So you're saying you may have routinely violated state laws in regards to recording? Multiple states have 'all-party' recording laws. All parties to a conversation must be aware of the recording.
The dead air calls are caused by automated dialers. A telemarketer will typically have more lines than sales people. Say you have 20 lines and 10 reps, the lines would all be dialed..some get busy signals, so are not in service, and some get answered. The first 10 people that pick up instantly get transferred to a rep. You information pops up on their screen before you finish saying 'hello?'. A delay before they pick up can be a result of their not getting the information fast enough or starting the speech too late, though typically only a 2-3 second lag. The dead air you get is a result of 10 other people getting to the phone before you. Once all the telemarketers are busy, then the system is supposed to hang up, but they typically means your phone rings once more, and even if you pick up, the system may already be hanging up. The problem, however, is that the identification requirements are not met. Persons or entities placing a call are supposed to identify themselves (by full name) and provide and address or phone number. Once the call is placed, the solicitation has begun, whether you ever hear a single word or not. Unfortunately, telemarketers hide their Caller ID info, though this should end in 2004 when FTC regulations come into effect.
I have had several suits and settlements regarding telemarketing myself and am about to file several more. Exercise your rights.
Unfortunately, like in this case, it is easier for the person to break the law and just pay off a few people clued in while raking in money from the ignorant.
"Plainly, it ought not to be cheaper to violate the Act and be sued than to comply with the statutory requirements." Bueno v. MATTNER, 633 F. Supp. 1446, 1467 (1986) quoting Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1332 (5th Cir. 1985)
No the best thing to do is to exercise your rights. Saying you are not interested and hanging up does nothing. They can continue to call after that. You need to SPECIFICALLY demand that your name be placed ON their Do Not Call list (i.e. not removed from some other generic list...this is important). Then demand a copy of their written policy regarding the maintenance of their Do Not Call list. They are required to send this do you as a matter of federal law (47 USC 227 - Telephone Consumer protection Act of 1991). Then if they continue to call, sue them in court for damages that are owed to you by statute.
[I]That means that you can mark all of your AOL CDs as "Return to Sender", and cost AOL even more money. [/I]
Wrong. The CDs were sent via third class mail. This is the 'it gets there when it gets there' kind of delivery service. Subsequently, if they are refused or marked in that manner, they are usually just destroyed simply because it costs more for the postal service to do more processing.
With the junkfax laws, one may go after the junkfaxer (entity that sent the fax) and/or the entity on who's behalf the fax was sent. that has been proven in many cases where the fax entity could not be identified or was an offshore (often Canada) service. If your local carpet cleaning service pays a junk fax service to send the ads, then you can sue them directly. If they want to suggest they didn't do anything wrong, then just have them identify the people that sent the ads and simply add them as a defendant and let them fight it out.
Some cases will be more tough to prove, but with a little case law, you can win. One difficult case would be something like mortgage lead spams. The spammer and website are offshore, and once they have your information, then they sell the leads to numerous companies that 'claim' to not know how the information was obtained, however this will not be a valid excuse. I haven't seen the text of the bill (will a karma whore please post it if found), but I hope the wording is like that of the TCPA (Telephone Consumer Protection Act of 1991). In order to be sent a prerecorded commercial message or commercial fax, one must have a prior business relationship or have given prior *express* permission to receive such. Express permission cannot be sold nor purchased. Those of us that run our own email servers or use catch-all domain forwarding or other such service will be able to track all emails quite easily where you can simply create a new account for every location you post, web site registration, sweepstakes entry, etc so that you can decidedly trace the method a company used to obtain your address. A company trying to suggest that you must have 'subscribed or requested at some point to be added' will be shot down faster than my advances on prom night.
You don't have to worry about stopping the spammers per se, but the people that are knowingly paying others to send the illicit ads. The spammers protect themselves decently well just like junk faxers and scamming telemarketers, but when you hit their source of money, then you cut the body off the head of the snake. If the business think they were unfairly treated, then they are free to go after the spammers they paid to send the junk. States can pass all the bills they want, but until the public has rights to collect damages that have been made themselves, such laws or bills will continue to be toothless. Washington's law, from what I understand, has been decently effective. I simply do not see how Congress can site idly much longer on this issue. This is something that is affecting more people than before. The junk fax problem was quite so widespread when Congress acted in the early 1990s. Senator Disney did well with the TCPA, so maybe an anti-spam bill would be considered someday. It would see the best time to pass this is on the heels of the implementation of the FTC/FCC regulations. Awareness will be at an all time high and the same arguments DMA, Fax.com, and other scum will try to usee will have already been shot down with fresh case law or interpretation of regulations. While some people get in the news for winning spam cases using the TCPA, it seems most of those involved default judgments (like the recent Sears case). I know this isn't an junk email list, but thought some would be interested in the obvious mirroring of aspects of the TCPA. Interesting aspect is also the additional penalty 'read: tax' going to state coffers, that will be included even if it is a private action.
One was a $1000 judgment that was paid and the other 2 were settlements provided before I even filed. My junk fax case was dismissed due to a ruling 'made in error I might add' by a local circuit judge, however arguments concerning its appeal was heard last month.
Anyone folks, do some research. It will take a weeks worth of solid, full day, research, but you can file your own suits and collect from these scum. There is a minimum $500 statutory damage for each violation that can be trebled if you can show the violator 'knowingly or willfully' violated the law. It doesn't matter that they did not know the law or not. If they knowingly sent the fax, and that fax was against the law, then they are subject to those treble damages, so then each violation is $1500. I have several cases just waiting to be filed this summer when I have a bit more free time.
Re:Something Smarter Is Needed
on
Cornucopia of Spam
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· Score: 2, Interesting
"Once laws start up the SPAMMERS will move offshore. Just like the guy who lives in Detroit. This SPAMMER lives in the US, but does not send the SPAM via the US."
Telemarketers try this, but it doesn't work because of the law. The Telephone Consumer Protection Act of 1991 allows for private right of action not just against the telemarketer, but also on who's behalf the call is placed. If the same measures are placed in spam bills, it won't matter if the spam is relayed through Korea, Iraq, or the Space Station; you will be able to sue the people that hired the spammers or those that get the financial benefit. Some people will claim that the are being joe-jobbed, but that defense rarely stands up in court. You will still get software/warez ads, porm spams, offshore cigarette ads, etc where the spammer and company are offshore, but RBLs and other black lists will be able to stem that without too much of a problem.
