The Law

Observations about Illegal Telemarketing Calls

It is obvious to anyone who owns a phone that telemarketers have taken over the phone system in the US.  Most people do not even answer a call that originates from a number they do not recognize.  People who conduct business by phone, for instance realtors, find that sometimes half the calls they receive are illegal auto dialed marketing calls.  The federal and state Do Not Call lists provide no protection at all from these calls.

Federal Law

The Federal Telephone Consumer Protection Act (TCPA)

The Telephone Consumer Protection Act ( 47 United States Code Section 227) was enacted in 1991 to protect consumers from unsolicited and unwanted communications. The TCPA prohibits the use of Automatic Telephone Dialing Systems from sending calls or text messages or leaving “artificial voice messages” or recorded human voice messages to consumers who do not have an existing business relationship with the caller or have not provided express written permission to receive those calls. The law applies to both business and personal cell phones. You do not have to actually answer the call. The TCPA requires that you receive two calls from the same violator before you are permitted to take action. There is no requirement that you had previously told them not to call or that you be on the no-call list.

Best of all, the law provides for “private action” and establishes statutory damages of $500 or $1500 per call based upon whether the call was “willful”. You do not have to be listed on the “do not call” list, although being on that list is evidence that the call is willful and should incur the higher damage amount of $1500 per call. The private action can be taken in state courts. In many state court cases, like those in small claims court, you need not be represented by an attorney. If Florida, for instance, cases under $8,000 are handled in small claims court.

You should add yourself to the National Do Not Call List by visiting www.donotcall.gov  or by calling 888-382-1222 using the phone you wish to register. If you register online, you MUST follow the link in the confirmation email that will be sent to you in order to complete the process. The fact that you are on the no call list will be meaningless to illegal telemarketers but will be evidence of the wilfulness of their misconduct.

An automated or “robo” call is a call dialed by a computer. Computers allow telemarketers to make billions of calls per day. An indication that you have been robo-dialed is when you hear dead air while trying to answer the call, and then hear some clicking noises and then you finally hear a pre-recorded voice message or your call is transferred to a live person.

If you have received unsolicited telemarketing calls or prerecorded or auto-dialed calls, you should keep detailed notes about the call. The date, time, number the call originated from, the name of the company represented the name of the person with whom you spoke, and notes about the conversation you had.

For more information about the Telephone Consumer Protection Act, go here: TCPA

Florida Law

Florida provides for action against illegal telemarketers similar to the federal Telephone Consumer Protection Act. In fact, the Florida statutes provide an even wider range of protection to consumers.

The Florida Telephone Solicitation Act

Florida Statutes 501.059 known as the Telephone Solicitation Act prohibits certain action by telephone solicitors and provides a right of private action. Below are some of the provisions:

True Identity – Any telephone solicitor who makes an unsolicited telephonic sales call to a residential, mobile, or telephonic paging device telephone number shall identify himself or herself by his or her true first and last names and the business on whose behalf he or she is soliciting immediately upon making contact by telephone with the person who is the object of the telephone solicitation.

Do Not Call list – No telephone solicitor shall make or cause to be made any unsolicited telephonic sales call to any residential, mobile, or telephonic paging device telephone number if the number for that telephone appears in the then-current quarterly listing published by the department.

Automatic Dialer – A person may not make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called without the prior express written consent of the called party.

Number Spoofing – It shall be unlawful for any person who makes a telephonic sales call or causes a telephonic sales call to be made to fail to transmit or cause not to be transmitted the originating telephone number and, when made available by the telephone solicitor’s carrier, the name of the telephone solicitor to any caller identification service in use by a recipient of a telephonic sales call. However, it is not a violation to substitute, for the name and telephone number used in or billed for making the call, the name of the seller on behalf of which a telephonic sales call is placed and the seller’s customer service telephone number, which is answered during regular business hours. If a telephone number is made available through a caller identification service as a result of a telephonic sales call, the solicitor must ensure that telephone number is capable of receiving telephone calls and must connect the original call recipient, upon calling such number, to the telephone solicitor or to the seller on behalf of which a telephonic sales call was placed. For purposes of this section, the term “caller identification service” means a service that allows a telephone subscriber to have the telephone number and, where available, the name of the calling party transmitted contemporaneously with the telephone call and displayed on a device in or connected to the subscriber’s telephone.

Right to Private Action – A called party who is aggrieved by a violation of this section may bring an action to…Recover actualdamages or $500, whichever is greater.
(b) If the court finds that the defendant willfully or knowingly violated this section or rules
adopted pursuant to this section, the court may, in its discretion, increase the amount of the award toan amount equal to not more than three times the amount available under paragraph (a).

