly the possibility of less than scrupulous groups being different, in this and other experiences, every person on that list opted-in in some way. Somewhere in your life, you signed up with a non-profit group that was affiliated with a certain party and shared their phone list, or you entered a drawing, or you submitted an opinion on some current news event. It may be sneaky, but I can't see how it's not currently legal.
Your best course of action with phone is this: if you receive a single message, delete it. If you receive enough messages that it bothers you, return a call, tell them to remove your data from their system, including all of their call lists. If you have caller ID, screen your calls. If you answer the phone and it's a call you do not want to receive again, tell them that.
Phone calls cost more than spam. If you tell them that you will never offer them any gain from calling you, 99% of the time they won't call you. It's after you've done this and still are getting harrassed that you can try to get your $500 cash.
The fact that the article mentions several times that judges are often unsympathetic to awarding money based on a single phone call should make you stop and think.
The fact that the article's author prefers $500 lawsuits over organizations following the existing law should also be a red flag.
Taking legal action should be to appropriately fix something that went wrong, not a means of profit. If consumers abuse the system for $500 profit after receiving a single phonecall, why should companies not find similar ways to profit from legal action against consumers?
But you're wrong.
(a)(2) "Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c) of this section."
"The term telephone call in Sec. 64.1200(a)(2) of this section shall not include a call or message by, or on behalf of, a caller: [...]
* (4) Which is a tax-exempt nonprofit organization."
Did you just glance over the word not and pretend it wasn't there? Or did you just not read close enough?
By FCC regulation, calls from non-profits, as well as political advertisements, are exempt from laws governing unsolicited communications. I spent the better part of 2 years working with autodialers, configuring them for sending out pre-recorded messages to the homes of those who were eating a nice, quiet dinner. During my brief time doing that sort of work at that organization (I have since found employment elsewhere that doesn't make me feel like Satan at the end of the day), I became well versed in the nuances of the law regarding solicited and unsolicited telephone calls. I can assure you, if you get phone calls from George Bush advertising your local Republican candidate as the best person for the job, the ONLY recourse you have is to hang up the phone and pray for November to be over.
It seems to me this person has more time than most. Wanting to sue someone for being annoying is just sad. It's an ad, hang up the phone! What did that take, 5 seconds, now move on with your life. I could understand if your phone was ringing off the hook and you were forced to unplug it due to the volume of calls. But this doesn't seem like the problem the person is having. How about using caller ID? If you don't know the number, don't answer the phone. If it's extremely important, the person would/should leave a message and if you recognize the voice, pick it up. If you're thinking that you shouldn't HAVE to do that, no, you shouldn't, but life has it's annoyances and ads on the phone are just one tiny fraction of what you're going to run up against. Are you going to track down and sue that kid that crank called you at 2am? This person probably would.
I got a recorded call from GWB the other day telling me how I should vote Republican this election season to protect our homeland from "terrists". I had a good hearty laugh through most of the call before I hung up on it.
"In case of emergency, break glass. Scream. Bleed to death."
Just what we need. More idiots suing people for... not much.
If you don't want to listen to these, hang up on them. If you don't feel like picking up, don't. The world won't end because you didn't answer the phone. Yes, I get these sometimes, and used to get them constantly. I just started hanging up on the machines, and telling the people "Please put me on your do not call list. If you wish to contact me in the future, please send me something by mail." None of them ever send me anything in the mail, and they stop calling me.
Sure, these calls are anoying, but they're hardly worth a lawsuit.
What's needed is some sort of captcha for telephone calls.
Answering machine: To connect to Mr Jones, please press keys one, six, three and nine now.
Auto-dialer: [Launches into pre-recorded message]
[Ten seconds later, answering machine hangs up]
Rich.
libguestfs - tools for accessing and modifying virtual machine disk images
We've been on the Do Not Call list for about 3 years (or however long its been in service). We receive 5-8 calls a week from telemarketers on our home telephone as well as our mobile numbers (all numbers areon the Do Not Call list).
I've called every single candidate and their respective parties and asked that I be removed from their automated call list.
The NRCC is the worst offender here, and the only one who has consistently ignored my requests that they stop calling us..
So now, I've decided to file police reports against the calls, after using *57 to track and trace them. Since they block their numbers, they are violating the law, and law enforcement will take care of it.
Also, I've openly let them know that for every call I receive after I've asked them not to call, I will convince another person NOT to vote for their candidate (so far, that's about 12 calls or 12 people who will not vote for their candidates in the last two weeks).
If they can't listen to their constituents, why should I vote for them?
And so I won't.
Lately, I've been coming home to find my answering machine's memory completely filled with pre-recorded campaign messages. Yes, it's annoying.
That notwithstanding, a $500 small claims award (assuming that's how much I'd have for my trouble) is a little more than what I earn in a day, and I'd rather spend my day at work than go through all that described in the article.
So no, I don't have what it takes. I don't have the time.
Those who can, do. Those who can't, write technology blogs.
I don't think the best attitude in life to take is to sue anything and anyone that pisses you off.
You got a phone call, it took, what, 10 seconds of your life? Deal with it.