No, it won't supercede per se, though it will reinforce it. I am on the Florida state list and I will sign up for this as soon as it is available. In the future when I make private claims against these companies, it shows they had multiple way to know that I was supposed to have been removed.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The Supreme Court as LONG held that commercial speech is NOT free speech. Your right to advertise does not supersede my right to be left alone and not be bothered by such advertisements.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Your right of free speech stops at my mailbox. The constitution does not give you the right to electronically barge your way (uninvited) into my home, demand the use of my equipment and ink and paper supplies to present your message, shifting all your selling costs to me without my permission or request. The Telephone Consumer Protection Act of 1991 (a bill by Hollings as well) has been enforced for over a decade. It has long held that junk faxes and prerecorded calls, among other practices are illegal. Every SINGLE case concerning the first amendments have been upheld by the federal courts. You are completely ignoring the fact that political, religious, and other such speech are exempted. As a result, you may fax anyone your ideas on political change or confirmation of christ and not run afoul of the law as long as there is no commercial purpose (you aren't selling Jesus dolls)Are you going to suggest that there is such a gross amount of negligence that all these federal judges in multiple federal districts are getting it wrong? Destination Ventures, Ltd. v. FCC, 46 F.3d 54, (9th Cir. 1995), and Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 515 U.S. 1161. See also Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162 (S.D. Indiana 1997).
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Powers are still retained by the states. In fact some states have more strict laws. The TCPA was enabled to protect the consumer since states cannot easily do something that occurs outside it borders. Spam and telemarketing calls are going off shore, however the reason the TCPA and this bill still have teeth is that you can go after those on whose behalf the call is made. so unless the call and merchandise/serivce are BOTH offshore, you have a way to collect damages.
Every case challenging the TCPA on constitutional grounds (1st amendment, due process clause, etc) has ultimately held the TCPA's restrictions on faxes and telemarketing calls presents noconstitutional infirmities under First Amendment grounds. The constitution does not give you the right to electronically barge your way (uninvited) into my home, demand the use of my equipment and ink and paper supplies (in terms of junk faxing) to present your message, shifting all your selling costs to me without my permission or request.
Come courts have decided otherwsie; an 8th Circuit District Court (Eastern District of Missouri) judge recently ruled (March 13, 2002) that the TCPA is unconstitutional. The judge was none other than Rush Limbaugh's uncle, Steven Limbaugh, Sr. (not to be confused with Rush's cousin, Steven N. Limbaugh, Jr., who is the chief justice of the Missouri Supreme Court). It has been essentially attacked by every authority since. See Missouri Circuit Court judge correctly rips apart Limbaugh's ruling that the TCPA is unconstitutional. Missouri Circuit Court Judge Patrick Clifford got it right. Opinion dated 5/14/02. Decisions like these renew my faith in our legal system. This decision by the state court was extremely well done and is highly entertaining reading. Also take a look at the US Dept of Justice amicus brief in support of over turning Limbaugh's ruling. In addition, another Missouri decision upholds TCPA constitutionality on Aug 13, 2002 noting that junk faxes are no more protected than graffiti on someone else's property.
That is why the argument fails in court, but it is still used in court. I actually hope the defense, in my cases, try to use it since I can shoot them down in a matter of seconds. Spam will be much more hard to control and even once a law gets passed, even one with private action, it will be years before it becomes effective. No one would bring and action unles you can afford the time and money to take it through all the paces that will certainly be made. An attmpt to just do it half-assed will get some bad early rulings that will hurt the whole cause.
Take a look at their web site http://www.fcc.gov/eb/tcd/ufax.html
If they get enough properly formatted complaints, they will issue citations. While generally it is a 'cease and desist', they still will follow through if it continues.
The TCPA (Telephone Consumer Protection Act of 1991) will never be used to cover spam, not should it. If it were to be changed, then it would be challeneged by every major Ralwasky wannabe, thus possibly rendering the whole thing dead for the duration. Telemarketers would love to for this to happen. An often used defense (yet still struck down every time) is the suggestion that it (TCPA) violates the First Admendment. It is struck down because the Supreme Court has repeatedly said that commercial speech is not protected speech. The TCPA has teeth because of the FCCs constant review (they just ended comment period concerning the effectiveness thus far and recommendations for changes).
The TCPA will never be adjusted to include e-mail. Any attempt to do so will be very destructive. I used to think it would be a good way to do it as well until I researched the whole law and went through a couple of my own court cases.
"that they can't will themselves to give it up. They play on instead, hoping things will get better, and nursing a great and deep hatred for Sony and the game itself."
Ironic I'm using one fantasy world to describe another fantasy world, but this system sounds much like the 'One Ring' in LOTR. I am not an EQ player and will not be. I certainly know I would enjoy the game, for a while, but then I know I will fall in the same trap as just described. I don't have to be a player or even know an EQ player to realize that what was said would be true. Of course it is a money making venture. For the same reason EA Games won't fix bugs in 'Battlefield 1942' or enable ways to remove team-killers, it just isn't profitable. Why spend resources fixing the problem when it won't really keep new players away and that same time can be put into an expansion pack that just ads a few new maps and weapons (easy to create after the game engine is done) and sell it for nearly the same price as the original (which of course must already be purchased). After going through countless hours in Counter-Strike playing the same damn 4-6 maps over and over, I can understand how bad it is. I will not even try the Star Wars: Galaxies for the same reason. Same idea, just different graphics.
Every player in EQ, to me, seems to be like Gollum. Reading the article, if I replaced 'Sony' with the 'Ring' or 'Sauron' I would swear I was reading a synopsis of Tolkien's world. The plays both love and hate the game and cannot be rid of it.
Here is a listinging of the new requirments and exemptions. http://www.ftc.gov/os/2002/12/tsrfina lrule.pdf . This is going to offer a whole new box of BS for TCPA violators to confuse the judges with?
For example, 310.4(b)(4)(iii) says the telemarketer is not liable for abandonment violations if "whenever a sales representative is not available to speak with the person answering the call within two (2) seconds after the person's completed greeting, the seller or telemarketer promptly plays a recorded message that states the name and telephone number of the seller on whose behalf the call was placed".
So, they play a recording that says "Hi, this is Bambi with No-Brain Funding. We have exciting news about your mortgage, but unfortunately, our customer service agents" -- which may or may not exist -- "are assisting other customers. If you would like to hear information about how we can lower your mortgage rates to blah blah blah, press 'one' now! Or you can hang up and go *bleep* yourself."
Then when you sue them under the TCPA, they claim the call wasn't a prerecord, it was actually a live solicitation with the prerecorded message *required* by FTC regs.
And jeez! Did they offer enough exemptions?
