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Federal Law Restricts Telemarketing and Unsolicited Fax Advertisements


Q.: My home phone number is on the do-not-call list, but I still get telemarketing calls.  Are these calls illegal?
A.:
The Federal Telephone Consumer Protection Act (TCPA) protects residential and cellular telephone customers from most unwanted telemarketing calls, such as calls you may receive from a business advertising goods or services. Assuming your number has been on the do-not-call list for three months, telemarketers who continue to make calls to your number to advertise for-profit businesses are violating the law.  In addition, most commercial advertising calls to a home or cellular phone made by a recorded voice violate the law, regardless of whether your number is on the do-not-call list. 

Q.: Are there other rules that telemarketers must follow?
A.:
The Federal Communications Commission (FCC) has added the following rules for telemarketing calls:
• Recorded-voice messages must, at the beginning of the message, identify the person or business responsible for making the call.
• Recorded-voice messages must provide a telephone number for the person or business responsible for making the call.
• No telephone solicitations may be made to residences after 9:00 p.m. or before 8:00 a.m.
• Those who make telemarketing calls to residences must maintain their own do-not-call lists, must have a written policy available on demand, and must train their employees.
• Residents can demand that a telemarketer add their number to the caller’s own do-not-call list. The caller must honor this request within a reasonable time (not more than 30 days), and for the following five years.

Q.: Are some kinds of telephone solicitations allowed?
A.:
Some calls are exempt from portions of the TCPA. One exception is for callers representing tax-exempt non-profit organizations, although some unscrupulous businesses hide behind non-profits to conceal the true business purpose of their calls. Another exception is for calls that are not ads or solicitations (for example, political calls or legitimate surveys). Other exceptions include telemarketing calls to businesses, emergency calls, non-commercial calls, and calls to people who have an established business relationship with the caller. If you are receiving unwanted calls from a business you have dealt with in the past, you can end the business relationship by demanding to be added to the company’s do-not-call list. 
 
Q.: Where can I file a complaint about illegal telemarketing calls?
A.:
You can add your home number to the federal do-not-call list, or file a complaint with the Federal Trade Commission (FTC) through www.donotcall.gov .

You can also file a complaint with the FCC at http://www.fcc.gov/cgb/complaints.html, or:
Federal Communications Commission
Consumer & Governmental Affairs Bureau
Consumer Complaints
445 12th Street, SW
Washington, D.C. 20554

The FCC occasionally issues citations or fines against violators.  States also have the authority to enforce the TCPA, but generally, governments do not have the resources to deal with the large number of violations.

Q.: Can I sue a telemarketer for violating the TCPA?
A.:
Yes.  The TCPA allows a private suit for most commercial advertising calls to a residence or cellular phone made by a recorded voice.  The plaintiff can recover a minimum of $500 damages, and the court can increase that to as much as $1,500 per violation if the caller acted willfully or knowingly. Live telemarketing calls also can result in damages up to $500 to $1,500 per violation, when more than one illegal call has been made. Not every illegal call makes a good court case, however, and often, it is difficult to even identify the caller. Contact an attorney with specific legal questions.

Q.: What about unsolicited faxes to my home or office?
A.:
The TCPA currently prohibits unsolicited advertising to fax machines. There are exceptions when the recipient has given prior permission to receive the faxes and when the fax is sent in connection with an established business relationship with the recipient.  The recipient can end a business relationship by notifying the fax sender that the recipient does not wish to receive any further faxes.

Q.: What can I do when I receive an unsolicited fax ad?
A.:
You can file a complaint with the FCC at the above address. Private suits for statutory damages are also available for unsolicited fax ads. The fax provisions of the TCPA apply to fax ads received both at homes and businesses.

Q.: Are there other rules that fax advertisers must follow?
A.:
There are also fax identification requirements that government officials can enforce.  These rules require the following information on either the first page, or in the top or bottom margin of each page:
• the date and time the fax was sent;
• the identity of the sender; and
• the telephone number of the sender’s fax machine.


2/25/2008

Law You Can use is a weekly consumer legal information column provided by the Ohio State Bar Association (OSBA).  This article was prepared by Greg Reichenbach, an attorney practicing in Mansfield.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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