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Do you feel like you are constantly being called or texted by telemarketers and robocallers? Do not feel alone as most Americans receive calls from telemarketers several times a day. To help people combat this harassment the federal and most state governments have implemented consumer protection laws that target telemarketers and robocallers. In this article, we will discuss your rights against telemarketers and how to sue a telemarketer or robocaller in small claims.
What Are Your Rights Against Telemarketers?
The main law that protects you as a consumer is the Telephone Consumer Protection Act, known as the TCPA. Since the TCPA is a federal law, consumers in all states are protected by the TCPA from telemarketers. In addition to the TCPA, your state may give you additional protections against telemarketers. Below we go over your rights as a consumer under the TCPA as well as additional protections afforded to consumers in California and New York.
Your Rights Under the Federal Telephone Consumer Protection Act
The TCPA is a federal law that aims to protect consumers from telemarketers. This law protects consumers from harassing messages they may be receiving through their home phones, cell phones (including text messages), and even fax machines. The TCPA sets a series of rules that telemarketers have to follow, and if they don't, then the telemarketing company can be required to pay a penalty to the consumer.
Here is a list of some of the requirements that telemarketers must follow under the TCPA:
TCPA 47 U.S.C. sec. 227(b)(A) states that it shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States, to initiate any telephone call (including a text message) to any telephone line to deliver a message without the prior express consent of the called party.
TCPA 47 U.S.C. sec. 227(b)(B) also prohibits telemarketers from using pre-recorded or artificially created voices to call consumers without their consent.
TCPA 47 U.S.C. sec. 227(c)(5) makes two or more communications within a 12-month period made to telephone lines listed on the National Do Not Call Registry a violation.
TCPA 47 U.S.C. sec. 227(c)(5)(b) gives consumers an action to recover up to $500 in damages for each such violation.
If a telemarketer violates the rules set in place by the TCPA, then the telemarketer may be held responsible and have to pay one of the fines listed below to the consumer they called:
The maximum standard TCPA violation fines: $500 - This fine is the maximum amount you can request for a standard violation of the TCPA guidelines. For example, if you receive a scam robocall even though your number is registered on the National Do Not Call Registry, then you can sue the spam callers and request up to $500.
The maximum treble TCPA violation fines: $1,500 - You are entitled to up to 3 times the standard fine amount for every intentional or knowing violation. For example, if you received a text message from a telemarketer and clearly asserted that you do not wish to receive more texts but then receive another text message from the same telemarketer you can sue the telemarketer for $500 for the initial text message and then up to $1,500 for the second violation.
Your Rights Under State Laws Against Telemarketers
Under the TCPA you have federal protections against telemarketer harassment, however, depending on your state you may also have additional protections that if violated you can sue a telemarketer. Below we have included two states, New York and California, as examples of how states protect consumers against telemarketers.
California Laws Against Telemarketers
California has adopted several laws regarding telemarketer fraud and telemarketer scams to protect consumers, as well as help consumers, take legal action once they have a claim against telemarketers. California law also allows consumers to bring a small claims case against telemarketers to enforce penalties for violations of state or federal telemarketing laws. Below we have included some of the California laws that protect consumers from telemarketers. However, this is not an exhaustive list and you should do your own research for laws that are more tailored to your specific situation.
Under California Code sec. 17591, you can find a list of unlawful uses of the National “do not call” registry. For example, it is unlawful for a person to deny or interfere in any way with a subscriber’s rights to place a California telephone number on the “do not call” list.
California Code sec. 17592(c), states no telephone solicitor shall call any telephone number on the current “do not call” list and engage in certain activities. For example, telemarketers cannot call someone on the “do not call” list and “seek marketing information that will or may be used for the direct solicitation of a sale of goods or services to the subscriber.”
Under California Code sec. 17593(b) “any person who has received a telephone solicitation that is prohibited by Section 17592, or whose telephone number was used in violation of Section 17591, may bring a civil action in small claims court…”
New York Laws Against Telemarketers
New York has also adopted several laws regarding telemarketer fraud, scams, and harassment to protect consumers and help them take legal action once they have a claim against them. Below we have included New York’s telemarketing laws. However, just as with California, this is not an exhaustive list and you should do your own research for laws that pertain specifically to your situation.
Under NY GBS sec. 399-z(1)(k), the New York legislature has defined “unsolicited telemarketing” sales call to mean “any telemarketing sales call or text message other than (i) in response to an express written or verbal request by the customer; or (ii) in connection with an established business relationship, which has not been terminated by either party, unless such customer has stated to the telemarketer that such customer no longer wishes to receive the telemarketing sales calls of such telemarketer.”
Under NY GBS sec. 399-z(2), no telemarketer is allowed to call consumers at any time other than between 8:00 A.M. and 9:00 P.M. unless the consumer has expressly consented to a call at a different time.
