About to head to court for TCPA violations

[Dolemite_73]

Been a long time since I have had to fight it out in court, but it is time. Here is the story. I received (4) auto-dialed, pre-recorded telemarketing calls on my phone. They left messages on my voicemail (which I have saved). Finding who made these calls was a pain in the flowers, but I managed to find out who. In these calls the entity did not provide:

 

1. Their business name in the beginning of the phone call

2. The number of the company outside of the auto-dialer number.

 

FCC guidelines state:

"At the beginning of the message, all allowable prerecorded messages must state the identity of the business, individual, or other entity that is responsible for initiating the call. During or after the message, the caller must give the telephone number (other than that of the automatic dialing system or prerecorded message player that placed the call) of the entity responsible for the call."

 

None of these calls meet these criteria. I also maintain that his company and mine had no established business relationship. He claims I went to a website of his and provided my info (I dispute that). Here is our email exchanges:

 

My initial email:

Dear Lawbreaking blue shirt,

 

Be advised that this email constitutes my intent to sue your company in North Carolina State Court for Violations of the Telephone Consumer Protection Act of 1991 (TCPA) and Chapter 75, Article 4 of the North Carolina Monopolies, Trusts and Consumer Protection statute. On 4 separate occasion between December 2008 and January 2009, I received phone calls from XXXXXXXXXXX, a number which your company used to call my phone, that violates the above acts. Each of these calls have been logged and recorded.

 

I have prima facie evidence of these calls and will not hesitate to pursue action in State Court if need be. You have until 8 EST on January 27, 2009 to respond to these allegations. Failure to respond will cause me to pursue potentially costly legal action against your corporation. I can be contacted at this email address. If I have not contacted the correct individual who handles these matters, please ensure that you forward this email to that individual.

 

Hugs and Kisses,

 

Dolemite_73

 

His response:

This is not applicable when you provide permission to be called, by providing information on a website and agreeing to the privacy policy, which states you may be contacted for same or like kind offers. We provide an easy press 9 DNC function and see you chose not to use this for some reason. Never the less we manually added your number to our DNC and you will not receive any more calls. If you choose to pursue this through legal means as stated below, then we can't prevent you from doing so, but again we have logs of someone entering your Telephone number into one of our sites and thus is the reason your Telephone number was called. Again by doing so, the TCPA rules no longer apply, due to prior business relationship.

Let me know of any other questions,

Respectfully,

 

Lawbreaking blue shirt

 

My next response:

Lawbreaking blue shirt,

 

Be advised that I categorically deny ever providing my information to you or any other entity. We had no expressed prior business relationship. Can you prove your claims? The TCPA and the FCC is quite clear on the fact that the calling party must be able to prove that an expressed business relationship existed prior to the calls being made.

 

Also, there is specific things within a pre-recorded message that has to be there for the pre-recorded message to be legal. These calls did not have that required information. Expressed business relationship or not, these pre-recorded messages were illegal. My rights have been violated and I will not stand for it.

 

The FCC states that pre-recorded messages must meet the following requirements:

 

"At the beginning of the message, all allowable prerecorded messages must state the identity of the business, individual, or other entity that is responsible for initiating the call. During or after the message, the caller must give the telephone number (other than that of the automatic dialing system or prerecorded message player that placed the call) of the entity responsible for the call."

 

I have a recording of each of the messages and none of them meet these requirements, hence, they are illegal. We need to come to some agreement here. Failing an agreement, I plan to sue you in state court here in North Carolina for violating my rights.

 

I did not hear from the rat blue shirt so I sent him the following email with a draft complaint attached:

 

Attached is the complaint that will be filed in the very near future against you and your company for TCPA violations and violations of North Carolina state statutes. Your silence on this issue is very disheartening. This situation will not just go away and ignoring it will result in a default judgment against you and your company. As it stands right now, I have over $17,000 ($6,000 in TCPA damages...pressing for willful violations and $11,500 in state damages....NC state law is killer on these kinds of calls) in statutory damages against you and your company. This is not counting any punitive damages I will press for as well. You did not have prior expressed permission to call my number, we had no expressed business relationship and your calls did not meet the strict FCC guidelines. I will forego filing this suit in court on the following conditions:

 

1. My name and number is permanently purged from any call list.

2. You formally apologize to me for violating the TCPA and North Carolina state law

3. You pay me $10,000 in damages for your violation of the TCPA and NC Statute 75-104.

 

Number 3 is negotiable, but only until Friday, February 6, 2009. After that date, settlement negotiations will cease and suit will be brought against you and your company here in North Carolina. If you think this is a bluff or that you can continue to ignore it, I assure you, it is not.

