Are you getting marketing text messages late at night? You might be able to sue for damages.

 Under the Telephone Consumer Privacy Act, or TCPA, a company is not supposed to engage in automated calling or text messaging without your permission. They also aren't allowed to send automated messages to you before 8:00 AM or after 9:00 PM your time.  I received a complaint from a person who is receiving late night messages repeatedly from patpat.com.  If you are repeatedly getting text messages you didn't sign up for, or outside of 8:00AM-9:00PM, please contact me.  

TCPA - The best way to revoke your consent to get robocalls

Probably THE hot area in consumer law right now is the TCPA, the Telephone Consumer Privacy Act.  Among other things, the TCPA prohibits auto-dialed calls to personal cell phones for commercial purposes without prior written consent, and each call that violates the TCPA can bring damages of $500-1500.

One of the thorniest issues involves consent and revoking consent. Many times people give consent in boilerplate contracts, paper or online clickboxes, often without realizing it.  It is clear, however, that once you give consent, you can revoke it. Per FTC guidelines, you can revoke consent orally or in writing in any reasonable manner.

When people are getting calls I generally recommend that they first revoke consent orally, with some prof that they did it, for example by recording your call where you revoke consent. (Technically you can always record a call if you live in a "single party consent state". If you live in one of the few dual party consent states, recording the call may violate a wiretapping statute.) Another option is to put the call on speaker phone and have a witness listen to you call revoking consent and make "contemporaneous notes".  I've never actually had anyone do this though.

What do you say to revoke consent? "Don't call me anymore."  If you want to get technical, "I hereby revoke my consent for you to call me."

After revoking consent orally on the phone, I urge people to write to the company calling and  revoke it in writing.  The challenge sometimes is to find the right address to write. There are cases where  consumers  thought they were revoking, but because the letter didn't get to the right subentity, they lost their case.  For example, the consumer who sued Target card, which was owned by TD Bank, but the consumer faxed their revocation to the wrong departments at TD Bank.  As a general rule, you can send your revocation to the address given on a statement for correspondence. I personally believe that you can send your revocation to the registered agent of a corporation in your state, IF the corporation whose agent you are sending it to is the same corporation that is calling you.  This is one that I haven't tested out yet.  Oral revocation followed by revocation by certified mail to registered agent has a lot of promise for maximizing damages, however. After oral revocation is ignored, the calls after oral revocation stand a good chance of qualifying for maximum damage of $1,500 per call for willful violations. The delay in communications received by the registered agent to the operating office of the company will generally result in calls that are received afte

If you are an Indiana resident who is receiving robocalls to your cell phone, or if you are receiving unsolicited fax advertisements (another TCPA violation), I urge you to call me at 317-662-4529. There is another major area of prohibition under the TCPA, telemarketing calls to home telephones on the do-not-call list. Unfortunately, these days, those calls tend to be placed by scammers that have carefully insulated themselves from lawsuits, and in my experience, not even 1 out of 100 of these calls can be practically sued upon.

Have you been getting Telemarketing Calls from (317) 548-4319?

I have received a complaint about spam telemarketing calls from 317-548-4319. The automated voice associated with these calls asks the callee if he/she is interested in a home security system and offers to transfer them to a live operator. You should be aware that unless you gave specific permission for this company to call your cell phone, or if this company calls your landline after you have added your number to the "do not call" list, thate caller could be violating the Telephone Consumer Privacey Act, and you can sue the caller fro $500 to $1500 per call.  Please contac tmy office at hoferlawindy.com for more information.

Put Geek Support on Life Support

Lately I have been getting calls to  my landline from a blocked number.  The call is clearly auto-dialed with a pause before a live person .  on.  the call clearly comes from an overseas call center.  The person comes on the line with a generic American name and says he/she is from "geek support" and is calling about my computer.   I don't have any technical support calls in on my computers, and I know it is a scam.  I try to engage the caller, but he senses something is fishy and he hangs up.

I think these are the same people that called my elderly mother.  They got her quite worried, and she was ready to go along with their pitch until she figured something was wrong and hung up.

I have never subscribed to the argument that scammers should have free reign to take advantage of the most mentally infirm customers.  When you think about it, we all hope to get to the point one day when we don't have the mental skills we had at our peek.  At the same time, when we are aged, we don't want to have to be locked in a closet to keep from being preyed upon by every scammer under the sun.  I don't believe in a "gotcha" society.  It shouldn't be "open season on grandma".  

What can you do about overseas telemarketing scams? Realistically, there's not a whole lot that I can do as a private lawyer about overseas scammers using blocked numbers. The Federal Trade Commission and the Federal Communication Commission, on the other hand have more resources and international connections, and they can. They just need to make it a higher priority.  If you receive a predatory call, complain to the FCC  and The FTC.  If you have the opportunity, see if you can get information from the scammer to identify them and the numbers they are calling from.   If you or your family members give them money, if it is by credit or debit card, contact the company that issued your card and ask about their fraud procedure.  If you give them personal information and/or access to your computer, that creates a messy situation that is not easily resolved and has to be handled on a case by case basis.

Here's a link to FTC information on phone scams.

One last thing: it is easier dealing with telemarketing calls to cell phones rather than land lines. If you are getting telemarketing calls to your cell phone, you should make a recording of you getting information about the identity of the caller and you telling the caller that they do not have permission to call your cell phone, then give the number. If they call you after that, using an automated dialer or recorded voice, you can sue them for damages based on the number of calls they made.  If you are getting auto-dialed telemarketing (or collections) calls, contact our office or find an attorney close to you through the National Association of Consumer Advocates at www.naca.net.

Bankers Lobby Defeated in Fight Over Robo-Calling Rules

The Federal Communications Commission issued new rules concerning robo-calling under the Telephone Consumer Privacy Act, or TCPA.  Among other things the TCPA provides remedies for consumers when they receive auto-dialed telemarketing or collection calls to their cellphone when the consumer has not given the caller permission.

Under the TCPA, consumers have the right to sue for $500 per unauthorized robocall to their cell phone with that number tripled in cases of intentional violations.  The  Consumer Law Office of Steve Hofer is working on Two TCPA cases at present.

The banks had lobbied for complete exemption of liability to wrong number telephone numbers. The FCC made a slight concession and now exempts one call to a wrong number phone.  This is the right decision.  Nobody really files suit for one call anyway. The TCPA does not have a clause providing for attorney fees separate from the consumer's per call damages. That means that attorney fees for the violations have to come out of the consumer's damages.  Unless the consumer has been called numerous times, there is no economic incentive to file suit.  If a bank or other commercial caller calls your phone one time by mistake, there's not enough harm to justify a law suit.  But if a bank calls your phone "by mistake" numerous times it is harmful enough to justify damages just to encourage the caller to be more careful.