A few years ago, while in college, the old tv in the student lounge had a problem where the pic was either too small, or shifted down on the screen enough (bad vert. hold) to see all the little timing bars/blocks at the top of the frame. I could see some were clearly binary counters on the left, but also there was a particular block on the right that would flash when a commercial was about to start, then go solid while the commercial played, and then go off when the program returned. Since my TV now doesn't have vert. hold adjustment, I can't play with my TV to see if it still does this... does anyone know? (BTW, IIRC, these were over-air network stations... not cable, so they were probably imbeded from the network to signal to the local stations, so may not be relevant in the world of cable.)
Such messages violate the existing law, and the recepient is entitled to a mandatory minimum of $500 per message.
Acacia Mortgage in Arizona tried this.. adn they are facing several million dollars in court under the Telephone Consumer Protection Act ("TCPA"). It states at 47 USC 227(b):
It shall be unlawful for any person within the United States or
any person outside the United States if the recipient is within
the United States--
(A) to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called
party) using any automatic telephone dialing system or an
artificial or prerecorded voice--
(i) to any emergency telephone line (including any
``911'' line and any emergency line of a hospital, medical
physician or service office, health care facility, poison
control center, or fire protection or law enforcement
agency);
(ii) to the telephone line of any guest room or patient
room of a hospital, health care facility, elderly home, or
similar establishment; or
(iii) to any telephone number assigned to a paging
service, cellular telephone service, specialized mobile
radio service, or other radio common carrier service, or any
service for which the called party is charged for the call;
Joffee v. Acacia Nat'l Mtg. Corp., -- P.3d --, 2005 TCPA Rep 1381, 2005 WL 2303700 (Az. App, Sep 21, 2005) held that SMS messages to cell phones violated this law. The court stated: "27 Here, Joffe received two SMS messages from Acacia. Acacia used its computers to generate the messages and direct them to an e-mail address provided to Joffe by his carrier that was made up of Joffe's ten digit cellular telephone number and his cellular carrier's domain name. When Acacia's solicitations reached Joffe's carrier, it converted them into SMS messages and delivered them to Joffe's cellular telephone."
And in conclusion..." 49 By using an automatic dialing system to make Internet-to-phone SMS calls to Joffe's cellular telephone, Acacia violated 227(b)(1)(A)(iii) of the TCPA"
An order from the FCC also said such messages violate the law.
The law already does say that "the party on whose behalf the call is made is ultimately liable" for violations. The FCC has incorporated this into their rules interpreting the act.
If you get a call claiming to be on behalf of DTV, you have to prove the caller was DTV itself, or an agent of DTV. The content of the call is not enough (it is hearsay). Also the law does not allow the statement of a purported agent can to be used to prove agency... otherwise anyone can claim they are your agent. So if a competitor was trying to get you in trouble by making calls claiming to be you, you would have no liability unless and until there was proof other than the content of the calls themselves that you were responsible for the calls. So you never have the burden of proving someone is not your agent... the other guy (who wants to sue you for teh calls) has to prove the caller was your agent.
What you describe is an "independant contractor" under tax law, and this is a frequent misunderstanding of the role of independant contractor in agency law.
In *general* agency law, a principal is not liable for the tortious acts of an independant contractor. One big exception is when you become aware of those acts by your independant contractor, and do not "repudiate" them. If you accept the benefits of even an independant contractor's illegal acts, then you can be held liable for them. The way you excape liability is when you find out about the illegal acts, you sue the contractor, terminate the contract, and "disgourge" all income or other benefits that contractor garnered for you.
Another is the "right" to control... if you have the "right" to control the contractor, even if you do not exercise that right, then they are not an "independant" contractor. For the contractor to be independant, you must not have the right to tell them how to accomplish the task delegated to them.
Another misconception is that the agency law concept of an "independant contractor" is totally unrelated to the same term used in tax law.... a lot of people confuse them. Someone can be an IC for tax purposes, and not an IC for legal liability purposes.
The confusion comes from the fact that two separate laws relate to telemarketing.
The Telemarketing Sales Rule gives the Federal Trade Commission (FTC) authority to regulate telemarketers. But a consumer can't generally sue under this law.
The Telephone Consumer Protection Act (TCPA) gives the Federal Communications Commission similar authority, and expands it to junk faxes and prerecorded calls. It is this law, the TCPA, that also gives the consumer the right to sue the bastards in your local small claims court for $500 to $1,500 per violation.
You don't enforce it on the overseas telemarketer.... you enforce it on the US Company that hired them to sell their products. That's what agency law is all about... vicarious liability. You hire someone to do it, you are liable for what they do on your behalf. Respondeat Superior.
You need to study agency law... not torts. If a company learns its independant telemarketers are breaking the law, and does not "repudiate" those acts, the company is held liable.
