In November 2002, a telemarketer called my home in D.C. at 5:24 a.m. This is the story of how that call cost him $500.
When the call came in the pre-dawn hours of November 12, it awoke me and my wife from a sound sleep. After groggily picking up the phone – my heart suddenly pounding as I dimly expected news of a death in the family or other emergency – I was appalled to hear a pre-recorded advertisement for a local handyman/landscaping service. I hung up without listening to the rest of the message.
Despite my best efforts, I couldn't get back to sleep because of the jolt of adrenalin. As I lay there cursing myself for not getting the company name and callback number, I decided to get even. Since I don't have Caller ID, I invested 75 cents in Verizon's *69 service to get the last caller's number. When I tried calling that number (240-453-XXXX), I got repeated busy signals; eventually, my call went through to what was obviously an autodialer trying to make outgoing calls.
I decided to plug the number into the reverse-lookup tool at anywho.com. (I could just as easily have used any of several similar tools.) Anywho gave me the caller's name – I'll call him "ARS" – and an address in Rockville, MD. Doing a forward lookup on the name turned up 4 more lines serving the same address; calls to those numbers resulted in busy signals all day long.
For good measure, I also checked Maryland's online real property records, and determined that ARS was the owner of record for the address in question. (FYI, there are similar free online real property search tools for numerous jurisdictions both near and far.)
Unfortunately for ARS, not only did I know how to track down telemarketers and other lower life forms; I am also an attorney. Moreover, I knew a little about the federal Telephone Consumer Protection Act of 1991 (TCPA), having published a 1996 article in NetGuide magazine on the TCPA's (in)applicability to unsolicited email, aka spam.
The TCPA forbids a variety of annoying practices, such as the sending of junk fax ads. (For more on this aspect of the TCPA, see below.) Most importantly, the TCPA prohibits making a "telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party" (47 U.S.C. § 227(b)(1)(B)). In addition, the FCC has issued regulations interpreting the TCPA. Those regulations
- require pre-recorded messages to "(1) [a]t the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and (2) [d]uring or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual" (47 C.F.R. § 64.1200(d))
- prohibit making a "telephone solicitation to a residential telephone subscriber ... [b]efore the hour of 8 a.m. or after 9 p.m. (local time at the called party's location)" (§ 64.1200(e)(1))
The happy news here, Dear Reader, is that the TCPA gives you and me the potential ability to sue if the telemarketer violates these statutory or regulatory restrictions:
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State-- (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions.If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.
47 U.S.C. § 227(b)(3). Note, however, that such suits cannot be brought in federal court, even though these are federal laws. (For an explanation, see this very detailed article.) Instead, they must be brought in the court of a "State," which includes D.C.: "The term 'State' includes the District of Columbia and the Territories and possessions." (47 U.S.C. § 153(40))
In my research in preparation for suing the pantaloons off of ARS, I learned that D.C. has its own anti-telemarketing law, which says this:
It is an abusive telemarketing act or practice and violation of this subchapter for a seller or telephone solicitor to engage in the following conduct: (1) Cause a telephone to ring more than 15 times in an intended telephone solicitation call;
(2) Initiate a telephone solicitation call to a consumer after the same consumer has expressly stated that he or she does not wish to receive solicitation calls from that seller; or
(3) Engage in telephone solicitation to a consumer's residence at any time before 8:00 a.m. and after 9:00 p.m., local time at the place of the consumer called.
D.C. Code § 22-3226.08. While D.C. law also provides for a private right to sue for violations, unfortunately it does not set a minimum amount of statutory damages (unlike the TCPA's minimum of $500 per violation).
Having researched the law to death, I turned to the next question: where to sue? It turns out that D.C.'s Small Claims Court has jurisdiction over disputes up to $5,000; even better, claims for up to $500 – the liquidated damages for a TCPA violation – incur the lowest filing fee. The D.C. Bar Association has a good introduction to D.C. Small Claims available here. A very similar but slightly more detailed write-up is over here.
In drafting my complaint (redacted versions available in WordPerfect 9 and Adobe PDF formats), I decided to assert a single claim under the TCPA for $500 even though ARS had violated multiple provisions. I was pretty confident that no judge would award $500 for the too-early hour of the call, and then award another $500 for the unsolicited recording used in the same call. (Setting out two separate claims would also have pushed my "amount in controversy" over $500, increasing my filing fee to a whopping $10.) A genuine mad-dog litigant would instead have split out the violations into two separate counts.
