Stopping Telemarketers and Junk Faxers
Under The Telephone Consumer Protection Act by Michael C. Worsham, Esq.
Michael C. Worsham earned his J.D. from the University of Baltimore School of Law. He practices as a solo attorney, concentrating on consumer, environmental and civil rights law. He is on the MTLA Trial Reporter Committee, and a member of ATLA, TLPJ, the National Association of Consumer Advocates, and the Maryland Consumer Rights Coalition.
After a long stressful day of trial or dif- ficult settlement negotiations, trial lawyers want to relax. Unfortunately, just like ev- eryone else, lawyers are victims of the unceasing stream of telemarketing calls and unsolicited fax advertisements in their homes and offices. Fortunately Congress gave citizens a powerful statute to not only halt these annoying and often illegal so- licitations, but also to recoup something for our time and effort spent to stop these privacy intrusions. For some lawyers, the law can even become a new practice area. The Telephone Consumer Protection
Act, 47 U.S.C. § 227 (“TCPA”), was signed into law in 1991, with the Federal Communications Commission’s (FCC) implementing regulations following in 1992.1
The TCPA places restrictions on
live telephone solicitations, pre-recorded and automated solicitations, and unsolic- ited advertisements sent to telephone facsimile machines (“junk faxes”). The TCPA is a strong private-attorney-general statute, authorizing enforcement by pri- vate individuals in state courts,2
as well as state attorney general enforcement in 1
In The Matter of Rules And Regulations Imple- menting The Telephone Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd. 8752, 71 Rad. Reg. 2d (Oct. 16, 1992) (“Re- port and Order”).
2
47 U.S.C. § 227(b)(3) and (c)(5). The only reported Maryland case addressing the TCPA concluded that: “Accordingly, our state courts are faced with the extraordinary situ- ation of having exclusive jurisdiction over a private right of action brought under fed- eral law.” Worsham v. Nationwide Insurance Co., 138 Md. App. 487, 497 (2001); cert. denied, 365 Md. 268 (2001). Federal Courts, including the Fourth Circuit, have consis- tently held that the TCPA does not create jurisdiction in Federal Court. International Science & Technology Institute, Inc. v. Inacom Communications, Inc., 106 F.3d 1146 (4th Cir. 1997); Murphey v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000).
While the Court of
Special Appeals and other courts seem to have focused their decisions on statutory in-
10 3 federal courts.3 empt stricter state laws,4
The TCPA does not pre- so it does not
preempt Maryland’s prohibitions on so- licitation calls and junk faxes,5
which are
comparable to the TCPA but which have no statutory damage provisions. This ar- ticle focuses on the sections of the law of most interest to trial lawyers, including class actions and recent case law.
TCPA Restrictions On Telemarketing Solicitations A major subsection of the TCPA re- stricts telemarketing solicitations by either live sales persons or pre-recorded voices. Telemarketers must: call only between 8 AM and 9 PM, have a written do-not- call (DNC) policy on demand, train personnel engaged in an aspect of tele- phone solicitation, record and honor DNC requests, identify the telephone solicitor, apply the DNC request to all reasonably affiliated entities, and main- tain and honor a record of the DNC request for 10 years.6
only apply to solicitations made to resi- dential lines, not to calls to business lines. Notably, the TCPA makes the proscribed
terpretation, the Supremacy clause mandates that states have an original obligation to hear cases under a federal law like the TCPA. Testa v. Katt, 330 U.S. 386 (1947).
State attorney general enforcement is autho- rized by 47 U.S.C. § 227(f). The FCC can take action against violators through its gen- eral enforcement powers under 47 U.S.C. § 503.
4 47 C.F.R. § 227(e). 5
Maryland Ann. Code, Commercial Law Art., § 13-301(10) (telephone solicitations), § 14- 1313 (unsolicited facsimile transmissions) and § 14-2201 (telephone solicitations); Maryland Ann. Code, Public Utility Com- panies Art., § 8-204 (automated dialing re- strictions) and § 8-205 (prohibits caller ID blocking). Only Commercial Law Art. § 13- 301(10) and § 14-2201 provide for private enforcement, through § 13-408, for actual injury or loss, and attorney fees. 6 47 C.F.R. § 64.1200(e)(1) and (2).
Trial Reporter
acts “unlawful for any person within the United States,” so that one need not be a “telemarketer” in common parlance in order for the TCPA’s prohibitions to ap- ply.7 For live solicitations, telemarketers get
one “free bite.” The TCPA requires more than one violation within a 12 month period before a private right of action ac- crues.8
The TCPA also provides for an
affirmative defense for live solicitation calls if the telemarketer has established and implemented procedures with due care to effectively prevent violations.9
The con- These regulations
sequence of this, and weaker statutory damages provisions for live calls, means live call violations are less attractive for private enforcement actions compared to prerecorded solicitation or junk fax vio- lations. Nonetheless, private suits for live so- licitations are being filed, including at least one class action for DNC violations.10 FCC enforcement has been tightened,11 and solicitors are increasingly honoring DNC requests. Regularly making a DNC request will reduce the number of solici-
7 47 U.S.C. § 227(b)(1). 8
9 10
47 U.S.C. § 227(c)(5). Worsham v. Nation- wide Ins. Co., 138 Md. App. at 498-503. 47 U.S.C. § 227(c)(5).
Jerome Wesevich et al. v. Qwest Wireless, L.L.C., No. CV-2001-07609, 2nd Jud. Dist. Ct., County of Bernalillo, N.M. (filed Nov. 2001).
11
http://www.fcc.gov/eb/tcd/tsol.html (FCC enforcement actions). On Sep. 12, 2002, the FCC voted to initiate a rulemaking to revise its telemarketing regulations to better protect privacy, and to coordinate the cre- ation of a national do-not-call list with the Federal Trade Commission. The FTC initi- ated a rulemaking to promulgate amend- ments to the FTC’s Telemarketing Sales Rule, now due by Fall of 2002. The FTC revisions are expected to establish a national do-not- call list, and regulate caller ID, hang-up calls, prison-based telemarketing, and other as- pects of telemarketing, emphasizing reduc- tion of telemarketing fraud.
Winter 2003
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