SUING TELEMARKETERS FOR LEAVING PRERECORDED MESSAGES IN CALIFORNIA

 

It’s happened to nearly everyone.  While sitting at home on a quiet evening, maybe having dinner or relaxing in front of the television, the phone rings.  On the line is someone who will say anything to convince you that you must purchase that “dream vacation” package, unlimited weekend cell minutes, or interest-free credit card. 

 

Telemarketers, or telephone salespersons, are driving us nuts.  Almost everyone objects to the unsolicited calls, whether the interruption is in the form of a mid-dinner ring or multiple messages to delete on an answering machine at the end of the day.  Even telemarketers themselves dislike unsolicited calls called at home.  I recently contacted the president of a telemarketing agency at his home to request information on his company.  He told me three times that I was disturbing him at his home, raising his voice each time.  He then hung up on me in a fit of anger.

 

“Automatic Dialing” Machines and Prerecorded Messages

 

But telemarketing, the practice by which a business initiates a phone call in order to promote products or services, is an extremely cost-effective means of advertising.  So, despite their unpopularity, telemarketers are not going away.  Indeed, consumer groups estimate that telemarketers make up to 24 million calls per day.  And, with new machines that can employ auto-dialing to send out millions of prerecorded messages, telemarketers turn a handsome profit if they are successful even less than 1% of the time.

 

It is these new auto-dialing machines that make telemarketing such an appealing form of advertising.  Auto-dialers make many calls simultaneously, and they leave messages when an answering machine is detected.  If a person picks up, he or she hears “dead air” and a click, because the auto-dialers are programmed not to leave prerecorded messages when a person answers, thereby decreasing the risk of detection. 

 

I recently contacted a telemarketer and requested information as to how his firm advertises with these machines.  Apparently believing I was a business agent who might engage his company’s services, he explained to me how simple it is:

 

“You would provide us with a list of data, and then we would go ahead and pre-record a scripted message for you, kind of a ‘sorry I missed you message,’ that sounds crystal clear.  And then you tell us what days you want them to go out and we blast ‘em out to our database.”

 

That “database” might consist of the phone numbers at thousands, hundreds of thousands, or perhaps millions of residences.  Hence, prerecorded messages, the most annoying and widespread type of telemarketing contact, have proliferated over the past few years.  The fact that telephone subscribers incur expenses from lost time, monthly subscriptions to caller ID or privacy manager services, and the purchase of answering machines to screen calls is apparently lost on the telemarketers.

 

Telemarketers, Telemarketing Law, and Telemarketers’ Efforts to Avoid the Law

 

Not only is telemarketing effective and cheap, telemarketers are seemingly immune to national and state legislation prohibiting them from leaving prerecorded messages.  Many telemarketers know they are violating the law by leaving prerecorded messages.  They also know that a court-issued injunction could put them out of business.  So, a telemarketer pre-recording a message might try to disguise his or her voice by stuttering, stumbling, or misspeaking in an effort to foster the impression that he or she is ad libbing.  Most telemarketers are also tight-lipped when requested for information regarding their business, making it significantly more difficult for the called persons to track down the wrongdoers.

 

But, perhaps the most significant reason that the law has not halted telemarketers in their tracks is that most persons are unaware of it and the ease with which it can be enforced.  Congress enacted the Telephone Consumer Protection Act in 1991 specifically to stop this burgeoning form of advertising, and it can be very effective in driving telemarketers out of business.  Very generally, the T.C.P.A. allows a private citizen to sue a telemarketer for up to $9,000 per phone call and to get an injunction to prohibit further telemarketing.  My experience indicates that even a few people who bring legal actions can stop the telemarketers, at least in their area.  Unfortunately, however, bringing a legal action without the proper guidance can be a time-consuming, daunting task for those who do not have prior experience with the legal system. 