The Florida Telemarketing Act

Florida Statute 501.601, the Florida Telemarketing Act, is similar to the Telephone Consumer Protection Act above. With a few exceptions, the Florida Telephone Solicitation Act described above provides aggrieved consumers a better path to recourse against telemarketers. It is mentioned here just so that you can be aware of it.

Florida Statutes, 501-601-626 prohibits illegal telephone sales and marketing in Florida.  It also provides the right to private action against offenders.  This act provides powerful tools against illegal telemarketers such as attorney fees and punitive damages.  Other provisions of the act take away much of the consumer protection the act seems to grant.

Exemptions:  Although the Florida Telemarketing Act provides generally better protection from illegal marketers, it limits that protection by 28 paragraphs of exemptions for specific business types.  Insurance agents, investment brokers and advisors, newspaper sales people, magazine sales people and a host of others are free to make phone calls, even auto dialed phone calls, to Florida citizens, even those on the Do Not Call list! 

Of particular note is the exemption for the insurance industry.  Senior citizens in Florida receive several calls a day from automatic calling machines in India, Pakistan and the Philippines.  Most of those calls are “spoofed”.  A “spoofed” call appears to have been made from a US phone number, usually from the recipients area code, in order to conceal the true origin of the call.  Those calls are not prohibited by the Florida Telemarketing Act does not prohibit those calls, even to citizens who have indicated their desire not to receive them by putting their phone number on the State or Federal Do Not Call registry. 

The exemption section. FS 501.604 is confusing, vague and without logic.  It does not have to be. 

Vicarious Liability:  A merchant who wished to escape responsibility for illegal sales calls simply hires a marketing agency to provide referrals to that merchant.  The marketing agency operates an offshore call center where millions of phone calls or texts are generated to prospective customers.  If someone answers a call, a call center employee is notified by the system and picks up the call.  The delay in the call center employee picking up the call is when the recipient will hear silence, then a bleep sound when the call is picked up by a human.  The call center employee, who will introduce himself or herself with an American sounding name, then proceeds to “qualify” the potential customer with a few questions. 

Once the call center employee has determined that the potential customer falls within the parameters established by the receiving merchant, the call center will connect the call to an end merchant to whom the “live lead” is sold.  The end merchant will then make the sales pitch.

If an action is brought by the end merchant, the merchant will claim that he or she did not make the call and is therefore not responsible for it.  The merchant is able to provide a contract with the marketing firm wherein the marketing firm (call center), promises not to violate US law and will not call people on the Do Not Call list.  To overcome this “wink and nod” arrangement, the recipient of the call would the burden of establishing a common law agency relationship between the end merchant and the call center.  That difficult burden is on the citizen.  Even if liability could be established as to the end merchant, who is really just a salesperson, would lack deep pockets.  The entity who is truly the cause of the problem, the insurance company who the independent agent represents, is a whole other level away. 

Another issue is that when the call center casts its net across millions of Floridians in complete disregard for the Do Not Call laws, the call may be abandoned by the call center or end merchant because they realize that the number is on the DNC list.  The DNC screening was done after the call was made and answered by the recipient.  Often the call center will screen a call it made, and forward it to a pool of end merchants who will realize that it is a call to a DNC number and refuse to take it.  The damage was done when the phone of the recipient rang. 

The two biggest impediments of the Florida Telemarketing Act are the confusing and broad exemptions, and the lack of a provision to make the merchant who receives an illegal call responsible for it.

About Private Action

The problem of unwanted telemarketing calls is so pervasive in Florida, as well as nationwide, that government resources are insufficient to address the overall problem.  Private action by citizens and lawyers representing them is authorized by statute. 

In larger cases, if an attorney is willing to put in the investigative time and the pockets of the offender are deep enough….and liability can be established…..and the offender is not exempt..private action is workable using an attorney. Most often, attorneys will charge an hourly rate to handle these cases. Rarely will they take a case on a contingency basis.

Nothing contained on this website should be regarded or considered as legal advice. The information provided here is for the purpose of educating the public regarding the problems associated with illegal telemarketers who use automatic calling devices. Each state may have its own additional laws related to this topic with are not discussed here. Although we have an affiliate link here to robocalls.cash, a forum for consumers who bring action against TCPA violators, suethespammers.com is not responsible for any content posted on that site, or any other site. The information provided here is not a substitute for the professional advice or service of a licensed lawyer.