... 'course, 20-30% of the vote doesn't count. If only we had a Democracy. Unfortunately, a Republic isn't the same thing.
... why don't we want to make the rest of the world Republics?
...
On a side note (please don't flame, only an observation), I find it interesting that we are trying to spread a form of govt. we don't use
-
I used to have a witty sig
"If you have nothing to hide, you have nothing to fear." - Every fascist, ever
Going through a small claims process to collect $500 is a hit or miss proposition for a pro se litigant. If you go to a lawyer, I am sure that he will find a way to recover triple that amount through a settlement. The lawyer can organize a number of plaintiffs and perhaps even a class action. The lawyer will front all of the fees, usually.
Just like how you shouldn't self-medicate yourself, you shouldn't represent yourself in court. Your just asking for trouble, and stress, and a huge headache.
I get this same damn company calling me all the time. It's a pre-recorded message saying something about a "business opportunity" and they leave their phone number. They don't identify themselves or give any information at all other than to call them. These assholes call 2 or 3 times a day and since there is not a person on the line I can't tell them to stop calling.
After some tracking of their phone number I found out they are a collection agency. Since I have never once in my life had any outstanding debt I doubt they are calling me on purpose. Probably some deadbeat gave a "fake" phone number that happens to be the same as me, or maybe the last owner of the number.
Can I sue these guys and make some cash? They have been calling for years and I have reported them to the do-not-call list many times to no effect.
I can attest to the outright activism in at least my local (Dayton, OH) area judges.
It is Ohio law that any security deposit should be returned to a tenant 30 days after the tenant moves out, assuming the tenant left a forwarding address for the deposit. If the landlord fails to do this, the tenant can get double the money they were supposed to recieve. Two lawyers both said that while my landlord was in violation of the statute (it took her 37 days to return my deposit), I'd be hard pressed to find any judge that would find in my favor. The law is in plain black and white, but apparently no judge in the area will "enforce" it.
Activist judges, indeed.
I have a serious question. What if the beginning of the call is cut off on my voice mail? 99.999% of the time, they will start leaving the message while my outgoing greeting is still playing. Any idea on if this would invalidate my claim against them (or make it better)?
IANAL, but I still think that I'm qualified to point out that filing a lawsuit based on an essay posted to Slashdot is a really stupid thing to do.
Where does this attitude come from? Slashdot has a definite DIY community to it. Maybe your first lawsuit isn't going to suceed or make much money. But then again your first attempt at making pottery, or programming probbably won't be very good either. Of course you aren't qualified to file a lawsuit based on one essay. But that doesn't mean there's not something to be gained from starting the process.
Really, what are the risks involved here? You lose? All you've lost is some time. If you aren't prepared to lose that, then don't do it. The gains are feeling that you've accomplished some minor dig against a scumbag telemarketer, and maybe a little money.
It's not like you're building a bridge which could collapse and kill people, putting together a rocket that could explode, or duplicating the efforts of the MythBusters. Why not Try This At Home?
AccountKiller
The judge allowed the taped call to be played? That makes me doubt that this is a true story. Unless you informed the guy he was being taped that is inadmissible evidence. And if you did inform him that he was being taped and he told his story anyway, that is an unbelieveble idiot.
I suspect the political callers are getting numbers from voter registration databases. In my case, I have only a cell phone, so I don't think these groups would have any other way of getting the number. Thus there are probably easier solutions (easier than taking every automated caller to court, anyway): I could choose not to give my # when registering to vote, although this means opting out of some nice services such as phone reminders of when/where my polling place is. Another nice option would be to have a 'do not share number' option on the registration form, so that only the county elections office can use it (showing american bias).
Research your candidates before election season and know who you want to vote for, then fill out an absentee ballot the day you get it. Those automated systems won't call you if you've already voted.
captcha: rioting
Bennett is in Washington, and does not point out that those are Washington rules. Each state has their own rules, but most are similar.
Some differences in California are:
1. You can use regular certified mail in small claims, only if the court does it. They charge $8.00 to do it.
2. You can serve a rented mailbox, or what it is technically called is a commercial mail receiving agency (CMRA).
Under California Business and Professions Code 17538.5, when a person takes out a box in a CMRA, you appoint the CMRA as an agent for service of process.
Also, he does not mention that with a P.O. Box, there is a form that can be used to request the box owners name and address for
service of process.
Fight Spammers!
This is a very very broad HOWTO, and does not take into account the special requirements in some courts that can get you into very real trouble.
IANAL, but I have sued in small claims court, and lived to tell about it. I found out the day I arrived in court that I was totally unprepared because I did not understand the process, and I was lucky that the defendant didn't understand how unprepared I was, so I managed to get a 50% settlement.
Some courts (for instance, Cook County court in Illinois) give defendants the absolute right to a jury trial and an attorney. So this means, even though you file pro-se, the defendant is well within his or her rights to hire a lawyer. A smart lawyer. For those keeping track, you are representing yourself, thus you are a dumb lawyer. Just guess how that turns out.
