to download a copy of the Adobe® Reader® if you don't already have one.Massachusetts and federal laws protect consumers from overly aggressive telemarketers. This page summarizes these laws and the remedies that consumers can pursue when the laws are broken.
This page contains information about telemarketing annoyance, under these headings:
| The information on this page is not intended or offered
as legal advice. I've prepared this summary for informational purposes
only, and as a collection of pointers to other locations on the web where you can learn
more. The fact that I've posted this information does not create an
attorney-client relationship between you and me. It would be unwise to to
act, or to fail to act, on this information. Instead, seek qualified legal
counsel from an attorney licensed to practice in your own state. Since I
don't have any knowledge about the facts of your particular case, I can't
give you legal advice here, and I don't hold myself out as doing
so.
Contents Copyright © 2003 by Walter Oney. All rights reserved. Last updated September 6, 2003. |
Unless you do something, telemarketers can place live calls to your residence between 8:00 a.m. and 8:00 p.m.
You can put your residential and cell phone numbers on the national do-not-call list. Within three months, most telemarketing calls should cease.
There is also a Massachusetts statewide do-not-call list, but it applies only to callers doing business in Massachusetts. The national list applies to telemarketers everywhere in the U.S.
You can request that a particular company put you on its company-specific do-not-call list.
It is against the law for a company to call you if you're on their company-specific do-not-call list or on the national do-not-call list. It's against the law for a Massachusetts telemarketer to call you if you're on the statewide do-not-call list.
It's against the law for someone to use an automatic telephone dialing system to call your cell phone, because you must pay for the call.
It's against the law for someone to call you with a recorded commercial message without your prior consent.
There are many confusing exemptions from these rules that you can read about in detail later on this page.
Most of the law and rules about telemarketing calls are contained in the (federal) Telephone Consumer Protection Act of 1991 (the TCPA), 47 U.S.C. § 227, and in regulations adopted by the Federal Communications Commission (FCC) to implement the TCPA, 47 C.F.R. § 64.1200. Finding the text of federal regulations online isn't as easy it should be. You can try entering "47CFR64.1200" as a search term at http://www.access.gpo.gov/nara/cfr/. I think it's probably easier to just read the FCC's Report and Order from June 26, 2003, which contains (at the very end) the rule effective October 1, 2003. This link will take you to the FCC's web site, where you can read this interesting document.
Additional rules about telemarketing were adopted by the Federal Trade Commission (FTC) on January 29, 2003. They are codified as 16 C.F.R. Part 310. Visit http://www.ftc.gov/bcp/rulemaking/tsr/index.html to read the rule and other information published by the FTC about the Telemarketing Sales Rule (TSR).
The Massachusetts Telemarketing Solicitation law is G.L. c. 159C (that's how lawyers cite chapters of the Massachusetts General Laws). Click here to visit the official Massachusetts web site in order to read this statute. Click here to read the regulations issued by the Office of Consumer Affairs and Business Regulation under this law. Click here to read the OCA's summary of the do-not-call law. Massachusetts has also created statutory rules about automatic phone dialing equipment and about required disclosures in telemarketing calls that you can find at G.L. c. 159 §§ 19B-19E.
Some of these documents are in PDF format. You can follow this link
to download a copy of the Adobe® Reader® if you don't already have one.
The TCPA prohibits the use of automatic telephone dialing systems to make calls to certain classes of telephone. The exact statutory prohibition is this one:
It shall be unlawful for any person within the United States . . . to make a call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice
(i) to any emergency telephone line (including any "911" line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency);
(ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.
47 U.S.C. § 227(b)(1)(A).
The term "automatic telephone dialing system" is defined as "equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1). The FCC recently concluded that so-called "predictive dialers" are included within this definition. In re Rules and Regulations Implementing the [TCPA], Report and Order ¶ 133 (FCC 03-153, June 26, 2003) (hereinafter cited as FCC 2003 Order).1 Predictive dialers combine software with automatic dialing technology to match up a sales representative with a consumer just as the phone is being answered. When these systems fail, they result in hang-ups that can disturb and mislead the called party. For this reason, telemarketers are now required to let the phone ring at least 15 seconds or four times, and they must connect a sales person within two seconds after the called party answers at least 97% of the time. 16 C.F.R. §§ 310.4(b)(4)(ii), (b)(1)(v) & (b)(4) ; 47 C.F.R §§ 64.1200(a)(5) & (a)(6).