 

Following is some information geared towards non-attorneys who want to try to stop telemarketers in California.  I first explain the federal law, the T.C.P.A., which prohibits prerecorded messages.  Then, I discuss how to file a legal action in California’s Small Claims court, where nearly all potential claims against telemarketers would be filed by non-attorneys.  I also reference some useful websites and other repositories of information geared towards non-attorneys who want help navigating through the legal system.  I do not address recently implemented “Do Not Call” lists, which can be another effective means of stopping telemarketing.

 

Citizens’ Rights Under the United States Telephone Consumer Protection Act

 

            The Telephone Consumer Protection Act[1] prohibits certain practices involving the use of telephone equipment.  It includes a provision that, very generally, makes it unlawful for any person (or company) within the United States to initiate a telephone call to a residential telephone line with an artificial or prerecorded voice to deliver a commercial sales message[2], unless the called person expressly consented in advance.[3]  The only other exceptions are:  calls made for emergency purposes, calls made by a person with whom the caller has an established business relationship at the time the call is made, and, calls made by a tax-exempt non-profit organization.[4]  The T.C.P.A. also includes a provision that allows persons to recover up to $1500 from the violator, or the actual monetary loss if that amount is greater, for each prerecorded call.[5]  The T.C.P.A. mandates a $500 penalty, but that amount is increased to $1500 if the Court finds that the defendant’s violation of the law was “knowing or willful.”  Generally, one can prove "knowing" or "willful" unless the telemarketer puts on evidence that the call was made by mistake.

 

            Congress also authorized the Federal Communications Commission to promulgate additional regulations expanding upon the T.C.P.A. prohibitions.  Those regulations are found in the Code of Federal Regulations under Title 47 at Section 64.1200.[6]  In particular, Section 64.1200(b) - (d) set out further specific requirements for prerecorded messages, including requirements for those messages that fall within a T.C.P.A. exception, e.g., a prerecorded call that is not for commercial purposes.  The courts have consistently held that a person filing a legal action for a violation of the T.C.P.A. can recover an additional penalty of up to $1500 per violation of each of the regulations under section 64.1200.

 

            Further, under the T.C.P.A., it is illegal in the United States for any person 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[7] or an artificial or prerecorded voice to any telephone number assigned to a paging service, cellular telephone service, or any other service for which the called party is charged for the call.[8]

 

Under California state law, the use of an automatic dialing-announcing device, which randomly or sequentially dials telephone numbers and plays prerecorded messages, has been prohibited between specified hours. With exceptions, persons who violate the provision are subject to disconnection of phone service and a fine.[9]  But, there is no easy remedy for persons who have received these messages. 

 

Also in California, unsolicited prerecorded calls for the sale or lease of goods or services are banned unless a “live” operator first asks permission to play the tape. The operator must also tell the person who answers the phone the name of the caller and either the caller's address or telephone number. The operator must then ask if the person consents to hear the recorded message. The only exception is that companies can use recorded messages when they contact established customers or customers who have requested the company’s call.[10]  Any person who has suffered damages, or actual losses, as a result of the use of these types of recorded messages may bring an action against the wrongdoer to recover or obtain actual damages, an injunction, return of property, punitive damages, and potentially other relief.[11]

 

Of course, the difficulty in suing under California law is that one has to establish that he has suffered "actual" damages, which can be difficult.  Most persons are annoyed and put out by a telemarketing call, but they don’t actually lose money (or "suffer actual damages").  Because the T.C.P.A. allows the called person to recover damages more readily than does the California law, the T.C.P.A., rather than the California law, is the law of first resort for pursuing telemarketers.

 

Filing the Lawsuit and Settling or Trying the Case in California’s Small Claims Court

 

The first step to filing any legal action is identifying a “legal wrong.”  Common “legal wrongs” with which most people are familiar include, for example, assaulting another, rearending another, or stealing from another.  Just as the victims of those wrongs have legal rights that may be vindicated within the justice system, so do persons who receive prerecorded messages in violation of the T.C.P.A.  Once that wrong is committed, the person who receives the call, or the person to whom the phone number is registered, has a claim for violation of the T.C.P.A.