By failure to repudiate, they have thereby ratified the marketer's actions on their behalf. In this context, ratification is defined in Section 82 of the Restatement (Second) of Agency (1957):
Ratification is the affirmance by a person of a prior act which did not bind him but which was done, or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally done by him.
Id. Ratification may be express or implied, and affirmance may be inferred from the failure to repudiate an unauthorized act, from inaction. "An affirmance of an unauthorized transaction can be inferred from a failure to repudiate it." Id. at 94. Receipt of the benefits of the advertising campaign by the advertisers (i.e. the sales of their goods and services sold by the telemarketer) is also ratification. See Id. at 98-99. Ratification by the advertisers of the agent's acts in this manner is thus an estoppel to Defendants' argument against liability of the advertisers. They benefitted, and failed to repudiate the marketer's actions. Each advertiser is thus liable for the marketing "as if originally done by him." Id. at 82.
Another branch of agency law holds you liable if you had the ability to control, and did not do so. DTV had that ability (according to the DTV contracts I have seen), and did not exercise it. That makes them liable.
I've litigated this many times against various telemarketing perps like DTV and won.
Recorded sales message (unsolicited advertisements as defined by the statute) are illegal when made to residences in the USA. 47 U.S.C. 227(b)(1)(B). The law lets the individual consumer sue for a mandatory minimum of $500 per violation, in addition to the FCC going after the perps.
Go down to your local small claims court and sue the bastards. It is a very rewarding experience!
I brought what was the first action (AFAIK) for violations of the national do-not-call list back in February 2004. However, the defendant settled with a nondisclosure agreement. But a number of other have brought such cases, and they are public. The Telephone Consumer Protection Act, 47 U.S.C. 227 lets the individual consumer take people to small claims court for violating the do-not-call list, sending junk faxes, and making other illegal telemarketing calls. You get $500 to $1,500 per violation.
A list of TCPA court cases regarding the national do-not-call list (as well as junk faxes and prerecorded telemarketing call) is at http://www.tcpalaw.com/free.
FWIW, both the FTC and the FCC have jurisdiction here, but the FCC law 47 U.S.C. 227 lets the individual consumer sue in addition to the FCC going after the perps.
The Fax Law (47 U.S.C. 227) works fine for me. I have successfully collected about $200,000 from junk faxers and telemarketers over the past 5 years... all in small claims court.
The FTC do-not-call list will not apply to calls from those industries (the FTC is not empowered to regulate them) but it WILL apply to calls from telemarketing firms hired BY those industries that call on their behalf.
The second shoe (a bigger and heavier one) is the FCC action that will be announced in a month or two... the FCC DOES have the express authority to enact a nationwide do-not-call list that does apply to all of those industries - every one of them.
Slashdot Mirror
A few years ago, while in college, the old tv in the student lounge had a problem where the pic was either too small, or shifted down on the screen enough (bad vert. hold) to see all the little timing bars/blocks at the top of the frame. I could see some were clearly binary counters on the left, but also there was a particular block on the right that would flash when a commercial was about to start, then go solid while the commercial played, and then go off when the program returned. Since my TV now doesn't have vert. hold adjustment, I can't play with my TV to see if it still does this... does anyone know? (BTW, IIRC, these were over-air network stations... not cable, so they were probably imbeded from the network to signal to the local stations, so may not be relevant in the world of cable.)
Acacia Mortgage in Arizona tried this.. adn they are facing several million dollars in court under the Telephone Consumer Protection Act ("TCPA"). It states at 47 USC 227(b):
any person outside the United States if the recipient is within
the United States--
(A) to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called
party) using any automatic telephone dialing system or an
artificial or prerecorded voice--
(i) to any emergency telephone line (including any
``911'' line and any emergency line of a hospital, medical
physician or service office, health care facility, poison
control center, or fire protection or law enforcement
agency);
(ii) to the telephone line of any guest room or patient
room of a hospital, health care facility, elderly home, or
similar establishment; or
(iii) to any telephone number assigned to a paging
service, cellular telephone service, specialized mobile
radio service, or other radio common carrier service, or any
service for which the called party is charged for the call;
Joffee v. Acacia Nat'l Mtg. Corp., -- P.3d --, 2005 TCPA Rep 1381, 2005 WL 2303700 (Az. App, Sep 21, 2005) held that SMS messages to cell phones violated this law. The court stated: "27 Here, Joffe received two SMS messages from Acacia. Acacia used its computers to generate the messages and direct them to an e-mail address provided to Joffe by his carrier that was made up of Joffe's ten digit cellular telephone number and his cellular carrier's domain name. When Acacia's solicitations reached Joffe's carrier, it converted them into SMS messages and delivered them to Joffe's cellular telephone."