Under NY GBS sec. 399-z(6), telemarketers are not allowed to engage in any telemarketing sales call by means of a pre-recorded message, unless the consumer has expressly consented to this in writing.
How to Register Your Phone on the National Do Not Call Registry
The Federal Trade Commission (FTC) is the federal consumer protection organization that manages the National Do Not Call Registry. Why should you register your phone number on the National Do Not Call Registry? If you wish to stop telemarketing or robocalls you should register your phone number with the National Do Not Call Registry as a first step. However, consumers should be aware that not all calls are covered by the National Do Not Call Registry.
Calls Not Covered by the National Do Not Call Registry
Below are the 4 types of calls not covered under the National Do Not Call Registry
Companies with which a consumer has an established business relationship
The first three types of calls are pretty straightforward, however, what does it mean to have an “established business relationship” with a company? The FTC explains there are two kinds of established business relationships.
The relationship can be based on the consumer’s purchase, rental, or lease of the company’s goods or services, within 18 months prior to a telemarketing call. The 18-month period runs from the date of the last payment, transaction, or shipment between the consumer and the company.
Or the relationship can be based on a consumer’s inquiry or application regarding a company’s goods or services and exists for 3 months starting from the date the consumer makes the inquiry or application.
This “established business relationship” exemption is also covered under TCPA(b)(2)(G).
For more information on the National Do Not Call Registry check out the FTC’s website.
What to do Before Suing a Telemarketer in Small Claims Court for TCPA Violations
Register Your Phone Number on the National Do Not Call Registry
Registering your phone number to the National Do Not Call registry is a straightforward process. Here are the steps to register your phone number to the National Do Not Call Registry:
Go to the Federal Trade Commission’s national do not call registry sign-up page linked here.
Next, click on the orange “Register Here” button, if you think you may have registered at one point you can click the blue “Verify Here” button.
After pressing “Register Here”, you can enter as many as 3 phone numbers per email to be added to the registry. Fill out the information and click “Submit”.
You will be prompted to confirm the information, if everything is correct click “Register”, and if you need to make a change click “Change”.
The next step is to go to the email you provided and confirm your information by pressing on the link provided. Once you click register, you will have 72 hours to confirm the registration through your email.
Find the Telemarketer’s Contact Information
Although it is mandated under the TCPA that telemarketers provide their information such as their name, the name of the company they are calling for, and the telephone number or address that can be used to contact them again, it can sometimes be hard to get this information. This is particularly true for telemarketers that are knowingly violating the TCPA violations, as they will want to avoid being prosecuted.
However, you will need this information if you wish to file a government complaint or small claims lawsuit against the telemarketer so here are some suggestions for finding a telemarketer's information.
The best way to collect contact information from a telemarketer is to be cooperative with the telemarketer and make them think that you intend to purchase whatever they are selling. By seeming like an interested consumer, the telemarketer may let their guard down and reveal to you all the information you need to sue them in small claims court.
The telemarketer may refuse to give you their contact information, but they may also call again in the future. Try the same technique and add the first call as a violation of the Telephone Consumer Protection Act and hold them liable for an additional $500 ($1,500 if you explicitly tell them they need to provide this information under the TCPA and they refuse to give it to you).
You can also ask the telemarketer to email you with more information about their company. Again here you want to seem like an interested customer who just wants to know more about the company’s services.
Collect Evidence of Violations by the Telemarketer
Collecting evidence of these violations for your TCPA lawsuit is pivotal as you need to prove at the small claims hearing that the telemarketer you are suing has violated the TCPA.
Here are some examples of the type of evidence you can collect for your TCPA lawsuit:
Call logs that demonstrate the time, date, and caller ID of the telemarketing call.
Screenshots of text messages between you and the telemarketer.
Recordings of calls between you and the telemarketer.*
*Make sure your state allows you to record telephone calls.
Research your state's recording laws to make sure you are acting legally while collecting evidence for your case. You will need to check if your state has “one-party” or “all-party consent” laws. The difference between these two types of laws is in the name:
If you live in a state that requires all-party consent, all attendees on the call must be notified the call is being recorded and consent to the recording. For example, you are on a call with a telemarketer even though your number is on the National Do Not Call Registry. If you live in an all-party consent state you will need to let the telemarketer know you want to record the call and they have to consent.
If your state only requires one-party consent, it will be okay to record a call as long as one of the attendees on the call gives their consent. For example, you are on a call with a telemarketer who has violated the TCPA and you want to record the call. If you live in a one-party consent state you can record the call because as an attendee you are giving your own consent by recording the call.
Most states are one-party consent states. For example, New York requires that only one party in a conversation consent to a recording of that conversation. N.Y. Penal Law sec. 250.00-250.05. However, a handful of states, like California require all parties to consent to a telephone recording. California Code PEN sec. 632. So make sure to check with your state's laws or codes before recording any conversations with telemarketers.