 

Before he files a legal action, however, he must also know the name of the wrongdoer (who will be the “defendant” in a court of law), the proper venue (usually a county) in which to file, and the proper type of court.  After identifying the defendant, the venue, and the court, one simply files papers, pays a nominal filing fee, and sets a trial date.  Following is more specific information on identifying the proper defendant and filing an action in California courts against him, her or it.

 

Identifying the Party to Sue

 

Tracking down the name and contact information of a person or entity that has left a prerecorded message is usually the most difficult part of the case, particularly when that person or entity wants to remain anonymous, as is often the case when one is knowingly violating the law.  First, listen carefully to how the person on the message introduces himself or herself in the recording.  If that person says that he is calling “for XYZ Company” or “on behalf of XYZ Company,” then the entity leaving the message is likely a telemarketing service (service bureau).  Telemarketing services are contractors that do telemarketing for the companies that advertise.  On the other hand, the advertising company itself could leave the message.  In any case, one would argue that both the telemarketing service and the company for which it is advertising are liable under the T.C.P.A., because a principal is liable for the authorized acts of its agent.

 

If the identity of the telemarketer or company for which it is advertising is not clear from listening to the message, the obvious next first step is calling the phone number on the message and asking the person who answers for the name and address of the company for which he or she works.  Occasionally, the person taking the incoming calls will give out company information, whether the information is that of the telemarketer or the company on behalf of which it is advertising.  If he or she does not do so immediately, the best thing to do is to keep talking in an effort to get the other person to keep talking.  Eventually, most persons will give up helpful corporate information.  If that doesn’t work, try calling back—another operator may be more forthcoming.  If calling back doesn’t work, some research may be necessary.  Internet search engines, of course, can be a particularly useful source of information.  But, if the web doesn’t lead to any information, an investigation service may be the next step. 

 

Almost all telemarketers are corporations or limited liability companies, as are the companies for which the telemarketers advertise.  Once one identifies the potential entity defendant, he or she must determine the identity of the “agent for service of process” (or service of the legal papers that must be filed to initiate the lawsuit) on that defendant and where that person can be found.  California’s Secretary of State website gives that information if the correct legal entity is typed in: http://kepler.ss.ca.gov/list.html  If the entity is not a California corporation or L.L.C., the registered agent information can likely be found on the Internet in the state where the entity is incorporated.  Again, Internet search engines are usually the best way to discovery this information.  Most state Secretary of State websites have a corporations' section where one can find information for the “agent for service of process.”

 

Where to File A Lawsuit

 

In California, as in most other states, the proper court in which to file a legal action depends first on where the wrong occurred, and then on the amount of potential damages.  Anyone can file a legal action in one of the divisions of the Superior Court in the county in which he or she receives the call.  That county is where the wrong was committed.  The next step is finding out the address of that Superior Court.  Information regarding all California Superior Courts can be found on the following website:  http://www.courtinfo.ca.gov/selfhelp/smallclaims/  The website also contains some excellent “self-help” information, much of which is summarized below.

 

If the damages are $5000 or less, the lawsuit can be filed in the Small Claims Division of the Superior Court.  Although one can file in the Limited Division of a state Superior Court if he claims damages of greater than $1000, bringing the case in the Small Claims Division is easier, quicker and cheaper.  Indeed, Small Claims Court is specifically designed for non-attorneys.

 

In T.C.P.A. cases, the damages claim will be, at most, $1500 multiplied by the number of illegal calls and the violations per call.  With a few conspicuous exceptions, telemarketers do not generally call the same number more than once or twice.  For that reason, most T.C.P.A. cases will involve claims for a maximum amount of anywhere from $1500 to $4500, within the jurisdiction of a Small Claims Court in California.