And in conclusion..." 49 By using an automatic dialing system to make Internet-to-phone SMS calls to Joffe's cellular telephone, Acacia violated 227(b)(1)(A)(iii) of the TCPA"
An order from the FCC also said such messages violate the law.
The law already does say that "the party on whose behalf the call is made is ultimately liable" for violations. The FCC has incorporated this into their rules interpreting the act.
If you get a call claiming to be on behalf of DTV, you have to prove the caller was DTV itself, or an agent of DTV. The content of the call is not enough (it is hearsay). Also the law does not allow the statement of a purported agent can to be used to prove agency... otherwise anyone can claim they are your agent. So if a competitor was trying to get you in trouble by making calls claiming to be you, you would have no liability unless and until there was proof other than the content of the calls themselves that you were responsible for the calls. So you never have the burden of proving someone is not your agent... the other guy (who wants to sue you for teh calls) has to prove the caller was your agent.
In *general* agency law, a principal is not liable for the tortious acts of an independant contractor. One big exception is when you become aware of those acts by your independant contractor, and do not "repudiate" them. If you accept the benefits of even an independant contractor's illegal acts, then you can be held liable for them. The way you excape liability is when you find out about the illegal acts, you sue the contractor, terminate the contract, and "disgourge" all income or other benefits that contractor garnered for you.
Another is the "right" to control... if you have the "right" to control the contractor, even if you do not exercise that right, then they are not an "independant" contractor. For the contractor to be independant, you must not have the right to tell them how to accomplish the task delegated to them.
Another misconception is that the agency law concept of an "independant contractor" is totally unrelated to the same term used in tax law.... a lot of people confuse them. Someone can be an IC for tax purposes, and not an IC for legal liability purposes.
The Telemarketing Sales Rule gives the Federal Trade Commission (FTC) authority to regulate telemarketers. But a consumer can't generally sue under this law.
The Telephone Consumer Protection Act (TCPA) gives the Federal Communications Commission similar authority, and expands it to junk faxes and prerecorded calls. It is this law, the TCPA, that also gives the consumer the right to sue the bastards in your local small claims court for $500 to $1,500 per violation.
You don't enforce it on the overseas telemarketer.... you enforce it on the US Company that hired them to sell their products. That's what agency law is all about... vicarious liability. You hire someone to do it, you are liable for what they do on your behalf. Respondeat Superior.
By failure to repudiate, they have thereby ratified the marketer's actions on their behalf. In this context, ratification is defined in Section 82 of the Restatement (Second) of Agency (1957):
Ratification is the affirmance by a person of a prior act which did not bind him but which was done, or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally done by him.
Id. Ratification may be express or implied, and affirmance may be inferred from the failure to repudiate an unauthorized act, from inaction. "An affirmance of an unauthorized transaction can be inferred from a failure to repudiate it." Id. at 94. Receipt of the benefits of the advertising campaign by the advertisers (i.e. the sales of their goods and services sold by the telemarketer) is also ratification. See Id. at 98-99. Ratification by the advertisers of the agent's acts in this manner is thus an estoppel to Defendants' argument against liability of the advertisers. They benefitted, and failed to repudiate the marketer's actions. Each advertiser is thus liable for the marketing "as if originally done by him." Id. at 82.
Another branch of agency law holds you liable if you had the ability to control, and did not do so. DTV had that ability (according to the DTV contracts I have seen), and did not exercise it. That makes them liable.
I've litigated this many times against various telemarketing perps like DTV and won.
Go down to your local small claims court and sue the bastards. It is a very rewarding experience!
A list of TCPA court cases regarding the national do-not-call list (as well as junk faxes and prerecorded telemarketing call) is at http://www.tcpalaw.com/free. FWIW, both the FTC and the FCC have jurisdiction here, but the FCC law 47 U.S.C. 227 lets the individual consumer sue in addition to the FCC going after the perps.
The Fax Law (47 U.S.C. 227) works fine for me. I have successfully collected about $200,000 from junk faxers and telemarketers over the past 5 years... all in small claims court.
A bunch of cases are collected at the FCC here .
The FTC do-not-call list will not apply to calls from those industries (the FTC is not empowered to regulate them) but it WILL apply to calls from telemarketing firms hired BY those industries that call on their behalf. The second shoe (a bigger and heavier one) is the FCC action that will be announced in a month or two... the FCC DOES have the express authority to enact a nationwide do-not-call list that does apply to all of those industries - every one of them.
Methinks not... funding for it passed the house 418-7 yesterday. Quoteth a congresscritter by CNN:
"If anyone holds this legislation up, we're prepared to give out their home phone number," the Louisiana Republican said.
Senate Majority Leader Bill Frist supports the bill and is confident it will pass.