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Sharon D. Lee
Federal Communications Commission
Common Carrier Bureau - Enforcement Div.
Consumer Protection Branch - Stop Code 1600A2
Washington, DC 20554
Ref: IC-96-36823
September 3, 1998
Dear Ms. Lee,
Your referenced letter of September 1, 1998 to Peter Drymalski, clarifying certain issues concerning the Telephone Consumer Protection Act of 1991, has come to my attention.
Your letter’s fourth paragraph, citing §227(c)(5), indicates that the Act does not give residents a right to sue for damages merely for failing to honor a request for its do-not-call policy. The paragraph further contains the following; “The Act authorizes a right to recover damages only if the consumer receives a second solicitation after having requested inclusion on the ‘do-not-call’ list “. Thus, you state damages can be recovered only if a do-not-call request is made.
I am puzzled by your interpretation of that subsection of the TCPA, the text of which follows:
| (5) Private Right of Action -- A person who has received
more than one telephone call within 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) . . . (B) an action to recover for actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation, whichever is greater, or (C) . . . |
The regulations prescribed under this [above] subsection are included in 47 CFR §64.1200 (e)(1) and (2)(i)-(vi). Therefore, 47 USC §227 (c)(5) grants statutory damages for a violation of any provision of CFR §64.1200 (e), so long as the threshold of more than one telephone call within any 12-month period by or behalf of the same entity, is met.
My reading of your interpretation of 47 USC §227 (c)(5) would prevent residents from recovering damages as a result of multiple telephone solicitations at 3:00 a.m. or in violation of any other aspect of paragraph (e), unless the resident made a do-not-call request. It is my sense this is contrary to the letter and spirit of the statute as well as the intent of Congress.
As your referenced letter may soon be cited in court, I look forward to your earliest response.
Sincerely,
Robert Bulmash, President
cc: Senator Earnest Hollings
Congressman
Edward Markey
Congressman
Dennis Hastert
House
Subcommittee on Telecommunications and Finance
Montgomery
County Office of Consumer Affairs.