 

Well that got his attention because I get this from him:

 

I replied already, so not sure what you mean by silence? Somebody provided your telephone number into our site, which we have a record of, below:

Dolemite_73

Gennadiy Kofman @ 12:16 (Who the heck is this?!?!?!)

XXXXXXXXXX RD

12:16

XXXXXXX NC 2XXXX

came to www.onyxvisa.com <http://www.onyxvisa.com/> (not live anymore) on 27-AUG-08

 

Are you saying this isn't your address? Did someone else at your address provide your phone number on our site? We don't just make up information, how could we do that, someone had to visit the site/s and provide it. Your other email claiming the msg didn't follow guidelines is something we need to listen to, do you have that msg/recording you can email?

 

He is trying to BS me, so I send him this:

 

I am saying I personally did not provide your company anything. Whether or not some other entity provided your company with my information is immaterial to the fact that:

 

1. I did not provide you or your company and prior permission for you to call me.

2. I have never been to that site you listed as obtaining my information from. I have never applied for an Onyx Visa.

3. Your company and I had no expressed business relationship. You have nothing with my signature and nothing with my affirmation verifying we had a relationship.

4. Your phone calls did not meet established FCC guidelines namely "At the beginning of the message, all allowable prerecorded messages must state the identity of the business, individual, or other entity that is responsible for initiating the call. During or after the message, the caller must give the telephone number (other than that of the automatic dialing system or prerecorded message player that placed the call) of the entity responsible for the call." These guidelines can be found here: http://www.fcc.gov/cgb/consumerfacts/1088C-R.pdf

 

Even if you can prove an established business relationship (and you can't), these calls still violated the Act because you did not identify your business and you did not provide a number (other than the 213 number, which was the auto-dialer) of your company. Either way, I have prima facie evidence.

 

These voicemails are on my voicemail. If providing them to you will help facilitate a settlement between your company and I, then I will gladly provide them. Are your intentions settling this matter or are your intentions to litigate? My deadline for next Friday still stands.

 

He wants to play hardball, so he sends me this:

 

we never succumb to threats and if someone else provided your telephone number, or it was a newly acquired number, etc, we have no control over that. Our records are clear that someone came to our domain, provided permission and thus stimulated a call. So if you choose to pursue in court, then so be it. We will only now communicate with your Attorney.

 

Very well. If that is how he wants it, that is how he is going to get it. He is in California, by the way. Here is my final email to him:

 

Very well. Be prepared to prove your claims. I definitely can prove mine. The messages are all I need to prove you broke the law. You may not supposedly have control over how you attained my number, but you do have control over the message you used to illegally call me. Be prepared to make a trip to North Carolina real soon. See you in court.

 

So there you have it. Back in the jaws of the beast I go. IMO, this crap is cut and dried but we shall see. Will keep you posted.

[centex]

Have you provided him with a copy of the recordings as was requested? If not, then you need to expect some raking over the coals to occur from the judge as this WILL be portrayed as an abuse of process...

[pryan67]

that will be interesting to see....too bad you're not still in Illinois...I'd love to see it *LOL*

 

 

they won't show of course (unless...do they have a registered agent?)

[Dolemite_73]

Have you provided him with a copy of the recordings as was requested? If not, then you need to expect some raking over the coals to occur from the judge as this WILL be portrayed as an abuse of process...

Read my email. I offered them. If he wants them, then he can have them, but shouldn't he know what is on his pre-recorded messages? it is his company by the way. I would gladly provide them if they lead to a resolution. But he stated he does not succumb to threats. So it is his choice not mine. I am putting the messages in an email-able format this weekend. Maybe, as a gesture of goodwill, I will forward them to his attorney next week. We'll see.

[Dolemite_73]

that will be interesting to see....too bad you're not still in Illinois...I'd love to see it *LOL*

 

 

they won't show of course (unless...do they have a registered agent?)

No registered agent in NC. But he can be served CMRRR as long as I file the green cards with the court.

[jack1212]

Im in NC.

