Don’t call me (again)

According to a recent article in the Wall Street Journal, the National Do Not Call Registry is doing its job. The article states that the majority of Americans that have registered their phone numbers with the registry are receiving fewer telemarketing calls:

Approximately three-quarters of all U.S. adults (76%) say that they have signed up for the do-not-call list, a significant increase from 57% in January 2004 and 32% in September 2003, according to the online poll of 1,961 adults.

The article states that 18% of registrants say they have received no telemarketing calls whatsoever, while 61% say they have received “far less” telemarketing calls. Only about 7% seem to be receiving as many or more calls than before registering.

With the majority of Americans clearly opting out of telemarketing calls, the question remains how long telemarketing can survive. Fortunately, the Telephone Consumer Protection Act of 1991 does provide some teeth that consumer’s can use to protect themselves.

The TCPA prohibits the sending of junk faxes and provides clear limitations regarding under what conditions telemarketers can call a residence. The TCPA also prohibits making a “telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a [commercial advertising] message without the prior express consent of the called party,” 47 U.S.C. § 227(b)(1)(B), with limited exceptions regarding non-profit entities. The FCC has further issued regulations interpreting the TCPA, in particular stating that any prerecorded call must clearly state the name and contact information of the calling entity, and further prohibits such calls prior to 8:00am or later than 9:00pm.

Consumers have been meeting with success in fighting back against TCPA violations. According to Mark Eckenwiler’s personal account, efforts to obtain compensation and hopefully positively affect telemarketing practices can be very successful. Mr. Eckenwiler, who received an automated telemarketing call in the early morning hours, successfully filed a small claims case against the caller and recouped $500, the minimum penalty specified in the TCPA:

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.

Another success story in fighting back comes from Ryan Swamberg in a Fox News story that ran in 2005. According to Swamberg, who records every incoming telemarketing call, he has recouped thousands of dollars in damages stemming from TCPA violations and plans to write a book on the topic.

Unfortunately, despite clear indications that Americans on the whole do not care for telemarketing, it’s big business. That means it will remain the consumer’s responsibility to fight telemarketer efforts for the foreseeable future. Even so the TCPA and the Do Not Call Registry provide the means to vastly improve what has been a very bad situation.