The new rule doesn't apply to charities. -- 310.6(a) It doesn't apply to any company which takes payment after a face to face meeting (such as a carpet cleaning estimate, cable TV installation, alarm equipment estimate, etc.) -- 310.6(b)(3) It doesn't apply to inbound calls, specifically ones originating as a response to junk faxes. -- 310.6(b)(4-6) It doesn't apply to calls resulting from junk faxes. -- 310.6(b)(6) It doesn't apply to calls to businesses. -- 310.6(b)(7)
Companies are not in violation of the DNC rules if: They say they have procedures for DNC compliance in place. -- 310.4(b)(3) They say "Oops, we goofed!" -- 310.4(b)(3)
It looks like it is going to be hard to figure out for whom this bill is intended to block.
Yes, the jusge for the court is the cousin of radio personality Rush Limbaugh. There is already being handled to get this struck down since it does go against the findings of 4 other federal districts, not to mention numerous appeals, circuit, and state supreme courts.
The courts have long support that saying whatever you want, whenever you want, to whomever you want is protected speech. Commercial speech does not have to be unrestricted speech. Take the Telephone Consumer Protection Act of 1991 for instance. That federal law (47 USC 227) outlaws and regulates several components of commercial speech. Making a prerecorded solicitation to a residential line, without a prior business relationship, is outlawed.
Believe me, I won a $1500 judgement (plus court costs) against a company that made one single, prerecorded call to my home last may. I settled for a $1000 check cut by the company's insurance. Unsolicited commercial faxes sent to any fax machine, business or residential, are prohibited unless you have a prior business relationship with the company. Live (operator) solicitation calls are not prohibited outright (exception: you are on an official state DNC list) on the first occurrence. Upon your request, they must add you on their list and maintain that request for 10 years. They must also send you, again on your request, a written copy of their policy regarding the maintenance of their company's DNC list. This is a matter of federal law. If you get 2 or more calls in violation of this request in 12 months, (I know, it *is* absurd that you have to get 2 violations in 12 months [which means they can call you every 53 weeks with no repercussions], but that is the way the law is written.), then you may sue in courts for statutory damages of $500 for [b]each[/b] violation and demand treble damage of triple the amount. My suit was for the $500 violation and then the treble damages.
The law was created to prevent the abuse of privacy and the inalienable right to b simple left alone. This law has ultimately been upheld in every major case to date (exception: the cousin of Rush Limbaugh [a federal judge] prevents its use in his district, but it is currently on appeal). The best part of this law is the private right of action that this law creates. Any spam bill passed must contain this portion or it will ultimately be a dead hand law. The government does not have the resources to attack this problem, so the rights of collecting damages has been given to the people.
To date I have received $1800 in settlement due to a single prerecord from 3 different companies. I have a case in December against a local junk faxer and fully expect a $1500 judgement (plus court costs). Do a google search for just the term 'junk fax' and get your eyes opened.
Some try to (erroneously) argue that the government has better things to do than make laws like this. The government does not have to make progress on every front just to make progress on any front. It is not the mere unwanted advertising, it is the fraudulent method and often illegal or illicit methods used to push it. I for one would not have a big problem with the law legitimize commercial email if it set the requirements regarding it such as a simple field that would thus allow people to choose on their own if they wish to receive it. If something as simple as '[ADV]' were required to be added to the subject line and headers could not be forged, then the problem as it is known would die. People can set a single, simple filter to block it if they do not wish,a nd that would be the end of it. Those that wish to get it will retain that right.
You thinking billboards equals spam misses the point [b]entirely[/b]. It does detract from the natural view, however those billboards are on private property using private resources that does not directly cost the consumer anything. What about people placing ads on your windshield or through your open window? One isn't bad, but would you mind of I stuffed several hundred into your car window? That is my 'right' is it not? Obviously you have not been shafted by a 'joe job' where a spammer uses your address as their 'reply-to' or 'remove' address causing you to get hundreds or thousands of bounce messages or angry threats each hour for several days. Try actually doing some research next time.
To really provide teeth to the bill, the consumer must be allowed to enforce it by collecting damages on their own.
Ironic..not really..here is how it works
on
The Economics of Spam
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· Score: 5, Informative
I got the exact same thing yesterday in my school lab. It is not ironic since the act is intentional. It is called targeted advertising.
The message is being listed as being sent from 'WEBPOPUP' since that is the name someone used for their system. Most of these diploma traces so far go to ev1.net, though after a lot of complaints they refuse to do anything. Check out a little information concerning this issue here:
The program being used is called "Direct Advertiser". If you have NetBIOS bound to your interface, someone using net send will, by default, pipe the message over SMB to TCP 139. But if NetBIOS is not bound to the interface, net send will use UDP 135 instead. It takes the "net" command a bit longer to figure this out, but it does work.
The Direct Advertiser product just skips the preliminaries, knowing that smart system administrators close TCP 139, and goes right for the undocumented back door.
The 'Direct Advertiser' web site even tells you how to not receive these kind of things any more.
How to set up your system not to receive netbios messages
To deliver the message our program uses a NetBios call built into the Windows API.
Click Start->Setings -> Control Panel->Administrative Tools->Services Scroll down and highlight "Messenger" Right-click the highlighted line and choose Properties. Click the STOP button. Select Disable or Manual in the Startup Type scroll bar Click OK
Windows XP
Click Start->Control Panel Click Performance and Maintenance Click Administrative Tools Double click Services Scroll down and highlight "Messenger" Right-click the highlighted line and choose Properties. Click the STOP button. Select Disable or Manual in the Startup Type scroll bar Click OK
Windows 98/ME
Remove or disable the file and printer sharing from your network configuration.
Ask yourself, why would any of us typically want to uncap a broadband connection? I know it gets slow at times, but surely even with porn pop ups and flash glitz, your web broswing is fairly smooth for most sites. Email, even with spam, can be transferred quickly enough, so why go to the trouble of uncapping the bridge (cable modem or DSL for most people).
What possible reason besides online gaming would one want a fast connection? Ahh, file sharing!
Yes, I am sure most readers here use broadband speeds for getting the latest UNIX flavor builds for their system, but some people use it to share software and video/music files that are copyrighted.
So uncapping something that may or may not be their property or a violation of the TOS, but that may be the least of the worries when the FBI finds a few thousands dollars worth of software on their collective computers. Just wait until the papers report of the elite filesharing gang that was discovered after this simple test operation!