 

I Had never heard of the TCPA until now.

 

This is good, im watching this one.

 

jack

[Dolemite_73]

Im in NC.

 

I Had never heard of the TCPA until now.

 

This is good, im watching this one.

 

jack

The TCPA is a federal law but only enforceable in state courts. Look at NC General Statute 75-100. Lots of goodies in there......

[centex]

Have you provided him with a copy of the recordings as was requested? If not, then you need to expect some raking over the coals to occur from the judge as this WILL be portrayed as an abuse of process...

Read my email. I offered them. If he wants them, then he can have them, but shouldn't he know what is on his pre-recorded messages? it is his company by the way. I would gladly provide them if they lead to a resolution. But he stated he does not succumb to threats. So it is his choice not mine. I am putting the messages in an email-able format this weekend. Maybe, as a gesture of goodwill, I will forward them to his attorney next week. We'll see.

 

You offered them only upon a showing of his intentions...that conditioned offer is what will get you raked over the coals because it demonstrates to the Court that you had no intent of seeking a non-litigious resolution to the matter.

 

As to the claim that it is his company and he ought to know, who is to say that someone down the line didn't deviate from the company script? It's been known to happen, employees doing something other than they were supposed to (look at the FNMA indictment on the guy who was going to put a virus in the server network)...

 

You really don't want to have the same tag put on you as the Courts did to the salamander in California who kept filing all the bullcrap ADA claims...and to a court, that is precisely the same sort of path you are giving the appearance to be heading down by not accomodating a simple request for the recordings...

[FixItAll]

Have you provided him with a copy of the recordings as was requested? If not, then you need to expect some raking over the coals to occur from the judge as this WILL be portrayed as an abuse of process...

 

 

Really? Prior to discovery he has to provide copies of the recordings? I can't imagine a judge finding that to be a crucial point.

[centex]

Have you provided him with a copy of the recordings as was requested? If not, then you need to expect some raking over the coals to occur from the judge as this WILL be portrayed as an abuse of process...

 

 

Really? Prior to discovery he has to provide copies of the recordings? I can't imagine a judge finding that to be a crucial point.

 

It goes to good-faith attempt to resolve the issue prior to litigation instead of something clogging the docket...the law expects the parties to make such efforts. And in this case, the other party has indicated a desire to hear the recording. Not an unreasonable request.

[Dolemite_73]

Have you provided him with a copy of the recordings as was requested? If not, then you need to expect some raking over the coals to occur from the judge as this WILL be portrayed as an abuse of process...

 

 

Really? Prior to discovery he has to provide copies of the recordings? I can't imagine a judge finding that to be a crucial point.

You think? Sure, I will provide my evidence to the defense prior to discovery....and maybe he should provide his calling list to find other consumers he has done this too (and they number in the thousands...trust). He knows exactly what his recordings says. There is a back story here that I dont want to touch on quite yet, but just know that this whole telemarketing "firm" is shady as hell and once the FCC finds out (and they will), my measly lawsuit will be a drop in the bucket. I am not tipping my hold card until he decides to to fold. He wants to call my bluff? Fine. North Carolina is lovely this time of year.

[Dolemite_73]

Have you provided him with a copy of the recordings as was requested? If not, then you need to expect some raking over the coals to occur from the judge as this WILL be portrayed as an abuse of process...

 

 

Really? Prior to discovery he has to provide copies of the recordings? I can't imagine a judge finding that to be a crucial point.

 

It goes to good-faith attempt to resolve the issue prior to litigation instead of something clogging the docket...the law expects the parties to make such efforts. And in this case, the other party has indicated a desire to hear the recording. Not an unreasonable request.

I am acting in good faith. I have him dead to rights and he knows it. If he did not state that "he does not succumb to threats" then I would have happily provided the messages. But once he decided that litigation was the route he had to take, then that is the route I will take.

[pryan67]

IF Dolemite hadn't offered the recordings (which he DID do...but, as a reasonable person, he wasn't about to just send them before they're requested), then I think centex would have a point...if he had refused to send copies, then perhaps a judge would wonder why...

 

 

 

but as for someone not following the company script....that wouldn't matter...since the company IS responsible for making sure the laws are followed....

 

 

what company is regulated primarily by XYZ law, but no one in the company follows up to make sure that the law isn't followed?