The jury trial part is especially tricky, and what almost killed my case. In a normal small claims bench trial, a judge listens to your argument and makes a decision. In in jury trial, you must present evidence is certain acceptable ways, and if you do not, your testimony will be surpressed. If you try to "get some testimony past" the rules of evidence, you might go to jail for contempt. And if you arrive in court without Jury Instructions (a legal document that you must write prior to your court date) it is entirely likely that your case will be dismissed before you even raise your right hand, and a judgement entered against you for wasting the court's (and defendants) time.
Don't know how to write jury instructions? Neither do 90% of the attorneys out there. Only litigators know this valuable information. Good luck getting free advice from them. Hint: They don't post these instructions on websites.
-- "In order to have power, I must be taken seriously." -Mojo Jojo
At least telemarketers have to listen to the Do Not call list...
The other day I recieved several calls (some at night!) from (area code) 000-0000. Of course, not a valid number. I pick up the 12th time it rings. It's a prerecorded message from an assembly candidate that I have recieved 5 other prerecorded messages from.
I don't find out who it is until 15 seconds in and no callback number. At least the telemarketers would have to take you off their list! I can't figure out a way to stop the calls...
The neat thing about doing small claims cases like this is that it's only time consuming the first time. Once you've found all the resources you need and have all the materials ready, the second case is basically macro instantiation.
Process servers are useful. The first time I used one, it was a company named "Attila the Hun School of Charm". Really. I went down to their place in person, and as I was filling out the paperwork, one of the process servers comes in. He looks like a football linebacker and is driving a Jeep with big tires. A few days later, I get the return from the process server, describing the delivery of the summons: "Person appearing to be in charge threw papers out front door". When I got to court with that, it was an instant win - default judgement in my favor.
Collection approaches vary by state. I'm in California. I had a court judgement against a retail store, and after some non-fruitful phone calls and letters, I paid for a "till tap" and an "8 hour keeper", services of the County Sheriff. This works against any business with a cash register. A uniformed, armed sheriff or two show up at the business, present a copy of the court judgement to the store manager, and take the money out of the cash register. That's the "till tap". Refusing to pay is not an option. If there's not enough money in the cash register, they stick around for up to eight hours, standing next to the cashier and taking the money as it comes in. Persons who pay by check are told to make their check out to "County of ...". They handle credit cards, too. That's the "8 hour keeper". It seldom gets that far; businesses will frantically come up with some cash to get rid of the sheriff.
Eventually, you get a check from the sheriff's office. The fee for the "8 hour keeper" is added to the judgement. So you get that payment back.
The author is very clear: only sue if they broke the law. The law is clear, and the punishment for breaking the law is that people get to personally fine you for $500. Given the unlikelyhood of an organization giving you $500 just because you send them a letter complaining, we need a government system to enforce the law, to give you and the organization a chance to speak your case and sort things out. That system is the court system.
If you don't want to be sued for $500, follow the letter of the law. It's not hard: clearly state the name of your organization and a phone number for your organization that can reach a human being. If you don't sue, these people get to continue breaking this law without punishment. Sure, it's a very minor offense, but it's annoying to a large number of people. If people weren't enforcing these laws the telemarketing (and junk fax, which has similar laws) problem would be far, far worse than it is.
This sort of lawsuit is not what is bogging down our court systems. This sort of small case is exactly why small claims courts exist. Generally speaking they're very efficient because they do away with much of the overhead of a full trial. On the down side you get less consistent and occasionally wrong decisions, but I'm prepared to take a little risk for small claims.
Good comes from this sort of law: it dramatically cut down on junk faxes. Maybe it's protecting us from sewage dumped in our water sources, but the cost to society as a whole is trivial and there is a real benefit.
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I live in California and I just started getting some annoying automated messages. Are they recordings? No. They are fax attempts from the American Cancer Society (atleast what Caller ID says). They are trying to fax me shit about the upcoming election, and I have a feeling this has to do with the ballot measure about taxing the tabbaco industry. I believe mass faxing is also very illegal since those who receive the faxes are bearing the cost of printing it out on paper, etc, etc. I have been receiving these faxes atleast once every day for the past week, and if I'm not home of course they record the bothersome high pitch noise onto my answering machine for a minute or so. Such annoying shit, I am ready about to call the American Cancer Society and raise hell with them.
The landowners are more likely to vote for those judges, and if you are moving out of the area, you are not going to be voting for them.
If you are going to try to sue someone, I wouldn't rely on legal advice from someone who is apparently a non-lawyer and puts out a guide to suing on a federal law claim in small claims court that tries to make it seem open-and-shut simple. First, if you are going to sue in small claims court, and don't want to pay an attorney, you need to research the law governing the and procedures applicable to small claims court in your state: either going directly to the law, or (more friendly), one of the guides from reputable self-help legal publishers.
Second, I'd look into a better reference on the applicable law (again, you can go directly to the law, but if you are going to take someone else's word on interpretation without hiring a lawyer, again, go to a reputable source.) Its worth noting that if you check the official site, the regulations cited (47 CFR 64.1200) do not match the material quoted.
