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Tuesday, August 24, 2010

How to Sue a Telemarketer - Guest blogger Steve Ostrow

What do you do when a telemarketer calls you?  Before the Do Not Call Registry was made, we used to give the phone to one of our daughters (under the age of 7) and they would keep rambling until the telemarketer would hang up.  Or we would answer the phone and lay it down next to the TV.  What is amazing to me is how many times the same telemarketer will call you in one day if you don't answer the phone! 

Well, please help me in welcoming Steve Ostrow to Books and Needlepoint today.  He is the author of How to Sue a Telemarketer.

HOW TO SUE A TELEMARKETER IN SMALL CLAIMS COURT

Congress has spoken! Anti-telemarketing legislation has been passed. Under reasonable restrictions, certain tactics by telemarketers are prohibited and court actionable. Violations can be enforced by the State via the attorney general’s office, the public via class action lawsuits or private lawsuits, and individuals via the small claims court.

The Telephone Consumer Protection Act of 1991 (TCPA) started the ball rolling. Congress was torn between the special interest lobbyists and the people’s vote. The green cash of the lobbyists stalled the legislature for numerous years, but eventually the annoyance of the telemarketing industry became too much. The door opened and the unfettered invasion of free speech was outweighed by the consumer’s right to privacy. After strong objection and outrage by consumers groups, the common sense legislation protecting the privacy of one’s own home was long overdue.

The 1991 original law was pretty weak and without sharp teeth. A free bite at the apple was given and the first offense by a telemarketer to a residence was forgiven with only a simple apology. A second offense was required in order to make an unsolicited commercial call actionable. Basically business did not change under the original law. In 2003, over great objection from the special interest groups, came the National Do Not Call Registry. Yes, 2003 was a great year for the peace and quiet in a consumer’s home. Instead of a consumer requesting individual companies from not calling the home telephone soliciting their service, a residential consumer could sign up at one location and prohibit almost all telemarketers from calling the home phone number. The burden shifted to the telemarketing companies to check “the registry” rather than having the consumer contact the merchant and opt out. Penalties were instituted which are collectible by attorney generals, lawyers, and individuals through the small claims process.

Under the TCPA and the Do Not Call Registry, there are several different violations which are collectible. The most popular ones are:

1. Calling a residential telephone number that is on the National Do Not Call Registry;
2. Using a pre-recorded dialing device to initiate a commercial sale;
3. Using a blocked telephone number when initiating a commercial sale;
4. Soliciting a consumer before 8am or after 9pm;
5. Failure to provide a copy of the company’s Do Not Call Manual after demand for a copy;
Each violation is actionable separately, or can be “stacked” together when multiple infractions are incurred. Even though the courts are supposed to punish each violation with a $500 penalty, different judges will approach cases differently. Some judges will allow you to “stack” as many violations into one case as possible. Others may limit you to one, two, or three causes of action. Regardless of the amount of the judgment, you are able to prosecute the invasion of your peace and privacy in your home through the small claim courts.

Penalties under the TCPA may be “trebled” when the court finds that the violation is intentional. It can be tedious to understand when a telemarketing violation is intentional and when it is not. Rationally thinking, all solicitations by telemarketers are intentional; they are intentionally picking up the phone at their boiler rooms and randomly telephoning as many people as possible making their commercial pitch. It is not accidental that your number may be called, just random bad luck. I guess the easiest way to understand the intentional tripling of damages is using the playoff basketball foul analogy. Some fouls are hard basketball fouls, some are flagrant one fouls, and others flagrant two. Sometimes you just shoot free throws, other times you get ejected from the game. Sometimes the court awards you $500; sometimes the atrocious call telephone solicitation can be awarded $1,500. It’s all up to the ref.
If you are a Democrat and you get a telephone solicitation from a Republican candidate, slow down before you start licking your lips about bringing the opposing political party to its knees. Under the TCPA, certain types of speech are exempted from lawsuits under the Act. Always remember, the violations under the TCPA were balanced with the First Amendment Right of Freedom of Speech. Certain solicitation exceptions are specifically carved out:


1. Tax exempt non-profit organizations, including political parties and campaigns;
2. Organizations with which you’ve had a prior business relationship;
3. Organizations with which you’ve given prior written permission and not expressly revoked;
4. Calls which are NOT COMMERCIAL.
Convenience is a big part of our lives. All of us would like to nail these pesky telemarketers; sometimes it is easier just to hang up the telephone. However, if you are in the mood to make some cash and fight back against these commercial parasites, the good news about small claims court litigation is that it can prosecuted in our home backyard. Since the violation occurred at our telephone, the proper jurisdiction for the action would be our local court.



Steve Ostrow is an attorney, celebrity impersonator and the author of the new book How To Sue A Telemarketer: A Manual for Restoring Peace On Earth One Phone Call At A Time. To date, Steve has successfully sued, or settled, won and collected, over 10 judgments against telemarketers. To find out more and order his book, go to www.howtosueatelemarketer.com.


About the book: Telemarketers have been a pain in the general public’s behind for decades. Thanks to their interrupting us day and night, the telephone has been transformed from a convenience, into a source of annoyance and frustration.
How To Sue A Telemarketer: A Manual For Restoring Peace On Earth One Phone Call At A Time is a tongue-in-cheek manual that shows the average citizen how they can fight back against a telemarketer by taking them to small-claims court. Half humorous and half How to, How to Sue a Telemarketer combines comedy with savvy information about the legal system and step-by-step instructions on how consumers can sue telemarketers.

“I wrote How To Sue A Telemarketer for all the good, kind and ordinary people of the world who simply want to have a quiet dinner, or a beer and watch a basketball game, without getting interrupted by someone who doesn’t give a damn about them,” says Steve Ostrow, the books author and an attorney for over 30 years.

In addition to his work as an attorney, Steve has been seen on the Tonight Show, Jimmy Kimmel and The Ellen DeGeneres Show as a celebrity impersonator for the television character Kramer, of the famed Seinfeld television show. Just visualize Cosmo Kramer going to law school. How would he defend the public’s right to have some peace and quiet in their homes? This book is it. How To Sue A Telemarketer will comically take the reader through the process of:

• What to do when a telemarketer first calls

• Gathering information to file a civil complaint

• Filing and serving of the complaint

• What to do in court all the way through collection on the judgment

• Everything you need to know about suing telemarketers

Join us on the How To Sue A Telemarkter virtual tour. To learn more about the tour, visit http://bookpromotionservices.com/2010/07/05/how-to-sue-a-telemarketer/. You can also learn more about How to Sue a Telemarketer at http://howtosueatelemarketer.com/









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5 comments:

Kaye said...

As annoying as these calls are, it's more annoying that congress exempts political calls from this law. They put thousands and thousands of people out of work but we can be bombarded with robotic political messages all day long.

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Hey, this is an awsome blog, this is my first time commenting since I usually just read. You should keep up the great work, I think you will be making tons of money soon off of this blog if you aren't already!

Cheers
-Steven

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