 

 

I mean seriously...think about it...what would happen if a company could claim "oops, we didn't know that we weren't following the law...we told Joe to make a recording that followed the law...we just figured he'd do it...we didn't know we actually had to REALLY follow the law"

 

 

imagine how fun that would be though...

 

McDonalds could serve rancid beef

 

walmart could hire people at 2 bucks an hour

 

car dealers could sell used cars as new

 

 

after all, they can't be bothered to verify that the laws are being followed now, can they?

[EzInKy]

Have you read this FTC slaps Do Not Call Violators with $1.2 Million in penalties?

 

According to the FTC's complaint, the Westgate defendants bought phone numbers from an Internet-based lead generator that collected contact information in connection with offering an array of free and discounted products to consumers on its Brandarama.com Web site. The Westgate defendants purchased the telephone numbers of consumers who answered travel-related survey questions, such as "Select your favorite travel destination," on Brandarama.com's online form, the FTC stated. Many of these telephone numbers were on the DNC Registry. The Brandarama.com Web site did not refer to Westgate or notify consumers that they would receive telemarketing calls, except in language buried in its "terms and conditions" or "privacy policy" pages, the FTC stated.

[Dolemite_73]

IF Dolemite hadn't offered the recordings (which he DID do...but, as a reasonable person, he wasn't about to just send them before they're requested), then I think centex would have a point...if he had refused to send copies, then perhaps a judge would wonder why...

 

 

 

but as for someone not following the company script....that wouldn't matter...since the company IS responsible for making sure the laws are followed....

 

 

what company is regulated primarily by XYZ law, but no one in the company follows up to make sure that the law isn't followed?

 

 

I mean seriously...think about it...what would happen if a company could claim "oops, we didn't know that we weren't following the law...we told Joe to make a recording that followed the law...we just figured he'd do it...we didn't know we actually had to REALLY follow the law"

 

 

imagine how fun that would be though...

 

McDonalds could serve rancid beef

 

walmart could hire people at 2 bucks an hour

 

car dealers could sell used cars as new

 

 

after all, they can't be bothered to verify that the laws are being followed now, can they?

My thoughts exactly. They are telemarketers. Know the laws and follow them. If you can't follow them, then a litigious blue shirt like me will make you pay. Plain and simple.

[radi8]

IMO there can't be any "good faith" resolution since the defendant cannot undo the phone calls. It's just a matter of statutory punishment now.

[Dolemite_73]

IMO there can't be any "good faith" resolution since the defendant cannot undo the phone calls. It's just a matter of statutory punishment now.

Bingo. Saying "I'm sorry" does not unring the bell after it is rung, now does it? Like the judge in my last case said, "Once the horse is out of the barn, it is kind of tough to put it back in, right?"

Edited January 30, 2009 by Dolemite_73

[centex]

IMO there can't be any "good faith" resolution since the defendant cannot undo the phone calls. It's just a matter of statutory punishment now.

 

And dolemite was harmed HOW? It is important to remember what the Courts did to the salamander in California on the ADA nonsense...the Courts are letting it be known that they aren't going to simply be a conduit to litigation where there is no good-faith attempt to resolve the matter. There is a reason you see federal courts (state courts as well) taking umbrage with what they describe as 'cottage industries' of pro se litigation where no real harm has occurred...

 

This is the sort of thing that gets in the way of having legislators increase penalties for egregious conduct...

[radi8]

IMO there can't be any "good faith" resolution since the defendant cannot undo the phone calls. It's just a matter of statutory punishment now.

 

And dolemite was harmed HOW?

 

TCPA provides for either statutory or actual damages whichever is greater, no actual damage need be shown. The court may also triple the damages for each violation if it finds that the defendant willingly or knowingly committed the violation.

[pryan67]

IMO there can't be any "good faith" resolution since the defendant cannot undo the phone calls. It's just a matter of statutory punishment now.

 

And dolemite was harmed HOW? It is important to remember what the Courts did to the salamander in California on the ADA nonsense...the Courts are letting it be known that they aren't going to simply be a conduit to litigation where there is no good-faith attempt to resolve the matter. There is a reason you see federal courts (state courts as well) taking umbrage with what they describe as 'cottage industries' of pro se litigation where no real harm has occurred...

 

This is the sort of thing that gets in the way of having legislators increase penalties for egregious conduct...

