Screwing telemarketers for fun and profit

DISCLAIMER: I am not a lawyer. I have no legal training. Do not take anything on this page as legal advice. If you do what I have done and you somehow get screwed, it's your problem. Caveat litigator.

Additional information

• Junkbusters, and more specifically their telemarketing page. This site deals mainly with how to avoid getting calls, not how to prosecute the companies that call you.
• Private Citizen, Inc., an organization dedicated to reducing junk calls and junk mail. They publish a somewhat helpful book, So... You want to Sue a Telemarketer, for $10.
• The text of the 47 USC 227 (local copy) and 47 CFR 64.1200 (local copy), from the Cornell Law School Legal Information Institute.
• Enigma, a simple program that provides a script of questions you can use when telemarketers call and a database in which to store the answers. Frankly, a 3x5 index card works just as well, but sometimes it is more fun to use a toy.

Here is the statement of claim (scanned) and the settlement agreement (OCR).

They tried very hard to convince me I had to accept a non-disclosure agreement along with the settlement, but I refused.

Boston Globe

In hindsight, I did not go to the trial particularly well-prepared. I brought with me copy of the TCPA itself (47 USC 227) and the FCC regulations related to it (47 CFR 64.1200). I also brought a short document outlining my logical argument (MS Word), but it was only intended for me to use as a reference and not in a form to give to the judge. I (accidentally) did NOT bring the small index card on which I keep a log of telemarketers I have asked to add me to their do not call list; although this is the closest thing I had to "evidence," not bringing it turned out not matter.

The Boston Globe was represented by an employee of Community Newsdealers Inc. ("CNI"), which is the Globe's wholly-owned subsidiary for telemarketing. They brought a written Defendant's Answer to Plaintiff's Complaint, a 3 page document with 36 pages of attachments. I received this document mid-trial, with no opportunity to read it. I should have asked for a brief recess to read the document, and gotten formal permission from the judge to file a response, but I did not think to do either at the time.

The Defendant's Answer made the following arguments:

1. The Boston Globe cannot be sued under 47 USC 227 because no Globe employees make telemarketing calls. Instead, their wholly-owned subsidiary CNI does.
2. CNI cannot be sued under 47 USC 227 because it "has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the Regulations," which the law provides as an affirmative defense.

I responded to and refuted both of these claims in my Plaintiff's Response to Defendant's Answer to Plaintiff's Complaint (MS Word), which I will file with the court on July 10, 2000 (Monday morning). I do not know whether such a response is allowed nor whether the judge will consider it.

Next time, I'll be better prepared.

7/10/00

I dropped off my Response today. The clerk said the judge had not yet ruled on the case and would see my document.

7/19/00

The Notice of Judgement (scanned) arrived today. The case was dismissed on the grounds that I "sued the wrong corporate entity." This is the argument made by the defendant, but is in direct violation of 47 CFR 64.1200(e)(2)(iii) as I stated in my Response: "if [do-not-call] requests are recorded or maintained by a party other than the person or entity on whose behalf the solicitation is made, the person or entity on whose behalf the solicitation is made will be liable for any failure to honor the do-not-call request."

I wrote a Motion for Reconsideration (MS Word) stating this fact, but then decided not to file it. The Court's decision basically instructs me to re-file the suit against Community Newsdealers Inc., and while the law does say that the Globe is liable, it does not say that CNI is not liable. By restarting the case from the beginning, I will be able to use the evidence gathered at the first trial and make a better-prepared attempt to get triple damages on all three calls that violated the law, instead of just the one call I received after the initial case was filed.

Community Newsdealers, Inc.

This is the second attempt related to the Boston Globe. Community Newsdealers, Inc. is their telemarketing subsidiary, and the court ruled in the previous case that I should sue them. So I am. Here is the statement of claim (scanned) and Plaintiff's Complaint (MS Word).

9/14/00

The CNI trial was today. Here is the Plaintiff's Brief (MS Word) I presented at trial. It is 8 pages long, with 24 pages of attachments (not included).

I was much better prepared this time. I presented by brief and case to the clerk-magistrate fairly well; I also asked for and got a recess to read their Answer to my complaint, which was largely the same as last time.

The bottom line is that they denied making some of the calls I claim, such that what they admit does not add up to breaking the law (surprise!). I have written evidence, they have computer database evidence. My word against theirs. The clerk-magistrate seemed generally sympathetic to my cause, and definately listened carefully, gave us both ample opportunity to speak, etc. I do not, however, expect to win. One major problem is that it is just my word against theirs. Another seems to be that the phone line they called is registered to my housemate, and not to me. We'll see.

9/21/00

I received the Notice of Judgement (scanned) and Order for Judgement and Payment (scanned) today. I was awarded $500 damages plus $19 costs, with payment ordered within 30 days. The only written comments (on the Order) from the clerk-magistrate that heard the case are "I find one violation of the 'do-not-call request' made by the plaintiff to the defendant (5/23/00)."

I consider this a mixed victory. On the down side, I argued for $6,019, and of course this is much less. The time I personally put into persuing this case, and in particular writing my complaint and trial brief, was worth much more than $500 to me, so in a sense my time was wasted. On the up side, the fact is that I at least partially won a TCPA lawsuit in court, argued in front of a clerk-magistrate, against a well-funded corporation with a legal department that had withstood all prior attempts to sue them under this law. So it is clearly a moral victory, even if not a financial gain. And the time I invested in my complaint and brief will pay off in future cases.

My guess is that CNI will appeal the decision; if they don't, they will no longer be able to claim they've never lost a TCPA case. They have 10 days to do so.

Equivest

Equivest failed to deliver its written Do Not Call policy. Statement of claim (scanned) filed on 8/3/00.

8/25/00

It turns out that Equivest did attempt to send me their DNC policy, they just had the wrong address (they sent me a photocopy of the postmarked envelope to my street address but in a different town, marked "no such address, return to sender" by the Post Office). Therefore, I dismissed the case.

Z-Tel Communications, Inc

Z-Tel called on 3/14/00, and again on 7/7/00. They also failed to deliver their written "do not call" policy after the 7/7/00 call. Statement of claim (scanned) filed on 8/8/00.

10/4/00

Z-Tel and I have settled my lawsuit. I am not permitted to disclose the terms of the settlement.

In hindsight, I regret agreeing to non-disclosure. I did so because, originally, the Z-Tel and Community Newsdealers trials were on the same day, and I did not want to overwhelm the judge; since the CNI trial was for more money, I gave it priority. I should have just continued (postponed) the Z-Tel trial, but I did not think of that at the time. Ah well, live and learn.

Greater Boston Radio (WTKK, 96.9 FM Talk)

On 11/28/00, 96.9 FM Talk called with an automated, pre-recorded telephone call promoting their station. On 4/26/01, they confirmed that they maintain a Do Not Call list, but do not have a written Do Not Call policy. Statement of claim (scanned) filed on 4/26/01.

06/07/01

They failed to show up at the trial, so I won by default. I received a Notice of Judgement for $519. I thought that if I won by default, I would get what I was asking for ($1000, possibly plus triple damages), but I guess not.

The check arrived while I was travelling in July.