Its also important to note that the requirement for a the required identification and phone number is "during or after the message": if you want to do this, you've got to first listen to the whole message, and if they complied with the rules, there is nothing you can do to get back the time you wasted listening to the message.
Also, quite a few election-year messages are delivered by entities that exist and are created for the election, which may not have any remaining resources after the election, and may even be disbanded shortly afterward. While if you have a major claim against such an entity it might be worthwhile to do the work needed to try to attack the sponsors behind it, trying to do that to enforce a liability that (even with the triple award for "willful and knowing" violations) is only at most $1,500 (if you can't prove actual damages of over $500) is, well, likely to be a headache.
Its probably easier to report violations to your state authorities: state attorneys-general also have the right to bring actions, and if more people report violations, there is more they can do. And state attorneys-general have a lot more resources to conduct investigations, can claim the statutory damages for all violations by the targets of their suits, not just the one that was made to you—and because they can aggregate the claims, it makes the cost of litigation a lot more bearable for them. Get your tax moneys worth out of your state government, let them do the heavy lifting.
That being said, this message should serve as a good reminder that you do have the power for do-it-yourself enforcement here, though I wouldn't rely on this as a guide to how.
Not only did he read the whole thing (well, I'm not actually sure of that - all I'm sure of is that he read more than you), but he already replied to your concern in the article. What you are talking about is whether or not they are allowed to call you. Indeed, it seems that according to the law, they are allowed to call you. You're not suing them for that.
When they call you (since they're allowed to), if they use an arificial or pre-recorded message, it has to include who is calling, and what their phone number is. You are suing them for not doing that (if indeed they haven't...)
This is section (d), which applies in any case, especially in those cases where the organization is allowed to call you.
(d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:
(1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
(2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual.
You must not actually have read the article (well, this is slashdot), or maybe not understood it. It could also be that you're biased, since you're "from their camp..."
But, above, he alreeady answered you concern. As I answered to someone else,
What you are talking about is whether or not they are allowed to call you. Indeed, it seems that according to the law, they are allowed to call you. You are not suing them for that.
When they call you (since they're allowed to), if they use an arificial or pre-recorded message, it has to include who is calling, and what their phone number is. You are suing them for not doing that (if indeed they haven't...)
This is section (d), which applies in any case, especially in those cases where the organization is allowed to call you.
(d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:
(1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
(2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual.
on this 19" CRT running FireFox at 1600x1200, this article showed up in the bookmark bar and I thought the title was "How To Sue The Auto DEALERS."
I hate auto dealers much more than I hate auto dialers.
This only works for the ones that are fairly close to following the law. Not sure how i feel about going after the borderline cases.
:(
:/ Trying to get help from phone comapny was more frustrating than the scammer calling so..........
The most obnoxious ones are untouchable. If they don't give you the name of the organization like they are supposed to you have no way to find it or even the phone number
I tried to track down one that was using an autodialer and message to pitch a obvious credit card scam. I pressed 9 to get a person, between message and person i still had no idea who it was. No one cares that these guys are breaking the law (several of them in WA which is pretty strict). Telephone co won't help and cops don't care unless there is 10k or a body on the line
Nice in theory but there is no way to stop the ones that really need to be stopped.
ELOI, ELOI, LAMA SABACHTHANI!?
This guy makes it sound like the process of serving papers is straightforward. It is not necessarily so. For example California has like 52 different counties and each one does things differently. In some counties, you are require to serve papers in person yourself. In some counties, you are not permitted to serve papers yourself, and must have them served by someone else. In some counties, this must be the sheriff and there is a flat fee for serving papers. In some counties, this must be a registered process agent (usually a bail bondsman) and there is a flat fee. In some counties, anyone can serve but you (the person filing) and there is no flat fee. You need to be aware of this particular little fact because if you do not properly serve the papers, your whole case can be invalidated and you will be sad.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
From the article:
"If I'm doing legwork to find out who made the call, sometimes I say that I'm interested in running my own campaign using a machine to dial numbers and play a message, and I want to find out how they did it. It's not illegal to lie."
It may not be illegal, but it sure won't win your case. "Umm yer honor, I'd like to submit this evidence, that I, well, lied to obtain."
"If your parents never had children, chances are you wonât either." -Dick Cavett
Ask to record the conversation, inform them that they're not allowed to call that number anymore, and you're not their person in any case. They call again, file a police report, it's harrassment and it's illegal.
Since tape recording a conversation without asking for consent IS entrapment and illegal...why would anybody take this guy's advice seriously? He is clearly ignorant of the law.
The caller doesn't identify themself and doesn't provide their callback telephone number. Thus they've broken the law. So who do I sue??
As a matter of fact, I did work for one of these companies. Just for the record, we actually employed real callers, went out of our way to follow all the laws (including do not call), etc etc etc.
Where the numbers come from generally changes with the product a given company is selling. We did fund raising for charities, so we generally dug up lists of people who had previously given to other (usually related) charities. We did occationally use the white pages to "cold call" people, but that was usually only on slow days and being how unprofitable it was to randomly call people without any assurance that they'd buy we didn't do it very often. Spammers have the advantage of being able to send millions of emails with minimal costs. Bandwidth is cheap. Long distance phone service is not. This is one of the reasons that telemarketing companies are so big on VoIP stuff and why the phone companies aren't.