The Telephone Consumer Protection Act of 1991 prohibits several actions; such as junk faxs, prerecorded commercial calls, etc. It specifically is mentioned either in the law or through FCC memorandums throughout the years that it does not opt-out state law where that state law is [b]more[/b] restrictive. If the federal law states there can be no calls between 9PM and 8AM and the state law says no calls between 7PM and 9AM, then state law takes precedence.
When you demand to be placed on the DNC, make sure to tell them that this includes the telemarketing company placing the call (get their company name) as well as the company for whom thay are making the call. If they ever say it will take X number of days to be removed, do not belive them. If they call again an hour later, it is a violation. The law does not provide a grace period. I have a hournel that I keep near the phone as well a recorder already connected to the phone to record the prerecords if necessary.
There has been a FEDERAL law in effect for more than a decade. Try doing a google search for at least 30 seconds before making statements like this.
It outlaws several things, including all unsolicited commercial faxs, prerecorded commercial calls to residences, and an calls to devices where someone must pay for the call (e.g. cell phone, pager).
That same law, and subsequent memorandums by the FCC, state that companies MUST maintain a DNC and it must be honored for 10 years. Companies that solicited by phone must also provide their name, address, and phone number. It does not have to be asked for as they are required to give this (most ignore it though).
The law is screwy in that a telemarketer must call you at least twice in a 12 month period, after being placed on the list, before a violation occurs. Upon request, a company must also provide to you a written copy of their company's policy regarding the maintenance of their DNC list. Failure to do this is a violation of the law. This is a Federal Law that also provides a private right of action and allows you to sue the company is small claims court (or the appropiate court of your state) for damages.
In the past month, I have obtained $800 from two separate company (both mortgage companies) for prerecorded solicitations to my home. This was without going to court and simply sending them a demand letter stating my claim and backing it up with statute proof. One was local and the other was in Virginia.
On Tuesday, I won (though through default since defendant failed to show) a $1500 judgement against a company the prerecord called me in May. Today I filed a $1500 suit against a local company that sent an unsolicited fax. I sent them a certified demand letter that was returned to me yesterday as refused. So by noon today I filed suit. I've probably spent 20+ hours of research, but I have solid proof to support everything I claim as well as the case history to back it up. I will be filing against another prerecord once the time allowed by my demand letter to send me my money has expired.
You have $500 in statutory damages owed to you for every violation. If you can show that the defendant 'knowingly of willing' violated the law, then you may be awarded triple damages (for a total of $1500 for each violation for you math majors). If a company uses a prerecord, fails to provide the name of the entity, and ever refuses to provide their company's DNC policy (or more likely does not have one) then just in statutory damages you are owed $1500 for the 3 violations. Imaging the look on their face if the judge awards you treble damages!
Do research. It will be worth your time if you push this and win. After the first case and subsequent research involved, future cases will just be copy and paste demand letters and lawsuits.
Here is some stuff to help you with your research.
Use google to find information.
Telephone Consumer Protection Act of 1991 47 USC 227 (actual law) 47 CFR 227 (code of federal regulations: FCC's implementation of the TCPA)
International Science v Inacom Communications 106 F3d 1146 (holds that state courts have exclusive jurisdiction of private right of action claims)
Kaplan v Democrat and Chronicle 698 N.Y.S.2d 799 ((shows actual damages do not have to be shown [i.e. prevent defendant from saying they would own you no more than 5o cents for a junk fax])
Nicholson v Hooters of Augusta 136 F.3d 1287 (holds state courts have jurisdiction for private right of action)
Foxhall v Telecommunications Premium Services 156 F.3d 432 (same as above case)
There are several others that support same thing. Search for these cites; 156 F.3d 513, 131 F.3d 507
Kaplan v First City Mortgage 701 N.Y.S.2d 859 (shows that 'express' consent is NOT given by merely having your number in a directory. Faxers and prerecorded callers MUST have prior EXPRESS permission or an existing business relationship in order to contact you in those ways)
47 USC 312 (f) (defines what 'willfull' means - basically that it is the conscious and deliberate commission of an act, irrespective of intent to violate any provision of the regulations. If they meant to fax you (e.g not a transposition of two numbers error), then they are guilty of the violation whether or not they knew it was against the law.
Moser v FCC 46 F.3d 970 (holds that prerecords are not constitutionally protected speech).
Destination Ventures v FCC 844 F. Supp 632 (holds that the TCPA is constitutionally valid)
States may have thie own law, however they are not preemptive unless they are MORE restrictive than the federal law. If the TCPA requires telemarketers to maintain a list for 10 years and the state law requires something more restrictive, like 15 years, then the state would preempt.
I've put a lot of research into this. I'm not in this for the money as I would rather have this practice ended. I've taken steps like writing the DMA (the RIAA of the marketing world) to be placed on their list as well as my own state's DNC list, so this certainly isn't an attempt to rake in the money.
How long is it going to be now for RIAA to ask for legislative permission to use torpedoes and their own naval forces to take care of the 'pirate problem'? After all, if they can hack into your systems with full legal protection to go after the small fry traders, then shouldn't they have just as much power to go after the bigger violators? How long until we have a real RIAA Capt Nemo in a sub with anti-society crew members on a quest against the pirates of the world?
The name sounds like it could have almost been the name of a character in LOTR. Thanks for the information. Has anyone found a source of the music on the early trailer for the first movie. I beleive it was 'Gothic Power' but never could find it.
After the thread regarding junk faxes/telemarketing calls a few weeks ago, I am happy to say I won my first case. The company I was going to sue over a prerecorded call agreed to pay $300 plus a promise to never call again.
However a few things are incorrect in your statement. Filing fees can vary greatly. In my county, for a claim of less than $100, there is a $79 fee. For anything between $100 and $5000, it is $96 (I know, strange but true). In several states, you are allowed to have a lawyer represent you, so it isn't just person vs person, although the judge may provide you with a lot more leeway. I now have one suit pending and am prepared to file another if they do not meet my demands within another week. Judgement is the easy part, collecting can be impossible.
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So you're saying you may have routinely violated state laws in regards to recording? Multiple states have 'all-party' recording laws. All parties to a conversation must be aware of the recording.
The dead air calls are caused by automated dialers. A telemarketer will typically have more lines than sales people. Say you have 20 lines and 10 reps, the lines would all be dialed..some get busy signals, so are not in service, and some get answered. The first 10 people that pick up instantly get transferred to a rep. You information pops up on their screen before you finish saying 'hello?'. A delay before they pick up can be a result of their not getting the information fast enough or starting the speech too late, though typically only a 2-3 second lag. The dead air you get is a result of 10 other people getting to the phone before you. Once all the telemarketers are busy, then the system is supposed to hang up, but they typically means your phone rings once more, and even if you pick up, the system may already be hanging up. The problem, however, is that the identification requirements are not met. Persons or entities placing a call are supposed to identify themselves (by full name) and provide and address or phone number. Once the call is placed, the solicitation has begun, whether you ever hear a single word or not. Unfortunately, telemarketers hide their Caller ID info, though this should end in 2004 when FTC regulations come into effect.