The FCC clarified some time ago that the reference to an "elderly home" means an institutional setting, and not just a home where an elderly person happens to reside. In re Rules and Regulations Implementing the [TCPA], Report and Order ¶ 42 (FCC 92-443, September 17, 1992) (hereinafter cited as FCC 1992 Order). It also clarified that the prohibition against automatic calls to wireless numbers applies only when the subscriber would pay for the call. Id. ¶ 45.
Additionally, the TCPA forbids someone "to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously." 47 U.S.C. § 227(b)(1)(D).
The TCPA provides the following private right of action:
A person or entity may, if otherwise permitted by the laws or rules of court or 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.
47 U.S.C. § 227(b)(3).
This is the same remedy, by the way, for junk fax violations, as to which consult this other page on this web site.
This law obviously has teeth, since it provides for $500 damages for each violation without proof that the sender even knew it was violating the law. If they did know they were violating the law, the court can award up to $1,500 for each violation.
Congress intended this law to have teeth, too. It wanted to make it easy as possible for ordinary consumers to sue in small claims court to enforce the law:
The [Act] contains a private right-of-action provision that will make it easier for consumers to recover damages from receiving these computerized calls. The provision would allow consumers to bring in an action in State court against any entity that violates the bill. The bill does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action, as this is a matter for State legislators to determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court.
137 Cong. Rec. 30821 (102d Cong., 1st Sess., Nov. 7, 1991) (remarks of Sen. Hollings).
Before you run off to small claims court, though, consider the points discussed further on in this article under the heading How do I make them stop?
Since 1986, Massachusetts has had its own law relative to automatically dialed calls. Our law defines the term "automatic telephone dialing system" as "any automatic terminal equipment which is capable of storing numbers to be called or producing numbers to be called, using a random or sequential number generator, and with the ability to call such numbers, and which is capable of delivering a prerecorded message to the number called with or without manual assistance." G.L. c. 159, § 19B. Telephone carriers must maintain a registry of subscribers who don't want to receive calls from these systems. G.L. c. 159 § 19C. Such systems sold or used in the commonwealth must honor such requests. G.L. c. 159 § 19D.
The TCPA prohibits the use of prerecorded announcements in calls to the same specially protected class of telephones that are discussed in the preceding section of this article.
In addition, FCC rules prohibit the use of commercial, non-emergency prerecorded announcements in calls to residential subscribers with whom the caller does not have an established business relationship. 47 C.F.R. § 64.1200(a)(2). It's not clear whether a telemarketer is allowed to provide a prerecorded announcement when it has abandoned a predictively dialed call.
The remedy for a violation of these provisions of the TCPA is the same as the one described in the preceding section of this article.
The Massachusetts Telemarketing Solicitation law states that "[a] telephone solicitor shall not make or cause to be made an unsolicited telephonic sales call to a consumer . . . by use of a recorded message device." G.L. c. 159C, § 3(iv). The law does not define the term "Recorded Message Device". I'll discuss chapter 159C in more detail in the next section of the article, since that chapter was primarily intended to address do-not-call violations.
The federal do-not-call program kicks in on October 1, 2003. There are two legal provisions that use different wording to accomplish the same basic result. The FCC's rule, issued under authority given by Congress in the TCPA, says that "[n]o person or entity shall initiate any telephone solicitation . . . to . . . [a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry." 47 C.F.R. § 64.1200(c)(2). The FTC's rule reads this way:
It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer to engage in, or for a seller to cause a telemarketer to engage in, the following conduct: . . . Initiating any outbound telephone call to a person when . . . that person's telephone number is on the "do-not-call" registry maintained by the [FTC].
16 C.F.R. § 310.4(b)(1)(iii)(B).
The national do-not-call list applies to all telemarketing companies, even if they're calling on behalf of tax-exempt non-profit organizations, and to all for-profit organizations calling on their own behalf.
You can follow this link: http://www.ftc.gov/donotcall/ to place your residential and wireless phone numbers on this registry.
The federal rules prohibit telemarketing calls except between 8:00 a.m. and 9:00 p.m., local time. 16 C.F.R. § 310.4(c); 47 C.F.R. § 64.1200(c)(1).
The TCPA provides the following private remedy for violations of the do-not-call rules:
A person who has received more than one telephone call in any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection 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 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.
It shall be an affirmative defense in any action brought under this paragraph that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection. 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.
47 U.S.C. § 227(c)(5).
Note that this is a different remedy than the one for junk faxes, prerecorded messages, and certain automated calls. This remedy requires two or more violations by the same entity in 12 months, and it has a "reasonable procedures" defense.