I'm all cell phone as well and I have gotten three of these calls in the last couple days. I don't understand why because I've been registered with donotcall.gov since 2005 and I never give out my personal cell phone number. The calls just show up as Unavailable so I answer them and burn airtime. I would be angry if I was over my minutes; thankfully, the Verizon minutes used Firefox plugin helps me avoid that. Anyone else getting these calls on cell phone or know of ways to stop them?
then what... the article above presupposes that your process was successfully served...
Donald 'Duck' Dunn: We had a band powerful enough to turn goat piss into gasoline.
I understand your disclaimer at the beginning of the essay--Do you HAVE what it TAKES, but it seems that "what it takes" is a serious axe to grind and nothing better to do.
You're not doing it for the money, are you? Please explain if I've missed that benefit here.
Net dollars in your pocket divided by total hours spent?
Is this lucrative?
Do your efforts actually discourage the calls? Again, if you have some facts, please share them.
Let's say that everyone who gets a noncompliant message gets a $500.00 judgement and shuts the business down.
All you've done is guarantee that their successor complies with 64.1200(d) and (e)(1).
Maybe you should consider joining the volunteer police force in a nearby small town?
You'll make a real contribution to the community and the stress (if that's your thing--which it seems to be) will be present, albeit in a different form.
"Reality is that which, when you stop believing in it, it doesn't go away." - Philip K. Dick
Please people. Stop suing for stupid little crap like this. The legal reason for suing is to protect consumers from being taken advantage of by others. People are suing far too often these days, and it's really inhibiting the efficiency of the courts, increasing insurance rates for all practices, and needlessly restraining the economy. If you really, REALLY want to make a difference, use your vote and your voice to rally others to not vote for that person. To sue them is to give them press, and as they say, there is no such thing as bad press. If you want to make a difference, don't waste your time and money suing. Learn to use your voice and vote to change the world.
If you have gotten a call from the National Republican Congressional Committee (NRCC), National Rifle Association (NRA), or any of a plethora of disingenuous, zealous, dime-wringing bible thumping organizations... than point your finger at this company. http://www.infocision.com/ They have tons of dialers.
I must have been a bit upset. Don't know why. Well, actually, it was 'cause I got lost on the way home. Anyway, saying that the grandparent was biased because he (or she) was "on their side", was low. You did the right thing! You left! Sorry.
But you still didn't understand the article...
A perfect response to !!!
I'm thinking about it, therefore I might be.
Ummm.. notice the difference between a solicitation and a call. Different terms, this does not apply to what is above. Sorry.
I'm a concientious
A perfect response to How to Handle Political Telemarketing?!!!
I'm thinking about it, therefore I might be.
If they don't say who they are and don't give a return number, how do you identify them? I get calls like this all the time -- they block *69.
-Carl
"That was a lot of research and writing for a stupid knee jerk reaction to a rather simple and short-lived annoyance."
Lice is only annoying when it itches. People still found ways to get relief from it
science is a religion
How long od you have to collect? I got a judgement against a former roommate years ago and was never able to collect (real jerk he was) do I still have the ability to file this with a collection agency? I still have all of the paperwork...
I've been getting a lot of calls that seem to be the "wrong number". When I tell the caller that they've reached the wrong person, they say. Sorry for the mistake, sir. Perhaps you would be interested in ....
It's been happening more and more lately. I would imagine with auto-dialers it wouldn't be the case. Looks like they are using cold calling "dialing mistakes" intentionally. They could all be errors, but it does seem quite suspicious.
Last friday I got 20+ calls in 2 hours -- that is one about every five minutes; I have caller id so I know when to pick up and when to ignore. Most were from the same number, a political survey, etc. I ended up having to disconnect the phone. That's harrasment.
So, you're complaining that suing about phone calls (which waste your time) is ... a waste of time. Is wasting time "bad", or not? More to the point, why is it bad in one case and not the other? Personally, I wouldn't be willing to waste my time suing over phone calls that waste my time, but if someone else chooses to (and in the process hopefully saves me time), more power to them. Of course, whether or not it's a waste of time is a matter of opinion, but I think the person whose time it is should be allowed to make that call (in general).
If your only complaint is that it's not worth your time, that's fine. However, it seemed that you thought it wasn't worth anyone's time, and that's a decision that can only be made by the individual.
Ben Hocking
Need a professional organizer?
Just prepend the 3 tone SIT to the beginning of your answering machine greeting, and let it answer. They won't leave a message, and they won't autodial again.
If I'm reading that legislation right then making a phone call with a pre-recorded voice (like Stephen Hawking's artificial voicebox) isn't allowed...
although, to be fair, if he called me I'd assume it was someone pranking me and I'd ask how his rap career is going.
I quit!
