So for a few months I have done some research on suing telemarketers. There are a few examples on the web about regular people successfully suing (and even collecting!) from telemarketers who violate the Telephone Consumer Protection Act of 1991 (TCPA).

A few months ago after reading up on this, I even went so far as to print out a telemarketer call sheet so that I could take notes when one called and follow a script of my own to ensure that I asked all the right questions and uncover as many TCPA violations as possible.

Each violation is a $500 penalty (and there can be and usually are multiple violations per call). Plus you can sue for triple damages if you can prove that the violation was knowing and willful. Typically (though with some exceptions as you will see below) the first call is free i.e. you can’t sue them just for calling

I tracked things for awhile but got frustrated. As you can imagine, telemarketers a) are scum, b) know they’re scum, c) don’t like getting sued and d) are scum. So they do things like hide what phone number they’re calling from, obscure the name of their company, etc. in an effort to make it harder to get sued. Hard to sue someone if you don’t know who they are.

But yesterday I got a call from Donna Bauer aka “The NoteBuyer”. The call was received at 9:11 p.m. (DING! Violation #1) and it was an automated message (DING! Violation #2). I answered because it came from a local (513 area code) number but when I heard who it was I hung up before too long. But then after I hung up I realized hey – this would be perfect.

So I crafted a demand letter which I have posted below

February 6, 2009
Donna Bauer
The NoteBuyer Incorporated
11177 Reading Road
Cincinnati, OH 45241
Dear Ms. Bauer:
On February 5, 2009 at 9:11 pm EST, I received a telephone call at my primary residence. This telephone call purportedly came from the telephone number 513-698-2005. Upon my answering the telephone, an automated female voice introduced herself as Donna Bauer aka “The Note Buyer” and proceeded to engage in telemarketing about her services.
This call makes the following legal violations according to 47 CFR §64.1200 Subpart L:
Pre-recorded Message is itself a violation §64.1200(a)(2)
Phone call was received after allowed hours for telemarketing (8 a.m. – 9 p.m. local time) §64.1200(e)(1)
The Telephone Consumer Protection Act of 1991 (TCPA) establishes a private right of action for telephone subscribers who receive such calls. §227(b)(3) of the TCPA provides:
“(3) PRIVATE RIGHT OF ACTION.–A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State–
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, WHICHEVER IS GREATER, or (C) both such actions.
If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.” [emphasis added]
The term “willful” as defined in the Communications Act §312(f), does not require intent to violate the law, only intent to commit or omit the act in question. Given The NoteBuyer’s long history in the real estate business and telemarketing, I am confident that I can demonstrate that these violations were willfully and/or knowingly committed. I intend to file in court for $500 for each violation, and I will press for treble damages, based on the fact that The NoteBuyer Incorporated knowingly/willfully placed a pre-recorded call. This brings the amount to a total of $3000.
In the event that you would prefer to resolve this matter without court fines and attorney’s fees, you may remit the sum of $2000 to the address above. In exchange, I will forgive the violations that occurred on or before today, February 6, 2009, with the stipulation that my Do Not Call Request is entered in your system and I receive a written copy of your Do Not Call policy. If I have not heard from you by 5:00 pm on Friday, February 27, 2009, I will initiate a civil procedure, and my offer of settlement will be withdrawn. Thank you for your attention in this matter.

Sincerely,
Dan Miller

We shall see what happens!