I have had several suits and settlements regarding telemarketing myself and am about to file several more. Exercise your rights.
Unfortunately, like in this case, it is easier for the person to break the law and just pay off a few people clued in while raking in money from the ignorant.
"Plainly, it ought not to be cheaper to violate the Act and be sued than to comply with the statutory requirements." Bueno v. MATTNER, 633 F. Supp. 1446, 1467 (1986) quoting Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1332 (5th Cir. 1985)
No the best thing to do is to exercise your rights. Saying you are not interested and hanging up does nothing. They can continue to call after that. You need to SPECIFICALLY demand that your name be placed ON their Do Not Call list (i.e. not removed from some other generic list...this is important). Then demand a copy of their written policy regarding the maintenance of their Do Not Call list. They are required to send this do you as a matter of federal law (47 USC 227 - Telephone Consumer protection Act of 1991). Then if they continue to call, sue them in court for damages that are owed to you by statute.
[I]That means that you can mark all of your AOL CDs as "Return to Sender", and cost AOL even more money. [/I]
Wrong. The CDs were sent via third class mail. This is the 'it gets there when it gets there' kind of delivery service. Subsequently, if they are refused or marked in that manner, they are usually just destroyed simply because it costs more for the postal service to do more processing.
With the junkfax laws, one may go after the junkfaxer (entity that sent the fax) and/or the entity on who's behalf the fax was sent. that has been proven in many cases where the fax entity could not be identified or was an offshore (often Canada) service. If your local carpet cleaning service pays a junk fax service to send the ads, then you can sue them directly. If they want to suggest they didn't do anything wrong, then just have them identify the people that sent the ads and simply add them as a defendant and let them fight it out.
Some cases will be more tough to prove, but with a little case law, you can win. One difficult case would be something like mortgage lead spams. The spammer and website are offshore, and once they have your information, then they sell the leads to numerous companies that 'claim' to not know how the information was obtained, however this will not be a valid excuse. I haven't seen the text of the bill (will a karma whore please post it if found), but I hope the wording is like that of the TCPA (Telephone Consumer Protection Act of 1991). In order to be sent a prerecorded commercial message or commercial fax, one must have a prior business relationship or have given prior *express* permission to receive such. Express permission cannot be sold nor purchased. Those of us that run our own email servers or use catch-all domain forwarding or other such service will be able to track all emails quite easily where you can simply create a new account for every location you post, web site registration, sweepstakes entry, etc so that you can decidedly trace the method a company used to obtain your address. A company trying to suggest that you must have 'subscribed or requested at some point to be added' will be shot down faster than my advances on prom night.
You don't have to worry about stopping the spammers per se, but the people that are knowingly paying others to send the illicit ads. The spammers protect themselves decently well just like junk faxers and scamming telemarketers, but when you hit their source of money, then you cut the body off the head of the snake. If the business think they were unfairly treated, then they are free to go after the spammers they paid to send the junk. States can pass all the bills they want, but until the public has rights to collect damages that have been made themselves, such laws or bills will continue to be toothless. Washington's law, from what I understand, has been decently effective. I simply do not see how Congress can site idly much longer on this issue. This is something that is affecting more people than before. The junk fax problem was quite so widespread when Congress acted in the early 1990s. Senator Disney did well with the TCPA, so maybe an anti-spam bill would be considered someday. It would see the best time to pass this is on the heels of the implementation of the FTC/FCC regulations. Awareness will be at an all time high and the same arguments DMA, Fax.com, and other scum will try to usee will have already been shot down with fresh case law or interpretation of regulations. While some people get in the news for winning spam cases using the TCPA, it seems most of those involved default judgments (like the recent Sears case). I know this isn't an junk email list, but thought some would be interested in the obvious mirroring of aspects of the TCPA. Interesting aspect is also the additional penalty 'read: tax' going to state coffers, that will be included even if it is a private action.
One was a $1000 judgment that was paid and the other 2 were settlements provided before I even filed.
My junk fax case was dismissed due to a ruling 'made in error I might add' by a local circuit judge, however arguments concerning its appeal was heard last month.
Anyone folks, do some research. It will take a weeks worth of solid, full day, research, but you can file your own suits and collect from these scum. There is a minimum $500 statutory damage for each violation that can be trebled if you can show the violator 'knowingly or willfully' violated the law. It doesn't matter that they did not know the law or not. If they knowingly sent the fax, and that fax was against the law, then they are subject to those treble damages, so then each violation is $1500. I have several cases just waiting to be filed this summer when I have a bit more free time.
"Once laws start up the SPAMMERS will move offshore. Just like the guy who lives in Detroit. This SPAMMER lives in the US, but does not send the SPAM via the US."
Telemarketers try this, but it doesn't work because of the law. The Telephone Consumer Protection Act of 1991 allows for private right of action not just against the telemarketer, but also on who's behalf the call is placed. If the same measures are placed in spam bills, it won't matter if the spam is relayed through Korea, Iraq, or the Space Station; you will be able to sue the people that hired the spammers or those that get the financial benefit. Some people will claim that the are being joe-jobbed, but that defense rarely stands up in court. You will still get software/warez ads, porm spams, offshore cigarette ads, etc where the spammer and company are offshore, but RBLs and other black lists will be able to stem that without too much of a problem.
No, it won't supercede per se, though it will reinforce it. I am on the Florida state list and I will sign up for this as soon as it is available. In the future when I make private claims against these companies, it shows they had multiple way to know that I was supposed to have been removed.
You know nothing of what it violates.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The Supreme Court as LONG held that commercial speech is NOT free speech. Your right to advertise does not supersede my right to be left alone and not be bothered by such advertisements.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Your right of free speech stops at my mailbox. The constitution does not give you the right to electronically barge your way (uninvited) into my home, demand the use of my equipment and ink and paper supplies to present your message, shifting all your selling costs to me without my permission or request. The Telephone Consumer Protection Act of 1991 (a bill by Hollings as well) has been enforced for over a decade. It has long held that junk faxes and prerecorded calls, among other practices are illegal. Every SINGLE case concerning the first amendments have been upheld by the federal courts. You are completely ignoring the fact that political, religious, and other such speech are exempted. As a result, you may fax anyone your ideas on political change or confirmation of christ and not run afoul of the law as long as there is no commercial purpose (you aren't selling Jesus dolls)Are you going to suggest that there is such a gross amount of negligence that all these federal judges in multiple federal districts are getting it wrong? Destination Ventures, Ltd. v. FCC, 46 F.3d 54, (9th Cir. 1995), and Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 515 U.S. 1161. See also Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162 (S.D. Indiana 1997).