State Phone laws regarding taping a conversation:
http://del.icio.us/ClintJCL/phones%2Btaping
-Clio
Karma: Bad (mostly from not giving a fuck)
Blog: http://clintjcl.wordpress.com
Unpublished numbers add teeth to keeping you off telemarketer lists, even those that are exempt from the DNC registry. I make a point of informing the caller that they have reached an unpublished number and I wanted it taken off their list. Even AOL promptly took me off their autodialer list when I was given a number that belonged to someone else.
They don't cost much more per month and they're a lot less hassle and money then filing a lawsuit.
Eternity: will that be smoking, or non-smoking? I Corinthians 6:9-10
I work from home and get on average 5-6 telesales calls per day. About 1 in every 10 is a recorded message. Another thing they like to do is call you and hang up when you answer. If you have CLI (caller line identification) or you dial 1471 (In the UK) you will see that you have been called by an 0800 freephone number and if you call the freephone number back you can listen to them try to sell you stuff.
Anyone know what the law is in the UK regarding recorded message telesales calls? They are a right pain and although I probably wouldn't follow up with anything it would be nice to phone them back and give them some abuse, threaten to sue etc.
Telesales people don't do to well at my house, 99 time out of 100 the calls go like this:
Me: Hello...
Me: Hello, is there anyone there?
Salesman (gets connected by auto dialing): Hello, could I speak to Mr Jones please?
Me: There are two Mr Jones who live here, which one do you want to speak to?
Salesman: Mr A. Jones?
Me: Yes, which one?
Salesman: Uhm, the home owner?
Me: Seeing as you don't know the home owners first name you must be selling something so no, you can't speak to him...
I went to WA small claims court to ask for payment from a property agency that had promised repayment. The apartment I was moving into needed repainting, and I painted it on my dime after an agreement with the agency that they would repay me. The property agency not only never paid me back, but claimed that I had never even painted it at all and billed me for additional repainting after I moved out! All told, it was about $3000.00 dollars (my expense, plus the extra that I got billed).
:-)
In court, the agency rep claimed there was never any correspondence, and she said that she would be fired by the agency and made to pay it out of her own paycheck if the judgement was lost. A very silly play for sympathy.
I won the full judgement since I had a certified receipt for the summons, still had the Home Depot receipts for materials, as well as an email from a guy at the agency saying they'd pay me back. The judge very severely berated the agency rep for lying, recorded it in the court transcript, and awarded us not only the money that I had spent for painting, but an additional award for the amount that I had been billed by the agency, and bid us a nice day. I came out of there with a tidy $2000 profit.
I sat through three other cases before mine, all landlord/tenant disputes, and the tenants won every judgement. Judges hate slumlords
Anyway, I highly recommend the small claims experience. In Washington small claims, your defendant can't counter-sue (they have to file a separate claim), so you have nothing to lose except a few bucks for the claim and summons fees and a day from work.
----- And all that the Lorax left here in this mess was a small pile of rocks, with one word...UNLESS.
One catch is that the laws are US laws, so they don't really apply to telemarketers in India, unless they're sufficiently connected to their real customers in the US.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
Nice article. Thanks.
Unfortunately I've been getting unsolicited phone calls via machine on my cell phone recently and they're all in Spanish, which I neither speak nor understand. Other than improving my skill of shouting vile curses and heinous threats into the phone, is there anything I can do?
--Udo.
However, before you can hang up, you first have to halt whatever you're doing (perhaps destroying a productive train of thought), go over to your phone, and answer it.
That said, I agree with you that I personally wouldn't sue anyone over this. However, kudos to those who do because it might mean that I have to endure this hassle less often. And, yes, I'm on the "do not call" list.
Ben Hocking
Need a professional organizer?
I have read similar articles on the web. In most articles, the author does not disclose what kind of success he had with his methods. So I have a problem with this Slashdot post. How many times did the author sue a caller? How much money did the court award? How much of that amount did he recover? Did he suffer any negative consequences, such as a counter suit? Without this information, it is not possible to assign a value to the methods that this article recommends.
There was an article here recently explaining that if you got on the Do Not Call list when it first came out your listing has now expired. Rather than checking it out I just signed up again. This won't help if your NRCC is the National Republican Congressional Committee but might if it's the National Resource Center for Cephalopods (I'm unsure if they qualify for the non-profit exemption).
a,e,i,o,u and sometimes w and y (at be if of up cwm by)
In California the state Highway Patrol will serve the papers for a small fee. As I recall, thirty years ago it was $15 to have the CHP serve the papers when I sued a dishonest landlord whose security deposit refund check bounced. Having a cop serve the court papers gave me a lot of satisfaction in itself, apart from the fact that I won the case and recovered my security deposit. Small claims court is surprisingly easy to file a claim in, and in my experience the judge is actually interested in fairness but you do need evidence of wrongdoing (in my case, the landlord's bounced check was sufficient).
9/11 Eyewitnesses to Explosive WTC Demolition 1 of 2
This is basically how it works in Canada--though the US may be different...