The next day (Nov. 13), I paid a call on the H. Carl Moultrie I Courthouse at 500 Indiana Ave. NW in Judiciary Square. Small Claims is located on the John Marshall (translation: basement) level in room JM-260, at the far east end of the building. I showed up around 8:30 a.m. and waited no more 5 minutes to see a clerk at the intake window. The clerk was pleasant and helpful.
Having over-prepared, I had a completed Small Claims Form, which looks like this in blank, and a printout of my complaint. Practice tip: Don't bother printing and filling out a copy of the downloaded claims form. The clerk will only ask you to use their multi-copy, prenumbered form instead. Also, make sure you have your personal calendar with you, as the clerk will ask when you want to schedule your hearing; a typical time frame is about 4 weeks later. I picked December 12 for my hearing.
By the way, you'll never get a better bargain on revenge than at Small Claims Branch. It cost me $5 to file, plus an additional $5.62 to have ARS served by "restricted mail", i.e., certified mail with restricted delivery. I could have opted for certified mail ($4.42) instead, but the clerk suggested that when someone else signs for the envelope, defendants sometimes argue they never received the mailing. Either way, save your receipts; if you win the case (and were smart enough to ask for "costs" on top of your damages in the complaint), the defendant will be required to reimburse you.
Back to the hearing date.... The night before the hearing (Dec. 11, 2002), I called 879-1120 to listen to the calendar for the next day. When my case wasn't on the list, it meant that something had gone wrong with service of process by mail. A call to the clerk the next day confirmed the unhappy news: ARS hadn't accepted the certified mailing after 3 attempts. At this point, with the holidays coming up I more or less put the case out of my mind for several weeks. (Some preliminary investigation on the cost of using a process server – $50 and up – also led me to conclude quickly that this was not a sensible option, given the uncertainty of ever recovering that cost.) As a result, in early February the court mailed me a computer-generated notice advising that unless I took action, my case would be dismissed on February 26 for failure to prosecute.
At this point, I had to decide whether to drop this quixotic project or to ratchet it up. I went back to Small Claims on February 25, which charged me another $5 (essentially a second filing fee with the curious designation "alias") plus $4.42 for a second try at service by mail. The new hearing date was March 25. This time, though, I made sure ARS would receive notice of the lawsuit: in addition to having the court send an official summons, I made copies of the papers, put them in an unmarked envelope, and mailed them to ARS first class. While this would never count as having officially served him with notice of the suit, it would at least get his attention (if not induce a myocardial infarction) and flush him out … I hoped.
My diabolical scheme worked like a charm. On the Saturday before the hearing my phone rang, and when I picked up it was ARS asking for me. Instead of being obnoxious and accusatory, he was surprisingly sheepish and apologetic. He explained that his secretary had misprogrammed the dialer, causing it to dial out too early in the morning. (Naturally, I pointed out to him that placing unsolicited pre-recorded calls to a residence is illegal at all times of day.) Most importantly, though, he asked if we couldn't just settle the case by having him pay me $500.
Well, duh.
Apparently, ARS either didn't want to face a judge and admit what he'd done, or simply was too busy MAKING MONEY FAST!!! via telemarketing to waste time traveling to downtown DC. Either way, I was only too happy to reach an agreement with him. I made him promise to mail the check from a post office that same day so I'd have it Monday. ARS also faxed me a copy of his check (which he had already prepared!) and a blank "praecipe" (rhymes with "recipe"), a form he had gotten from the clerk that parties use to make a joint request to the court, often in view of settlement. (Intriguingly, his check was written on the bank account of his own landscaping company, suggesting that he was telemarketing his own services and not someone else's.)
On Monday, I called the Small Claims clerk to ask for pointers on drafting the praecipe. Eventually, I settled on language that a) postponed the March 25 hearing in light of the pending settlement agreement and b) agreed to dismissal of the case in 21 days absent further action by the plaintiff (me). This approach left plenty of time for the check to arrive and, more importantly, for it to clear. ARS agreed to the terms, and I faxed the praecipe – which ARS had rather naively signed in blank; lucky for him I'm honest – to Small Claims at 879-8349. His check was waiting for me in the mail when I came home that evening.
