August 31, 2003 is the date that I entered my residential phone number with the National Do Not Call Registry. It seems that my respite from the annoyance of telemarketers was short. On those occasions when there is an actual person on the line, I have reminded them that my phone number is in the Do Not Call Registry. I have given stern, unambiguous directions to cease calling my number. I have cursed them (sometimes to the third generation) and steadfastly declined to do business with them, and the calls continue. I also signed up with the (Indiana) Attorney General’s Do Not Call List and reported multiple violations to the AG. Yet it seems that nothing was done, and the calls were unabated. With the tepid enforcement from State¹ and Federal government, what’s a harried consumer to do? The answer is to “sue the bastards,” just like they taught you in law school.
The problem with some consumer protection measures is that there may be a right without a remedy, or at least without a meaningful private remedy. For instance, Indiana regulates autodialers at IC 24-5-14. While “any person” may sue a violator, the relief under IC 24-5-14-9 is exclusively injunctive. Indiana’s do not call law can be found at IC 24-4.7. Section 5 of Article 4.7 describes the available civil remedies, which may be sought only by the Attorney General (or his designee). Suing the bastard is a lot less fun when you can’t earn a few dollars along the way.
Is there a meaningful private remedy under Federal law? The answer lies in 47 U.S.C. § 227 a/k/a the Telephone Consumer Protection Act. The Federal Act seems to cover residential phone line consumers and cell phone users from unwanted telemarketing calls. Oddly, the greatest statutory protection is afforded to cell phone consumers. There is a statutory command to the FCC at 47 U.S.C. § 227(b)(2)(A) to “consider” prescribing regulations to allow businesses to avoid receipt of some robocalls. I have found no evidence that the FTC “considered” a regulation to protect businesses, and the FTC regulations at 47 CFR § 64.1200 expired December 12, 2016. One isolated bit of business protection applies to unwanted fax transmissions from telemarketers.²
The jewel in the constellation of this mostly unhelpful Federal law is the private right of action granted at 47 U.S.C. § 227(b)(3) allowing (in lieu of actual damages) liquidated damages of $500.00 per violation and further allowing a chance at treble damages in cases of a willful or knowing violation. Is there State Court jurisdiction for this Federal cause of action? Yes, there is. While there is no attorney fee provision in this law, it is the CLB’s official opinion that each telephone call is a violation worth from $500.00 to $1,500.00.
If the violation happens to be unwanted telemarketing calls to a residential land line, the lawyer should ask his client to confirm his registration of the phone number with the National Do Not Call Registry. Here’s how to confirm. Visit www.donotcall.gov to verify the registration. You will be asked to key in the phone number and to provide an email address for the confirmation.
Given the proclivity of telemarketers to call again and again, there can be no shortage of opportunities to sue for enough violations to make the effort worthwhile. Given the poor and imprecise memories of most clients, they need a lawyer’s advice (and maybe a checklist) for maintaining a record of actionable calls.
Businesses that violate telephone privacy laws should be sued to extinction. Federal and State governments seem entirely too cozy with the violators. It is up to the lawyers to handle it…for the public good. Go now and sue somebody.
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¹The AG’s website brags about $2.2 million collected since 2002 from “robocallers” and Do Not Call Violators. If you’re a violator, this is a small cost of doing business.
²I found four Indiana cases citing the Telephone Consumer Protection Act, the most notable of which involved a lawyer’s class action suit against a robofaxer. See Core Funding v. Young, 792 N.E.2d 547 (Ind.Ct.App. 2003). By comparison Illinois and Ohio appellate case searches for the Act provided dozens of hits.
³Compare this to FDCPA litigation wherein a rogue debt collector may violate the law multiple times and face a single imposition of liquidated damages.
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