Election rules permit political candidates to make phonecalls without restriction DURING A CAMPAIGN (from the day the writ is dropped until election day). These calls MUST be from the candidate directly or on behalf of the candidate by a campaign worker. These calls CANNOT come from a third party--they'd have to respect do-not-call lists and beyond that they are effectively banned from doing so because of "election gag laws" prohibiting any sort of campaign spending by third parties. For example, not only can a lobby group, say for illustrative purposes "Gigantic SUV Owners of Canada" not make phonecalls urging people not to vote for the Green party, they are prohibited from campaigning for or against any party or candidate, in any way (from radio and tv to the internet to billboards etc.) during an election.
Such a "gag law" would be clearly against the US constitution, and it has been contested several times in Canada but the restriction in free speech has been ruled as justifiable by judges in the interest of leveling the electoral playing field. So, if you were in Canada and got a call from ANYONE who does not directly represent a candidate they aren't just being annoying or breaking CRTC rules (CRTC is the Canadian version of FCC), they are also breaking election rules.
The same applies to junk mail. In Canada, postal workers are obligated to deliver everything with an address on it that is not a restricted material (so infectious/biohazardous materials, flammable substances, perishable goods, etc. aren't deliverable, but any addressed letters and such must be delivered). Junk mail without addresses are called "unadressed admail" and you can request that it not be delivered. There is one exception and that is political campaign literature. As with "junk voicemail" you cannot block delivery of political campaign pamphlets even if they are not addressed, and third parties are prohibited from mailing out campaign literature entirely.
I know the US doesn't have "gag laws" but it is probably the case that third parties/lobbyists like "the friends of proposition X" must respect the same do-not-call list that businesses and charities must. As in Canada, I'm betting there is some provision protecting the right of candidates to use dialers as a campaign tool. Of course, if you phone hundreds of people reminding them to "vote for Mr. Smith" during dinner hour you risk turning those portential voters against you for being annoying.
...fraudulent Auto Dialers, how long til we can sue the fraudulent Car Dealers as well?
my
I'm sorry - "When the judge stopped berating me long enough for me to continue ..."
I've read the court transcript, and all I saw was a smart-mouth trying to tell a judge how the law works! She kept telling you that yes, she DID know the law, and was trying to get you to stick to the proper procedure, so you didn't waste the court's time with irrelevant issues.
And you want to teach others? Ha! That's rich!
Based on the numbers in the article, I really don't see the economics working out on this one unless you (a) sue 10 or more companies at a time and (b) win at least 50% of the cases and (c) actually collect from at least 50% of your victories. If you only file 1-2 at a time, expect to lose $20-30 on average (assumes your time is only worth minimum wage).
Despite what the article says you have no legal recourse for getting a political call. None, zero, zip... You cannot stop it. It is called the First Amendment... Political speech is protected and politicans exempt themselves, including their campaign committees, which are not non-profits in the normal sense, from nearly all laws. I have worked in the both private sector and political call centers and I have legal memos relating and several elections as proof. You cannot even sue a candidate directly for money owed by his campaign committee, except in narrow circumstances.
And to all of the winers, I say this, suck it up... It is the price of having a free society and a republic. You have to deal with a few unpleasant (and ineffective usually) calls during an election.
I thought it said auto dealers. Here I got all excited only to find out that it doesn't even apply to me, because I only have a cell phone...
If I don't put anything here, will anyone recognize me anymore?
I get quite a few calls from collection agencies trying to collect on the (evidently) deadbeats who had my phone number before I did.
Most of the time these calls are: "We have a very important message for you. Please call us back at 800whatever". These are clearly illegal per the original post.
Now, if I sue these guys and win, how hard do you think it is to get a collection agency to pay?
I keep seeing these comments (particularly by Canadians?) about the lawsuit-happy Americans.
We live under the rule of law for a reason, both in the states and abroad. Laws are there (ostensibly) for the protection of the people; by enforcing them, even the minor ones, a message is sent that it's not OK to break the law - thus strengthening the rule of law and providing justification for itself, an extremely important step. Words on paper are ultimately just that - words on paper. When the law stops justifying itself, people start ignoring it, and open warfare(figuratively speaking, at least at first) begins. Consumer protection, workplace safeties and protection, and even criminal law start to go out the door. We place our moral and ethical faith in the laws written for us by other people; when it breaks down, we are left with nothing to hold on to.
I wonder if this is why theologically-based societies get a good head start - when your rules are (claimed to be and taken as) dictated by a "higher authority", they may be viewed as more infallible than laws made by, say, Ted Stevens (R) Alaska, or George Douchebag Bush. Of course, a government builds up around it, which involves the mind of man fiddling with the hand of god, and people eventually lose faith... First in the rule of god, then later in the rule of law. Lather, rinse and repeat for a quick summary of human history.
As an aside, debating whether or not we have too many laws is another discussion entirely, but completely worth thinking about. Not to mention the question of how the rulemakers, in a quest for greater control, eventually (and inevitably) cross the line of "lawmaking in good faith" and the corruption that causes loss of faith in the rule of law and the eventual decline of society.
A few years ago I suddenly started receiving phone calls at home at about 4:30 in the morning, about once every seven days or so. However, the "phone call" was really a fax machine trying to send me a fax. So after picking up the phone at about 4:30 or so and hanging up, about 10 minutes later I'd get the redial.