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Powers are still retained by the states. In fact some states have more strict laws. The TCPA was enabled to protect the consumer since states cannot easily do something that occurs outside it borders. Spam and telemarketing calls are going off shore, however the reason the TCPA and this bill still have teeth is that you can go after those on whose behalf the call is made. so unless the call and merchandise/serivce are BOTH offshore, you have a way to collect damages.
Every case challenging the TCPA on constitutional grounds (1st amendment, due process clause, etc) has ultimately held the TCPA's restrictions on faxes and telemarketing calls presents noconstitutional infirmities under First Amendment grounds. The constitution does not give you the right to electronically barge your way (uninvited) into my home, demand the use of my equipment and ink and paper supplies (in terms of junk faxing) to present your message, shifting all your selling costs to me without my permission or request.
h er_cases/o lympic-1a.pdfc e/other_cases/s t-lou-1a-ua.pdfe nce/other_cases/D OJAmicusSupportingMissouri.pdf
Texas v. ABF, 121 F.Supp. 2d 1085 (W.D. Tex, 2000)(fax calls)
Destination Ventures Ltd. v. FCC, 46 F.3d 54 (9th Cir.1995) aff'g 844 F.Supp. 632 (D. Or.1994)(fax calls)
Moser v. FCC, 46 F.3d 970 (9th Cir. 1995) (telemarketing calls) cert. denied, 515 U.S. 1161 (1995)
Kenro, Inc. v. Fax Daily, Inc., 904 F.Supp. 912 (S.D.Ind.1995) reh'd. 962 F.Supp. 1162 (S.D.Ind. 1997)(fax calls)
Szefczek v. Hillsborough Beacon, 668 A.2d 1099 (Super. Ct. N.J. 1996) (telemarketing calls).
Come courts have decided otherwsie; an 8th Circuit District Court (Eastern District of Missouri) judge recently ruled (March 13, 2002) that the TCPA is unconstitutional. The judge was none other than Rush Limbaugh's uncle, Steven Limbaugh, Sr. (not to be confused with Rush's cousin, Steven N. Limbaugh, Jr., who is the chief justice of the Missouri Supreme Court). It has been essentially attacked by every authority since. See Missouri Circuit Court judge correctly rips apart Limbaugh's ruling that the TCPA is unconstitutional. Missouri Circuit Court Judge Patrick Clifford got it right. Opinion dated 5/14/02. Decisions like these renew my faith in our legal system. This decision by the state court was extremely well done and is highly entertaining reading. Also take a look at the US Dept of Justice amicus brief in support of over turning Limbaugh's ruling. In addition, another Missouri decision upholds TCPA constitutionality on Aug 13, 2002 noting that junk faxes are no more protected than graffiti on someone else's property.
Links:
http://www.junkfax.org/fax/reference/ot
http://www.junkfax.org/fax/referen
http://www.junkfax.org/fax/refer
That is why the argument fails in court, but it is still used in court. I actually hope the defense, in my cases, try to use it since I can shoot them down in a matter of seconds. Spam will be much more hard to control and even once a law gets passed, even one with private action, it will be years before it becomes effective. No one would bring and action unles you can afford the time and money to take it through all the paces that will certainly be made. An attmpt to just do it half-assed will get some bad early rulings that will hurt the whole cause.
Take a look at their web site http://www.fcc.gov/eb/tcd/ufax.html
If they get enough properly formatted complaints, they will issue citations. While generally it is a 'cease and desist', they still will follow through if it continues.
The TCPA (Telephone Consumer Protection Act of 1991) will never be used to cover spam, not should it. If it were to be changed, then it would be challeneged by every major Ralwasky wannabe, thus possibly rendering the whole thing dead for the duration. Telemarketers would love to for this to happen. An often used defense (yet still struck down every time) is the suggestion that it (TCPA) violates the First Admendment. It is struck down because the Supreme Court has repeatedly said that commercial speech is not protected speech. The TCPA has teeth because of the FCCs constant review (they just ended comment period concerning the effectiveness thus far and recommendations for changes).
The TCPA will never be adjusted to include e-mail. Any attempt to do so will be very destructive. I used to think it would be a good way to do it as well until I researched the whole law and went through a couple of my own court cases.
"that they can't will themselves to give it up. They play on instead, hoping things will get better, and nursing a great and deep hatred for Sony and the game itself."
Ironic I'm using one fantasy world to describe another fantasy world, but this system sounds much like the 'One Ring' in LOTR. I am not an EQ player and will not be. I certainly know I would enjoy the game, for a while, but then I know I will fall in the same trap as just described. I don't have to be a player or even know an EQ player to realize that what was said would be true. Of course it is a money making venture. For the same reason EA Games won't fix bugs in 'Battlefield 1942' or enable ways to remove team-killers, it just isn't profitable. Why spend resources fixing the problem when it won't really keep new players away and that same time can be put into an expansion pack that just ads a few new maps and weapons (easy to create after the game engine is done) and sell it for nearly the same price as the original (which of course must already be purchased). After going through countless hours in Counter-Strike playing the same damn 4-6 maps over and over, I can understand how bad it is. I will not even try the Star Wars: Galaxies for the same reason. Same idea, just different graphics.
Every player in EQ, to me, seems to be like Gollum. Reading the article, if I replaced 'Sony' with the 'Ring' or 'Sauron' I would swear I was reading a synopsis of Tolkien's world. The plays both love and hate the game and cannot be rid of it.
Here is a listinging of the new requirments and exemptions.a lrule.pdf . This is going to offer a whole new box of BS for TCPA violators to confuse the judges with?
http://www.ftc.gov/os/2002/12/tsrfin
For example, 310.4(b)(4)(iii) says the telemarketer is not liable for abandonment violations if "whenever a sales representative is not available to speak with the person answering the call within two (2) seconds after
the person's completed greeting, the seller or telemarketer promptly plays a recorded message that states the name and telephone number of the seller on whose behalf the call was placed".