If I were really a mean bastard – yeah, I hear you muttering "Didn't he say he's a lawyer"? – I'd have tried to force ARS to agree to a judgment against him, in which case I could have filed a bill of costs to recoup my filing and service fees. Partly because ARS was obsequiously agreeable throughout the endgame, but primarily because I didn't want to make another trip over to the courthouse, I decided to let it go. I'm gracious that way when I sue people.
The Small Claims process in D.C. – at least what I saw of it – was so painless as to be dangerously addictive. While the decor in the clerk's office leaves a lot to be desired, the staff were consistently helpful and professional during my phone calls and in-person visits, and you can’t beat the results if your case has merit. (While sharing news of my success, I learned from a work colleague that she had used Small Claims previously to recover $5,000 from a crooked used-car dealer.)
Total costs: Approximately $20.79 out of pocket, including *69 charge and filing & service fees, plus 2 trips to the courthouse and the occasional phone call (and keep in mind I could have gotten my out-of-pocket costs down to 75 cents with a little obstinacy)Return on investment: $500 cash; a heaping serving of Revenge, The Dish Best Served Cold™; and one telemarketer who I am certain will never call me again
The TCPA and Telemarketing in General
At least one outfit (based, amusingly enough, in Rockville, MD) has a website offering a $30 "how to" guide for bringing suit under the TCPA. Go ahead and squander your simoleons if you want, but I believe there's plenty of clear, informative advice available gratis. If you think you can't figure this stuff out by yourself and want to pay someone, then you ought to hire a real lawyer who – unlike the "how to" guide sellers – will be on the hook to render actual legal advice.
- link to absurdly long URL at uscode.house.gov
- link to long URL at the Government Printing Office
- http://www4.law.cornell.edu/uscode/47/227.html
- http://www.stopjunkcalls.com/227.htm
- http://www.junkfaxes.org/47usc227.txt
- Text of the TCPA from various sources
- another link to a long URL at the GPO site
- http://www.junkbusters.com/fcc.html#subpL
- http://www.stopjunkcalls.com/64120.htm
- Copies of the FCC regulations implementing the TCPA
- link to long D.C. Code URL
- The chapter of D.C. law dealing with telemarketing
- http://www.privacyrights.org/fs/fs5-tmkt.htm
- Detailed fact sheet from Privacy Rights Clearinghouse
- http://ftp.fcc.gov/cgb/consumerfacts/tcpa.html
- http://ftp.fcc.gov/cgb/consumerfacts/unwantedfaxes.html
- FCC fact sheets on telemarketing and junk fax issues under the TCPA
- http://ftp.fcc.gov/cgb/policy/telemarketing.html
- FCC collection of background documents on the rulemaking process for the TCPA regulations
- http://www.epic.org/privacy/telemarketing
- Extensive info from EPIC, with lots of links to other resources
- http://www.junkbusters.com
- Another exhaustive resource, which is slightly marred by some minor errors. For example, it says that the telemarketer has to violate the law twice in one year to be liable to you. That's correct as to violations of the "do-not-call" list and related regulations – for which you can sue under 47 U.S.C. § 227(c)(5) – but it's dead wrong on TCPA violations arising under subsection (b): thus, a single pre-recorded, unsolicited telemarketing call to your home is enough to incur liability under the separate right of action set forth at 47 U.S.C. § 227(b)(3).
- On the other hand, JunkBusters has a wonderful set of scripts to use when telemarketers call.
- http://www.stopjunkcalls.com/script.htm
- Clever scripts & suggestions for putting the screws on a telemarketer. A sample:
Listen carefully to how the telemarketer introduces himself. If he says that he is calling "for xyz company" or "on behalf of xyz company," then it is a sure bet you are talking to a telemarketing service (service bureau). Get friendly with the telemarketer. I say something like this: "John, you told me you were calling on behalf of Megabank Visa. I am involved in the telemarketing industry. Are you an employee of Megabank, or are you a third party service bureau?" Most will tell you the name of the bureau. This is valuable information. If you later decide to sue, contacting the service bureau and telling them that you are going to sue their client (Megabank Visa) may result in a settlement. After all, if you were a telemarketing company, would you want your client sued because one of your minimum wage telemarketers screwed up?