Send a Demand Letter to the Telemarketer
A demand letter is a letter outlining a set of requests that you would like the other party to fulfill. For example, if you are writing a demand letter to a telemarketer you would want to include the violations under state law and the TCPA they have committed and a statement stating you intend to sue for those violations if you do not reach a settlement out of court. A well-crafted TCPA or robocall demand letter may even lead to a settlement.
Here are three reasons why you should send a demand letter prior to taking legal action:
Depending on what state you live in you may be required to demand payment before filing a lawsuit. For example, in California, this is one of the requirements to file a lawsuit. Sending a demand letter is an effective way to demand payment and fulfill this requirement.
When you send a demand letter you are taken more seriously by the other party.
You will also be able to include a copy of your demand letter as part of your evidence to show the judge that you gave the other party an opportunity to resolve the dispute before escalating it to small claims court.
Learn more about Robocall Demand Letters.
Consider Reporting the Telemarketer to the FCC
The Federal Communications Commission (FCC) is a federal organization that regulates interstate and international communications by radio, television, wire, satellite, and cable. The FCC is responsible for protecting you against telemarketers that violate the TCPA. The FCC also protects consumers and allows consumers to file a complaint with them over illegal robocalls or texts.
Here are the steps to follow to report spam texts and calls to the FCC:
On the FCC website, you will find a “For Consumers” tab, under this tab, you will find the Consumer Complaint Center.
In the Consumer Complaint Center, consumers can file various types of complaints.
In the Consumer Complaint Center, locate the “file an unwanted call complaint” button. You will then be redirected to this link here where you can file your complaint.
Steps for Suing a Telemarketer in Small Claims Court
If a telemarketer or spam caller has explicitly violated any terms under the TCPA and ignored your demand letter you may now consider suing them in small claims court. Small claims courts are an efficient and affordable way for consumers to take action against telemarketers who continue to illegally harass them. Below we have covered the basics of how to sue a telemarketer.
Here are the 4 steps to sue a telemarketer or spam caller in small claims court:
Prepare the lawsuit
File the lawsuit
Serve the lawsuit
Prepare for the hearing
Prepare Your Lawsuit
To prepare for your lawsuit make sure you fill out the correct small claims forms from the courthouse you intend to file in.
You will need the telemarketer’s information to file the lawsuit. Remember to use the strategies discussed in this article if the telemarketer or spam caller is not forthcoming with their name, and contact information.
File Your Lawsuit
Once you prepare all the required information and forms you will need to file your small claims lawsuit against a telemarketer in court.
Most small claims courts have the following options for filing the lawsuit:
You may be able to file in person at the courthouse.
You may be able to file by mail.
You may be able to file online.
Unfortunately, online filing is not as common as in-person or by mail. This could be because the court either doesn't have the technology to do so or the online system they use is not user-friendly. However, PeopleClerk can help you file your small claims lawsuit without leaving your home!
Serve Your Lawsuit
Once you file your claim with the small claims court, the next step is to notify the telemarketer that they have been sued (this is called “serving”).
Most small claims courts have the following options for serving:
The Court Clerk may be able to serve by mailing a copy of the lawsuit to the telemarketer.
The sheriff may be able to physically deliver the lawsuit to the telemarketer.
A process server is a licensed individual who serves legal documents.
You may have a neutral friend or family member who can deliver the lawsuit to the telemarketer.
How to Prepare for Your Small Claims Hearing Against a Telemarketer
To prepare for your small claims court hearing:
Research the law. If you are claiming violations under the TCPA you should look through the act to make sure you are correctly stating the law. You should also research any state-specific protections you are claiming. At this stage, you can choose to consult an attorney if you would like.
Prepare your evidence. Make sure to collect and organize all potential evidence that can be used to support your claim; it is your responsibility to prove to the judge why and how much the telemarketer owes you. For example, if you are suing because a telemarketer is sending you unsolicited text messages make sure to include the unsolicited text messages as part of your evidence.
Prepare what you will say. The judge will first ask you why you are suing the telemarketer. The judge will then ask the telemarketer their side of the story. You will need to be prepared to explain each and every TCPA provision the telemarketer has violated.
Bring multiple copies of your evidence. You should bring at least three copies of your evidence. One copy for you, one copy for the judge, and one copy for the telemarketer.
People Clerk can help you organize your evidence for your small claims hearing.
We wrote a whole article about the California small claims process and NYC small claims process that can help you file your lawsuit against a telemarketer.
Legal Educator @ People Clerk. Claudia holds a J.D. degree and is a certified mediator in New York and Florida. She has participated in dozens of small claims mediations in New York City courts.