So, they play a recording that says "Hi, this is Bambi with No-Brain Funding. We have exciting news about your mortgage, but unfortunately, our
customer service agents" -- which may or may not exist -- "are assisting other customers. If you would like to hear information about how we can
lower your mortgage rates to blah blah blah, press 'one' now! Or you can hang up and go *bleep* yourself."
Then when you sue them under the TCPA, they claim the call wasn't a prerecord, it was actually a live solicitation with the prerecorded message *required* by FTC regs.
And jeez! Did they offer enough exemptions?
The new rule doesn't apply to charities. -- 310.6(a)
It doesn't apply to any company which takes payment after a face to face meeting (such as a carpet cleaning estimate, cable TV installation, alarm equipment estimate, etc.) -- 310.6(b)(3)
It doesn't apply to inbound calls, specifically ones originating as a response to junk faxes. -- 310.6(b)(4-6)
It doesn't apply to calls resulting from junk faxes. -- 310.6(b)(6)
It doesn't apply to calls to businesses. -- 310.6(b)(7)
Companies are not in violation of the DNC rules if:
They say they have procedures for DNC compliance in place. -- 310.4(b)(3)
They say "Oops, we goofed!" -- 310.4(b)(3)
It looks like it is going to be hard to figure out for whom this bill is intended to block.
Yes, the jusge for the court is the cousin of radio personality Rush Limbaugh. There is already being handled to get this struck down since it does go against the findings of 4 other federal districts, not to mention numerous appeals, circuit, and state supreme courts.
The courts have long support that saying whatever you want, whenever you want, to whomever you want is protected speech. Commercial speech does not have to be unrestricted speech. Take the Telephone Consumer Protection Act of 1991 for instance. That federal law (47 USC 227) outlaws and regulates several components of commercial speech. Making a prerecorded solicitation to a residential line, without a prior business relationship, is outlawed.
Believe me, I won a $1500 judgement (plus court costs) against a company that made one single, prerecorded call to my home last may. I settled for a $1000 check cut by the company's insurance. Unsolicited commercial faxes sent to any fax machine, business or residential, are prohibited unless you have a prior business relationship with the company. Live (operator) solicitation calls are not prohibited outright (exception: you are on an official state DNC list) on the first occurrence. Upon your request, they must add you on their list and maintain that request for 10 years. They must also send you, again on your request, a written copy of their policy regarding the maintenance of their company's DNC list. This is a matter of federal law. If you get 2 or more calls in violation of this request in 12 months, (I know, it *is* absurd that you have to get 2 violations in 12 months [which means they can call you every 53 weeks with no repercussions], but that is the way the law is written.), then you may sue in courts for statutory damages of $500 for [b]each[/b] violation and demand treble damage of triple the amount. My suit was for the $500 violation and then the treble damages.
The law was created to prevent the abuse of privacy and the inalienable right to b simple left alone. This law has ultimately been upheld in every major case to date (exception: the cousin of Rush Limbaugh [a federal judge] prevents its use in his district, but it is currently on appeal). The best part of this law is the private right of action that this law creates. Any spam bill passed must contain this portion or it will ultimately be a dead hand law. The government does not have the resources to attack this problem, so the rights of collecting damages has been given to the people.
To date I have received $1800 in settlement due to a single prerecord from 3 different companies. I have a case in December against a local junk faxer and fully expect a $1500 judgement (plus court costs). Do a google search for just the term 'junk fax' and get your eyes opened.
Some try to (erroneously) argue that the government has better things to do than make laws like this. The government does not have to make progress on every front just to make progress on any front. It is not the mere unwanted advertising, it is the fraudulent method and often illegal or illicit methods used to push it. I for one would not have a big problem with the law legitimize commercial email if it set the requirements regarding it such as a simple field that would thus allow people to choose on their own if they wish to receive it. If something as simple as '[ADV]' were required to be added to the subject line and headers could not be forged, then the problem as it is known would die. People can set a single, simple filter to block it if they do not wish,a nd that would be the end of it. Those that wish to get it will retain that right.
You thinking billboards equals spam misses the point [b]entirely[/b]. It does detract from the natural view, however those billboards are on private property using private resources that does not directly cost the consumer anything. What about people placing ads on your windshield or through your open window? One isn't bad, but would you mind of I stuffed several hundred into your car window? That is my 'right' is it not? Obviously you have not been shafted by a 'joe job' where a spammer uses your address as their 'reply-to' or 'remove' address causing you to get hundreds or thousands of bounce messages or angry threats each hour for several days. Try actually doing some research next time.
To really provide teeth to the bill, the consumer must be allowed to enforce it by collecting damages on their own.
I got the exact same thing yesterday in my school lab. It is not ironic since the act is intentional. It is called targeted advertising.
e s/ popupspam/index.htm
The message is being listed as being sent from 'WEBPOPUP' since that is the name someone used for their system. Most of these diploma traces so far go to ev1.net, though after a lot of complaints they refuse to do anything. Check out a little information concerning this issue here:
http://www.mynetwatchman.com/kb/security/articl
The program being used is called "Direct Advertiser". If you have NetBIOS bound to your interface, someone using net send will, by default, pipe the message over SMB to TCP 139. But if NetBIOS is not bound to the interface, net send will use UDP 135 instead. It takes the "net" command a bit longer to figure this out, but it does work.
The Direct Advertiser product just skips the preliminaries, knowing that smart system administrators close TCP 139, and goes right for the undocumented back door.
The 'Direct Advertiser' web site even tells you how to not receive these kind of things any more.
How to set up your system not to receive netbios messages
To deliver the message our program uses a NetBios call built into the Windows API.
Click Start->Setings -> Control Panel->Administrative Tools->Services
Scroll down and highlight "Messenger"
Right-click the highlighted line and choose Properties.
Click the STOP button.
Select Disable or Manual in the Startup Type scroll bar
Click OK
Windows XP
Click Start->Control Panel
Click Performance and Maintenance
Click Administrative Tools
Double click Services
Scroll down and highlight "Messenger"
Right-click the highlighted line and choose Properties.
Click the STOP button.
Select Disable or Manual in the Startup Type scroll bar
Click OK
Windows 98/ME
Remove or disable the file and printer sharing from your network configuration.
Ask yourself, why would any of us typically want to uncap a broadband connection? I know it gets slow at times, but surely even with porn pop ups and flash glitz, your web broswing is fairly smooth for most sites. Email, even with spam, can be transferred quickly enough, so why go to the trouble of uncapping the bridge (cable modem or DSL for most people).
What possible reason besides online gaming would one want a fast connection? Ahh, file sharing!
Yes, I am sure most readers here use broadband speeds for getting the latest UNIX flavor builds for their system, but some people use it to share software and video/music files that are copyrighted.