- http://www.junkfaxes.org
- http://www.junkfax.org/fax/basic_info/junk_fax_qa.htm
- How to inflict pain and suffering on junk fax senders
- http://www.ftc.gov/bcp/conline/edcams/donotcall/index.html
- FTC site about the national do-not-call registry set for launch in mid-2003
- http://www.edcombs.com/CM/Actions/actions146.asp
- http://www.jtexconsumerlaw.com/Telephone.pdf
- Detailed legal discussions of various aspects of the TCPA
Tips & Tools for Identifying Telemarketers
To sue a telemarketer (or send a pre-litigation demand letter), you first have to figure out who or where he is. Technically, all telemarketers are supposed to provide identifying information about themselves during the call, but if you've read this far then maybe you know that telemarketers don't always obey the law.
If a telemarketer leaves a message on your answering machine, you have 2 separate ways to run him to ground. First, there's the phone number he called from, which you may be able to obtain via Caller ID or *69. (Note that in 2004, the FTC's amended Telemarketing Sales Rule will require telemarketers to transmit their telephone number, and if possible, their name, to consumers' caller ID services.) Second, there will typically be a callback number, usually either local or toll-free.
Once you have a number, try running it through a few of the reverse-lookup services. For good measure – especially when investigating toll-free numbers – also run searches through Google and Google Groups. (The latter, a database of Usenet postings, may turn up Usenet spam from your telemarketer, or perhaps a "spam-sightings" report from a recipient of email spam containing the phone number.) And, of course, you can call the number to try to find out. Tip: Unless you're calling to have yourself put on their DNC list (in which case you'll have to disclose your number), you should probably take steps to avoid revealing the number you're calling from. If you're calling a local or toll number, dial *67 first to block your number. Since number blocking does not work when you call a toll-free number, I recommend calling from a payphone; this has the extra benefit of costing the called party about 24 cents on top of their usual costs for the call.
If you can get a person or company name or address, you're good to go. At this stage, you can run forward phone directory lookups; more Google searches; searches on real property records; and even free searches on state corporations databases. (For corporate registration records, see this useful compilation of links or try customizing this Google search.) Also useful is the preliminary free info available from this Dun & Bradstreet search engine.
- http://anywho.com/rl.html
- http://www22.verizon.com/utilities/reverselookup
- http://www.phonenumber.com/10006/reverse_phone.xhtml
- Telephone number reverse-lookups
- http://www.taxpayerservicecenter.com/RP_Search.jsp?search_type=Assessment
- http://sdatcert3.resiusa.org/rp_rewrite/
- http://ci.alexandria.va.us/city/reasearch/rea_search_by_address.pxe
- http://www.co.fairfax.va.us/dta/re/propadd.asp
- http://www.co.arlington.va.us/REAssessments/Scripts/DreaDefault.asp
- Online real property databases for DC; Maryland; Alexandria, VA; Fairfax County, VA; and Arlington County, VA. Also potentially useful is this collection of links to databases for numerous jurisdictions across the U.S.
D.C. Small Claims Court
- http://www.dcbar.org/for_lawyers/courts/superior_court/civil_division/smclaimconcil.cfm
http://www.justiceonline.org/consum/small_claims.html- Useful guides to litigating in D.C. Small Claims Court
- http://www.dcbar.org/for_lawyers/courts/superior_court/forms.cfm
- More DC Superior Court forms than you can shake a stick at, even if you are very good at shaking sticks
I'm sure you're a nice person and all – unless you're a telemarketer/junk-faxer/spammer, in which case you should be flayed, disemboweled, and roasted on a spit over an open fire – but I'm not your lawyer. If you want formal legal advice, you need to pay someone for the privilege. Pointing your web browser at this site is not an especially good way to establish a confidential attorney-client relationship, if you get my drift.
Send comments, kudos, criticisms, encomia, or brickbats about this page – or vainglorious accounts of your own successful and remunerative efforts at following in my footsteps – to tcpa[at-sign]eckenwiler.org. If, on the other hand, you are a mindless email-address-scraping bot being run by a bottom-feeding spammer, please feast on this delicious page.
Thanks to Tony Whitledge for his helpful suggestions on improving this page.
Originally posted on April 19, 2003; last updated on May 1,
2003.
Copyright 2003 Mark Eckenwiler.
My new HTML coding technique is unspeakable.
