Nomo Dial My Moto, Mr. Roboto. TCPA Privacy Law Basics Part II: Revenge of the Robocallers

In February, as part of our Privacy Law Basics blog series, I wrote on the Telephone Consumer Protection Act, the federal law that is intended to protect consumers and businesses from unwanted commercial solicitations transmitted through phone calls, faxes or text messages. Businesses found to be sending unsolicited commercial messages to individuals or businesses with which they have no existing business relationship or from which they have not secured written consent can be sued.  Or, such bad companies may be on the receiving end of a call from the FCC.  Companies found guilty of sending such unsolicited communications can pay $500.00 per message. Those damages can be tripled if the violation is "willful."  The TCPA blog also included a discussion of the FCC's Do Not Call Registry ("DNCR") and why compliance with the Registry should keep businesses out of trouble.  Simply put, if you put your number on the Registry, then businesses can't call you without your consent or some other exception in place.

If you read the TCA blog, you might be wondering, "Then what gives with these robocalls I have been getting, Scot? I am on the DNCR. How can they keep calling me?" Robocalls are phone calls that use a computerized auto dialer to deliver a pre-recorded message.  Robocalls are often associated with political and telemarketing phone campaigns.  Commercial robocallers should not be calling you without your consent. Any such unsolicited commercial robocalls are likely violating the TCPA.

Robocallers continue to call because:

(1)     They don't think you will care enough to take the time to identify them and sue them under the TCPA; AND/OR

(2)     They think regulators, like the FCC, are too busy as well.

There may be some truth to both of those assumptions. (OK - Totally serious.  I just got a robocall while typing this paragraph.)  The FCC is promising stronger enforcement of both the Do Not Call Registry and the TCPA.  But, as I often share, the law is remedial and will never work fast enough to provide you the relief or justice you want.  So, until we see stronger enforcement, there are things you can do to stop or reduce the frequency of such calls.

              1.     Register for the Do Not Call Registry.  This may seem obvious, but a good reminder all the same.  Why?  The Registry has been around for a long time (2003).  Perhaps the numbers you originally registered have changed?  Perhaps you originally signed up for your landline on the DNCR, but your cell phone is not registered?  Login and verify your active numbers are on the Registry.  The DNCR applies to both land lines and wireless phones.

              2.     Don't pick up.  If you don't recognize the number, don't pick up.  Let it go to voice mail and see if a message is even left.  If not, chances are it is a robocaller.  By picking up, you confirm to the robocaller that your number is active and attended.  In doing so, you incent the robocaller system to keep calling.

              3.     Don't push numbers.  Again, as above, you do not want to give these systems a confirmation that you exist and therefore they should keep calling you.  Often times, robocaller recordings will offer an "opt-out" if you will "simply press 1."  Perhaps they will.  Chances are that is a scam to get you to confirm your number is active.

              4.     Block the number.  Most smart phones provide you the ability to block calls right on the list of calls received.  If your phone does not, ask your service provider to provide those services or block specified numbers for you.

              5.     Beware the scam.  If you do pick up, by mistake or because you like to live on the edge, be advised that no matter how legitimate the call may sound, it may very well be a scam.  The news is full of victims of scams in which they have been convinced to give over the phone credit cards or other sensitive information.

              6.     Report the numbers to the FCC.  The FCC enforces the TCPA and manages the DNCR.  Consumers can file complaints with the FCC online.  You may not get a response to your specific complaint, but the agency uses all inputs to police issues at a national level.  (Chances are if you are getting calls from one number, others are too.)  The FCC provides extensive resources online as well.

              7.     Can't I sue?  If you read the TCPA blog in February, you know there is a private right of action available under the TCPA.  And yes, it is true that litigation has been quite active under this statute and plaintiffs have been successful. However, part of suing someone or something is being able to identify that person or entity in the first place. One of the challenges with robocallers is their use of the technology to obscure or spoof their location and identity.   So, by all means, a suit can be brought and remedies secured. However, as with all litigation, you have to be ready to spend the time and money to do so. And, a good portion of that time might be identifying a defendant. Sometimes the most effective solution is implementing smaller changes to protect oneself. But, if that doesn't work, the courts are always a place to seek relief.

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Scot Ganow |