So uncapping something that may or may not be their property or a violation of the TOS, but that may be the least of the worries when the FBI finds a few thousands dollars worth of software on their collective computers. Just wait until the papers report of the elite filesharing gang that was discovered after this simple test operation!
The Telephone Consumer Protection Act of 1991 prohibits several actions; such as junk faxs, prerecorded commercial calls, etc. It specifically is mentioned either in the law or through FCC memorandums throughout the years that it does not opt-out state law where that state law is [b]more[/b] restrictive. If the federal law states there can be no calls between 9PM and 8AM and the state law says no calls between 7PM and 9AM, then state law takes precedence.
It was probably invented by someone at Disney.
"And that was pretty much it: you know, build the belt, go out and make a lot of money, and that was it."
1. Build rocket belt
2. Test (make sure to use Chuck Norris double).
4. ???
5. Profit!!
When you demand to be placed on the DNC, make sure to tell them that this includes the telemarketing company placing the call (get their company name) as well as the company for whom thay are making the call. If they ever say it will take X number of days to be removed, do not belive them. If they call again an hour later, it is a violation. The law does not provide a grace period. I have a hournel that I keep near the phone as well a recorder already connected to the phone to record the prerecords if necessary.
There has been a FEDERAL law in effect for more than a decade. Try doing a google search for at least 30 seconds before making statements like this.
It outlaws several things, including all unsolicited commercial faxs, prerecorded commercial calls to residences, and an calls to devices where someone must pay for the call (e.g. cell phone, pager).
That same law, and subsequent memorandums by the FCC, state that companies MUST maintain a DNC and it must be honored for 10 years. Companies that solicited by phone must also provide their name, address, and phone number. It does not have to be asked for as they are required to give this (most ignore it though).
The law is screwy in that a telemarketer must call you at least twice in a 12 month period, after being placed on the list, before a violation occurs. Upon request, a company must also provide to you a written copy of their company's policy regarding the maintenance of their DNC list. Failure to do this is a violation of the law. This is a Federal Law that also provides a private right of action and allows you to sue the company is small claims court (or the appropiate court of your state) for damages.
In the past month, I have obtained $800 from two separate company (both mortgage companies) for prerecorded solicitations to my home. This was without going to court and simply sending them a demand letter stating my claim and backing it up with statute proof. One was local and the other was in Virginia.
On Tuesday, I won (though through default since defendant failed to show) a $1500 judgement against a company the prerecord called me in May. Today I filed a $1500 suit against a local company that sent an unsolicited fax. I sent them a certified demand letter that was returned to me yesterday as refused. So by noon today I filed suit. I've probably spent 20+ hours of research, but I have solid proof to support everything I claim as well as the case history to back it up. I will be filing against another prerecord once the time allowed by my demand letter to send me my money has expired.
You have $500 in statutory damages owed to you for every violation. If you can show that the defendant 'knowingly of willing' violated the law, then you may be awarded triple damages (for a total of $1500 for each violation for you math majors). If a company uses a prerecord, fails to provide the name of the entity, and ever refuses to provide their company's DNC policy (or more likely does not have one) then just in statutory damages you are owed $1500 for the 3 violations. Imaging the look on their face if the judge awards you treble damages!
Do research. It will be worth your time if you push this and win. After the first case and subsequent research involved, future cases will just be copy and paste demand letters and lawsuits.
Here is some stuff to help you with your research.
Use google to find information.
Telephone Consumer Protection Act of 1991
47 USC 227 (actual law)
47 CFR 227 (code of federal regulations: FCC's implementation of the TCPA)
International Science v Inacom Communications 106 F3d 1146 (holds that state courts have exclusive jurisdiction of private right of action claims)
Kaplan v Democrat and Chronicle 698 N.Y.S.2d 799 ((shows actual damages do not have to be shown [i.e. prevent defendant from saying they would own you no more than 5o cents for a junk fax])
Nicholson v Hooters of Augusta 136 F.3d 1287 (holds state courts have jurisdiction for private right of action)
Foxhall v Telecommunications Premium Services 156 F.3d 432 (same as above case)
There are several others that support same thing. Search for these cites; 156 F.3d 513, 131 F.3d 507
Kaplan v First City Mortgage 701 N.Y.S.2d 859 (shows that 'express' consent is NOT given by merely having your number in a directory. Faxers and prerecorded callers MUST have prior EXPRESS permission or an existing business relationship in order to contact you in those ways)
47 USC 312 (f) (defines what 'willfull' means - basically that it is the conscious and deliberate commission of an act, irrespective of intent to violate any provision of the regulations. If they meant to fax you (e.g not a transposition of two numbers error), then they are guilty of the violation whether or not they knew it was against the law.
Moser v FCC 46 F.3d 970 (holds that prerecords are not constitutionally protected speech).
Destination Ventures v FCC 844 F. Supp 632 (holds that the TCPA is constitutionally valid)
States may have thie own law, however they are not preemptive unless they are MORE restrictive than the federal law. If the TCPA requires telemarketers to maintain a list for 10 years and the state law requires something more restrictive, like 15 years, then the state would preempt.
I've put a lot of research into this. I'm not in this for the money as I would rather have this practice ended. I've taken steps like writing the DMA (the RIAA of the marketing world) to be placed on their list as well as my own state's DNC list, so this certainly isn't an attempt to rake in the money.
How long is it going to be now for RIAA to ask for legislative permission to use torpedoes and their own naval forces to take care of the 'pirate problem'? After all, if they can hack into your systems with full legal protection to go after the small fry traders, then shouldn't they have just as much power to go after the bigger violators? How long until we have a real RIAA Capt Nemo in a sub with anti-society crew members on a quest against the pirates of the world?
The name sounds like it could have almost been the name of a character in LOTR. Thanks for the information. Has anyone found a source of the music on the early trailer for the first movie. I beleive it was 'Gothic Power' but never could find it.
After the thread regarding junk faxes/telemarketing calls a few weeks ago, I am happy to say I won my first case. The company I was going to sue over a prerecorded call agreed to pay $300 plus a promise to never call again.
However a few things are incorrect in your statement. Filing fees can vary greatly. In my county, for a claim of less than $100, there is a $79 fee. For anything between $100 and $5000, it is $96 (I know, strange but true). In several states, you are allowed to have a lawyer represent you, so it isn't just person vs person, although the judge may provide you with a lot more leeway. I now have one suit pending and am prepared to file another if they do not meet my demands within another week. Judgement is the easy part, collecting can be impossible.