The Massachusetts Telemarketing Solicitation law, chapter 159C of the General Laws, went into effect on January 1, 2003. The centerpiece of this law, and the part that got all the media attention, is this provision:
A telephone solicitor shall not make or cause to be made an unsolicited telephonic sales call to a consumer: (i) if the consumer's name and telephone number appear on the then current quarterly no sales solicitation calls listing made available by the office under section 2; (ii) to be received between the hours of 8:00 p.m. and 8:00 a.m., local time . . ..
G.L. c. 159, § 3.
The "office" referred to in this statute is the Office of Consumer Affairs and Business Regulation. You can visit https://www.madonotcall.govconnect.com/Welcome.asp to put residential phone numbers on the list.
The terms "telephone solicitor", "unsolicited telephonic sales call", and "consumer" all have very technical definitions in the statute. Since there haven't been any court cases to construe this statute, you would really need a lawyer's advice to understand exactly what is prohibited by this statute.
The Telemarketing Solicitation law provides the following private remedy:
(b) A person who has received more than 1 unsolicited telephonic sales call within a 12-month period by or on behalf of the same person or entity in violation of this chapter may: (i) bring an action to enjoin the violation; (2) bring an action to recover for actual monetary loss from such knowing violation or to receive not more than $5,000 in damages for such knowing violation, whichever is greater; or (iii) bring both such actions.
(c) In a civil proceeding resulting from a transaction involving a violation of this chapter, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall be awarded reasonable attorney's fees and costs from the nonprevailing party.
G.L. c. 159C, § 8.
The law also provides that "[i]t shall be a defense in any action or proceeding brought pursuant to this chapter that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent unsolicited telephonic sales calls in violation of this chapter." G.L. c. 159C, § 9.
Finally, the law specifically states that "[t]he remedies, duties, prohibitions and penalties provided in this chapter shall not be exclusive and shall be in addition to all other causes of action, remedies and penalties provided by law, including any applicable remedies pursuant to chapter 93A." G.L. c. 159C, § 13.
Once again, you really need competent advice from a lawyer to decide exactly who can sue, for what, and in what court.
Express consent. You can expressly consent to receive telemarketing calls from a specific company, even if you've put your phone number on the state or national do-not-call list.
Prerecorded Emergency calls. Automatically dialed or prerecorded calls made for emergency purposes are exempt from the laws that would otherwise forbid such calls. 47 C.F.R. § 64.1200(a)(2)(i). Thus, your "I've fallen and I can't get up" device (if you have one) is not illegal.
Prerecorded Noncommercial calls. Prerecorded calls made for noncommercial purposes are allowed. 47 C.F.R. § 64.1200(a)(2)(ii). These calls might include polls and surveys, political advocacy, religious speech, notifications of office or factory closings due to bad weather, etc. However, "[o]ffers for free goods or services that are part of an overall marketing campaign to sell property, goods, or services constitute 'advertising the commercial availability or quality of any property, goods, or services'" and are therefore not exempt. FCC 2003 Order ¶ 140.
Prerecorded commercial calls that don't include or introduce an unsolicited advertisement or themselves constitute a telephone solicitation are likewise allowed. 47 C.F.R. § 64.1200(a)(2)(iii). One example of such a call is one made by a radio or TV station inviting a consumer to listen to or view a broadcast. FCC 2003 Order ¶ 145.
Established business relationship. The existence of an established business relationship permits a company to place prerecorded calls to you [47 C.F.R. § 64.1200(a)(2)(iv)], as well as live calls. This is true even if you've put your number on the national do-not-call list. 47 C.F.R. § 64.1200(f)(9). The term "established business relationship" has a complex definition:
The term established business relationship means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber’s purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber’s inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.
(i) The subscriber’s seller-specific do-not-call request, as set forth in paragraph (d)(3) of [47 C.F.R. § 64.1200], terminates an established business relationship for purposes of telemarketing and telephone solicitation even if the subscriber continues to do business with the seller.
(ii) The subscriber’s established business relationship with a particular business entity does not extend to affiliated entities unless the subscriber would reasonably expect them to be included given the nature and type of goods or services offered by the affiliate and the identity of the affiliate.
47 C.F.R. § 64.1200(f)(3).
In particular, by asking to be placed on a company-specific do-not-call list, you can continue to do business with that company, and they can't call you any more.
Personal relationship. The existence of a "personal relationship" allows someone to call you even if your number is on the national do-not-call list. 47 C.F.R. § 64.1200(c)(2)(iii). The FCC intends this exemption to apply to "family members, friends and acquaintances." 47 C.F.R. § 64.1200(f)(11). The FCC declined, however, to adopt a rigid definition of the term "personal relationship." If you feel that someone is abusing this exemption, they probably are and might be called to account following a complaint or lawsuit. FCC 2003 Report ¶ 47.