:(
Caller ID was blocked, so I had no easy way of knowing who was doing this. And, I wasn't sure if it was a temporary error and would just stop soon.
This went on for a month or two, until finally I setup my computer to receive the fax. Obviously, doing so would also interfere with my incoming voice calls, since I had to leave it on, not knowing when the next fax would come in. When it did, I saw that it was a company sending out wholesale investment research to subscribers. Once I had their name, I looked them on the web to find their corporate office. I called them, asked for the name of their General Counsel and was transferred to his voicemail. I left a (nice) message that basically said, "In order to avoid a lawsuit, please give ma call."
I got a callback pretty soon, explained the situation, gave some identifying info from the fax. They called me again about an hour later, saying that they determined what the problem was and fixed it.
Now, I had the peace of my home seriously disturbed by this experience. So, I faxed (!) the General Counsel a letter explaining just that, citing the relevant federal law regarding unsolicited faxes, and demanding compensation. We ultimately did settle upon a sum - no lawsuit required, though the settlement was at the point where I made it pretty clear that any lower and I would actually sue.
There is an exception in the law for "mistake," but they didn't try to rely upon that.
And, of course, I had to pay taxes on the settlement.
I tried the same thing with my cell phone company some time later, but they took advantage of the exception for an existing business relationship.
How much would you settle for?
--LWM
That doesn't work.
That said, I've sued people and been sued, in the NSW Residential Tribunal, which is like a local court except all the rules and procedures are dumbed down, and the Magistrate has much less power. I have to say it was an awesomely fun experience, but it does take a lot of time. The time spent in court is the least of it - I can understand the people in long court cases where the court case basically becomes their whole life. So, a caveat: don't let it rule you.
My advice is:
When I won, the other party didn't pay up. So I learned all about how to have a court's judgement enforced. I got the bulk of the money owed, and eventually settled on the remainder.
What's that thing flying over your head?
Or does this guy really suck in court? I mean, I can understand reading through one of the cases why he lost.
are some of the most annoying offenders in this vein in the UK.
... difficult to say how much my silence and self-respect would be worth.
For the last couple of months, I've been working through sueing one of them for the harrassment they give to people. The case is still in progress, but if I don't get settlement cleared by the 14th of November, then it's off to the Scottish version of Small Claims Court (surprisingly enough, called "Small Claims Court") for step # 7 in the process of extracting a reasonably fee from them for every phone call they make to my house.
When will Weatherseal ever learn the main maxim of the retail trade : "there is no good advert better than a satisfied customer, and no bad advert worse than a dissatisfied customer"?
I just hope that they don't try to settle out-of-court with a nice sum and a Non-Disclosure-Agreement - that would put me in a difficult position. Now, a derisory sum and an NDA would provoke much hilarity and a trip to a scanner with the NDA, for posting on a blog page somewhere. But a good sum
I'm in the middle of an open-source project to implement Disposable Phone Numbers to complement my current long list of disposable email addresses. Just like the email addresses, all the phone numbers will point to the same destination, but I can turn them on and off as desired. There are also some commercial services that offer this capability.
I'm also implementing Stop Rude Calls to act as a captcha for incoming calls, but that's a longer-term project.
Imagine my surprise when I'm just halfway through the article and I get a call from Bill Clinton asking me to vote tomorrow for the dem running for senate.
Your sig(k) has been stolen. There is a puff of smoke!
Wouldn't normally post on slashdot, but I will say that I have successfully sued companies under the TCPA 3 times in California, and won all three times. All 3 cases were related to fax spam.
In each case, I won by preparing a case that was so strong, the judge had almost no choice but to side with me (and the law). I brought letters from the Attorney General Bill Lockyer supporting my case, and an article from a newspaper where he suggests that the people of California bring suits under the TCPA, saying that's why it exists. I brought over 2,000 references to prior cases, printed into a booklet. I provided full written details of all of my interaction with the defendent.
All in all, I provided over 500 pages of material to the court broken down into many seperate exhibits. I also prepared a written opening statement, very carefully worded, and explained to the judge how the spam industry operates, painting it in an accurate picture. The defendant's argument wasn't even relevant, as by the time I was done talking there was nothing they could do to help themselves. Pleading ignorance did not work. I won every time and spent no more than 10 minutes in court for each case.
I was awarded thousands of dollars in damages in each case, and ultimately, each business was forced to completely shut down their fax spam operation as a result of my legal action against them.
So yes, it's very possible to win, thousands and thousands of cases have been won across the nation. If you're not intimidated by the legal system and can handle the stress of representing yourself in a court case, the TCPA is a great way to flex your legal rights in court and to do some good for everyone.
I HIGHLY recommend reading every single word found at www.junkfax.org, which is the site I used as my primary reference during these cases. It helped tremendously and I would say that without that site, I would not have even gotten involved. After reading junkfax.org, I was motivated and confident that I could take these guys to court and win, and I did, and it was very satisfying.
Go get 'em.
I keep getting calls from some automated recording in spanish on my cell phone. Can I sue them?