 

 

and calling THOUSANDS of people in violation of the law (according to dolemite....and that's believable....unless you think that they have a different automated calling system for each person?) isn't egregious

 

 

TCPA doesn't say the consumer has to be harmed....it's statutory penalties...

 

 

now, if he were going for ACTUAL damages...then sure, he doesn't have much...fortunately for him, he doesn't need statutory damages

 

 

 

 

it WOULD be nice though if that WAS how civil suits worked (you need only actual damages, and you couldn't recover more than that)

 

imagine...NCO suing people for the 15 bucks they paid for the 1500 dollar "debt"

[Dolemite_73]

IMO there can't be any "good faith" resolution since the defendant cannot undo the phone calls. It's just a matter of statutory punishment now.

 

And dolemite was harmed HOW? It is important to remember what the Courts did to the salamander in California on the ADA nonsense...the Courts are letting it be known that they aren't going to simply be a conduit to litigation where there is no good-faith attempt to resolve the matter. There is a reason you see federal courts (state courts as well) taking umbrage with what they describe as 'cottage industries' of pro se litigation where no real harm has occurred...

 

This is the sort of thing that gets in the way of having legislators increase penalties for egregious conduct...

So how else are consumers suppose to ensure our rights are not violated? The FTC? Yeah right. The BBB? Sure....ok. The State AG's? They are too worried about getting re-elected. The FCC? Sure...5 years from now. It is up to us to defend our rights. The TCPA, FCRA and FDCPA are meant to be enforced by consumers.

 

I have tried to settle this in good faith. If he had stated "Before we can discuss resolving this matter, I would like to listen to these messages to see if they failed to meet FCC guidelines." That sounds a lot better then him saying screw you and "we do not succumb to threats." Good faith is a two-way street.

[Dolemite_73]

IMO there can't be any "good faith" resolution since the defendant cannot undo the phone calls. It's just a matter of statutory punishment now.

 

And dolemite was harmed HOW? It is important to remember what the Courts did to the salamander in California on the ADA nonsense...the Courts are letting it be known that they aren't going to simply be a conduit to litigation where there is no good-faith attempt to resolve the matter. There is a reason you see federal courts (state courts as well) taking umbrage with what they describe as 'cottage industries' of pro se litigation where no real harm has occurred...

 

This is the sort of thing that gets in the way of having legislators increase penalties for egregious conduct...

 

 

and calling THOUSANDS of people in violation of the law (according to dolemite....and that's believable....unless you think that they have a different automated calling system for each person?) isn't egregious

 

 

TCPA doesn't say the consumer has to be harmed....it's statutory penalties...

 

 

now, if he were going for ACTUAL damages...then sure, he doesn't have much...fortunately for him, he doesn't need statutory damages

 

 

 

 

it WOULD be nice though if that WAS how civil suits worked (you need only actual damages, and you couldn't recover more than that)

 

imagine...NCO suing people for the 15 bucks they paid for the 1500 dollar "debt"

Google 213-416-2888 just to see how many people have complained on consumer sites about getting calls from this company.

[centex]

IMO there can't be any "good faith" resolution since the defendant cannot undo the phone calls. It's just a matter of statutory punishment now.

 

And dolemite was harmed HOW?

 

TCPA provides for either statutory or actual damages whichever is greater, no actual damage need be shown. The court may also triple the damages for each violation if it finds that the defendant willingly or knowingly committed the violation.

 

I understand the whole provision...but I also understand what the Courts are looking at. It is the same thing the legislators are looking at and is a big part of why reluctance exists to increase the available awards outlined in the statutes...

[centex]

There is some interesting reading in Charvat...

[Dolemite_73]

IMO there can't be any "good faith" resolution since the defendant cannot undo the phone calls. It's just a matter of statutory punishment now.

 

And dolemite was harmed HOW?

 

TCPA provides for either statutory or actual damages whichever is greater, no actual damage need be shown. The court may also triple the damages for each violation if it finds that the defendant willingly or knowingly committed the violation.

 

I understand the whole provision...but I also understand what the Courts are looking at. It is the same thing the legislators are looking at and is a big part of why reluctance exists to increase the available awards outlined in the statutes...

And by keeping statutory damages low, it gives companies no incentive to be in compliance with the law. Violating is the cost of doing business to them.