 

Preparing the Papers to File a Legal Action in California’s Small Claims Courts

 

In order to initiate a Small Claims Court action, the party filing the suit fills out and files a form called a “Plaintiff’s Claim,” which includes the “Information for Defendant” on the reverse side.  A copy of the form can be obtained by clicking on the following link:  http://www.courtinfo.ca.gov/forms/documents/sc100.pdf  The filing fee is $20.  

 

Filling out the form should take about ten minutes.  All of the information needed to fill out it out is provided on the form entitled “Information for the Small Claims Plaintiff,” which can be obtained by clicking on the following link:   http://www.courtinfo.ca.gov/forms/documents/sc150.pdf

 

The lines under “Plaintiff’s Claim” are pretty self-explanatory.  The defendant allegedly owes the called person the sum of $1500, $3000, or $4500 (depending on the number of violations), which amount is filled in the first box under 1.a.  Fill in the date on the first line under 1.a.  Do not check box 2, but check box 3.a. or 3.b., depending on whether payment has already been requested.  The instructions for filling in box 4 are on the form.  Boxes 5 and 6 are self-explanatory.  Unless the defendant is in the military, box 9 can be skipped.  Date and sign at the bottom.  Do not list an attorney, as attorneys are not allowed to appear in Small Claims Court.

 

Take the papers and filing fee (approximately $20-$25) to court for filing.  Select a convenient court date about 45 days out with the assistance of the clerk.  Then, serve the papers on the defendant(s).  Generally, it is wise to pay $35-75 to a professional process server to have the papers served, but the sheriff in the county in which defendant resides (or in which the registered agent for the corporation maintains his or her address) can also serve the papers.  Even a friend who is not a party in the lawsuit can serve the papers, but it is generally preferable for one to pay a professional process server or sheriff.

 

Settling the Case Before Trial

 

If the defendant is properly served, then, in all likelihood, the defendant will attempt to settle the case before trial.  If it denies any wrongdoing, it may not agree to pay anything.  Yet, if there is any potential liability (or likelihood of success by the plaintiff), most defendants would prefer to pay what to them would be a relatively nominal fine rather than send an employee to court for a day.  If the defendant doesn’t contact the plaintiff prior to the trial, it is probably reluctant to settle, and there is usually little to be gained from calling the defendant and attempting to settle.

 

Settlement negotiations do not require any particular legal knowledge or expertise.  The plaintiff should simply tell the defendant how he or she plans to prove that the defendant left the prerecorded message.  Either it sounds prerecorded, or, perhaps, there is another copy on a friend’s machine.  Surprisingly, most defendants will not deny that the message is prerecorded.

 

The other violations set out in the Code of Federal Regulations are actually much easier to prove, particularly if the plaintiff retained a copy of the tape.

 

Trying the Case

 

There really is no special trick or technique to trying a case in California’s Small Claims Court.  While most legal actions can be time-consuming and difficult, Small Claims Courts are structured specifically to enable non-attorneys to readily bring and argue cases.  Indeed, once the plaintiff has navigated his way through the process of filing and serving a defendant, the actual trial is relatively straightforward and easy.  All that is necessary is a general knowledge of the law, a good memory and a fair judge.  Just make sure to bring all the evidence, including a tape of the message and a copy of the T.C.P.A., which can be found at http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=47&sec=227  Also make sure to reference the judge as “Your Honor.”

 

On the trial date, both parties are supposed to appear in the courtroom designated on the Plaintiff’s Claim form by the Court.  While there will likely be a number of other cases, most cases are called within a couple of hours.  When the case is called, each side approaches the podium and simply explains to the judge why he, she, or it should prevail.  It is best to have a tape of the prerecorded message.  It may be difficult to convince a judge that the message was prerecorded if the defendant simply denies it.  For that reason, if other persons have received the same message (which is often the case—most telemarketing campaigns involve transmission of the same message to hundreds of thousands of persons), they should be subpoenaed to testify at trial also.  If a judge is convinced that it is prerecorded, and no exception applies, he or she should award the plaintiff $500-$1500 for each violation proved.[12]