If there was ever a law
that smelled of campaign contributions from big business,
this is it. Even its title is a lie.
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Telephone Consumer Protection Act of 1991
The TCPA is the much heralded law which
purports to protect residents from junk calls. But sadly,
due to the Direct Marketing Association and its political
campaign contributing members, it has so many loopholes that
telemarketers can drive a boiler-room through it. In
our opinion, the TCPA would be better titled the Telemarketing
Callers' Protection Act.
The TCPA does
nothing to limit live or recorded junk calls from -
The TCPA does
very little to limit common, live junk sales calls -
- Telemarketing-research outfits -
- Generally, they dial a list of random phone numbers
purchased from other firms whose business it is to generate
and sell such random phone lists.
- The fact that they dial random phone numbers means that,
when they dial your number, you are indeed nothing more
than a number to them. This is a practice which Private
Citizen considers reprehensible; particularly when they call
your home, your final sanctuary.
- In order to find a research subject with the
psycho-demographic profile which matches the survey (e.g.. an
individual who commutes to work by train, or a family that
bought a major appliance within the past 5 years and has at
least two children under the age of 18). As a result, they may
make over 100 calls before finding someone that fits the
criteria of the subject survey. That means 99% of the junk
calls they make are to folks that they don't want to talk to.
- Furthermore, the telemarketing-research industry estimates
that, of those called that do meet the psycho-demographic
profile of the survey, 33% will refuse to participate.
- Thus the telemarketing-research industry knows, before it
pick up the phone to make its next call, there is a (commonly
+99%) likelihood that the result will be only to disturb the
person called to the phone.
- This writer asked a telemarketing-research outfit which
was surveying those who commuted by train to work, how many
calls were necessary to reach a commuter. They told me
'120'. I asked why they did not simply stand on a
suburban train platform at 7 a.m. and survey folks waiting
for the train, rather than recklessly and needlessly
bothering 100's of people at home. They're response; 'having
an employee do 10 surveys on the platform' would cost more
than calling 10,000 residents to do the same 10 surveys'.
- Does the word 'sociopathic' describe such behavior?
- Tax-exempt / charitable / fundraising outfits -
- On average, only 25% of what you donate as a result of a
telemarketing call will actually get to the charity on whose
behalf the solicitation is made. The telemarketing firm which
makes the 'charitable' junk calls keeps the rest.
Indeed, some telemarketing firms that junk call on behalf of
charities (such as police and fire fighting associations) keep
up to 90%.
- Upon the release of a Report on Paid Telephone Fundraising,
(August 20, 1996) the Connecticut Consumer Protection
Commissioner (Mark A. Schiffrin) stated; "This report proves
that the surest way to squander charitable contributions is to
give them through a paid telephone solicitor."
- Regarding police association junk calls... if someone
walked into a bar, identified himself as representing a
police organization and asked for a 'contribution', he may
be charged with extortion. Yet if the same person calls the
home of an elderly person (who is commonly concerned with
prompt and effective police response in an emergency), with
the same request, there is no penalty... except to the
- Generally, if someone donates to a telemarketing charity,
that person will receive relentless repeat calls attempting
to generate more revenue. Since the TCPA does not cover such
calls, it will not help a tele-victim in stopping the calls.
- Does the phrase 'predatory fraud' describe such
- Does the phrase 'self
interest' describe such ... well;... self-interest?
Nevertheless, there are some 'gems' in the TCPA. It seems
that our federal government and regulators were so anxious to
appease the DMA and its members by gutting the privacy provisions
from the bill, they forgot to eliminate certain 'technical'
violations that allow citizens to immediately sue for
incidents which occur (or do not occur) during almost every junk
- It does not cover live junk calls to businesses
- Although it does regulate junk calls to residents, the law is
more silliness than substance
- The TCPA states that, if you advise a telemarketer to 'Put
me on their do-not-call list', they may not legally solicit
you again for ten years.
- However, if they continue to junk call you once a year
from the date you asked them to stop, the law strips you of
any opportunity to take legal action. If they call
twice 'in violation' within a twelve month period, then you
can sue for $500.
- But if you sue, the TCPA grants the junk caller an
'affirmative defense' at trial. If he says, "Your Honor; We
have established and implemented, with due care, appropriate
procedures to prevent our violation of the law", the judge
must dismiss the case unless you (the plaintiff) present
evidence that they do not have such procedures in place.
- The fact that they called twice 'in violation' within
one year will not necessarily overcome their 'affirmative
defense' since the defense is not available until they are
sued, and they can't be sued (for multiple violations of a
do-not-call request) until they call you twice within
Private Citizen members learn what these technical
violations are, and how to take advantage of them. To join
Private Citizen click here.
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