Tax-exempt non-profit organizations are exempt from most of the telemarketing rules. 47 C.F.R. § 64.1200(a)(2)(v) (prerecorded announcements to residential subscribers); 47 C.F.R. § 64.1200(f)(9)(iii) (definition of "telephone solicitation"). There is currently an inconsistency between the FCC and FTC rules concerning whether such an organization has to honor a company-specific do-not-call request. Under the FTC rule, they do. Under the FCC rule, they don't. Expect this inconsistency to be harmonized at some point in the future. There is likewise an inconsistency concerning whether a for-profit telemarketer must honor the national do-not-call list when calling on behalf of tax-exempt non-profit organization. Again, the FTC says yes, but the FCC says no.
Debt collection calls are not telemarketing solicitations and are therefore not covered by these laws. See 68 Cong. Rec. 4664 n. 120 (Jan. 29, 2003) (discussion by FTC of debt collection calls). Such calls remain subject to the Fair Debt Collections Act, however.
Massachusetts law has many exemptions that are worded differently than the corresponding federal laws. Given that the TCPA preempts less restrictive state laws under the Supremacy Clause of the U.S. Constitution [see 47 U.S.C. § 227(e)], it's frankly anybody's guess how many of these exemptions are actually valid. It will take court cases and further administrative rulemaking to decide.
Your first and best line of defense is the national do-not-call registry. Follow this link: http://www.ftc.gov/donotcall/ to place your residential and wireless phone numbers on this registry. Within three months, most telemarketing calls should stop. If they don't visit http://www.ftc.gov/ftc/consumer.htm and click on the button labeled "File a Complaint". Signing up separately on the Massachusetts do-not-call list is not necessary, because Massachusetts telemarketers must obtain and use the Massachusetts portion of the national list.
Companies are required to honor a company-specific request not to be called. When you get a call from a live telemarketer, simply ask to be placed on that company's do-not-call list.
Purchase the caller-id service from your telephone company and buy a display box. Beginning on January 29, 2004, telemarketers must transmit their caller identification. The caller-id will help you prescreen calls. You may also be able to ask your phone company to automatically block calls that don't include caller-id.
You can also try complaining to the Massachusetts Attorney General. Download the complaint form from http://www.ago.state.ma.us/con_pro/dncform.pdf.
You can contact the telemarketer directly. If the advertiser maintains a place of business or keeps assets in the commonwealth, you might do this in the form of a "93A Demand Letter" so as to preserve as many rights as possible. Click here to download a sample demand letter that you can easily cut and paste into your own word processing software. Send this letter via Certified Mail with a Return Receipt Requested so that you can later prove when the letter was received, and by whom. You should also check out http://www.state.ma.us/consumer/Pubs/demand.htm, which has more information about 93A demand letters.
Finally, you can sue. Even though the TCPA is a federal statute, suits under it must be brought in state courts. E.g., International Science & Technology Institute, Inc. v. Inacom Communications, Inc., 106 F.3d 1146, 1155 (4th Cir. 1997). Suits under the Massachusetts Telemarketing Solicitation law would normally be filed in a state district court. In counties that still use the archaic two-trial system, a suit seeking injunctive relief would have to be filed in the Superior Court instead.
Small claims court ought be a great place to sue under the TCPA, since the $1,500 damages available under the TCPA are well within the $2,000 limit for small claims cases. In fact, Congress specifically intended that individuals and small business owners would use small claims court to enforce this law. Unfortunately, anecdotal evidence suggests that TCPA complaints may fail in Massachusetts small claims courts for reasons that have nothing to do with the merits of the case.2 Click here for more information about small claims in Massachusetts. Your small claims complaint must specifically mention the TCPA, including the citation to the U.S. Code (see above). You should bring a printed copy of the statute with you to the hearing in case the clerk-magistrate is not familiar with the law.
Small claims court might not the best option when the advertiser is out of state, or when you've received two or more phone calls in a 12-month period. In that sort of case, I strongly advise you to contact an attorney. The attorney can advise you about possible remedies and strategies for pursuing them. There are many legal and procedural issues involved in a telemarketing lawsuit. You probably won't be able to successfully handle the matter on your own. Bear in mind that some of the legal theories also allow recovery of attorneys' fees.
1 -- The easiest way to find FCC documents is online. http://www.fcc.gov/cgb/donotcall/ has a directory to all the Reports and Orders related to the TCPA.
2 -- Hostility towards TCPA suits, which are sometimes regarded as "nuisance" suits despite the severity of the problem they address, and ignorance of the law may be factors. Small claims cases against out-of-state defendants can founder on the notice requirements for exercising long-arm jurisdiction.