Author Topic: Repeated recorded sales messages to cell phone  (Read 1588 times)

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Kitten

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Repeated recorded sales messages to cell phone
« on: September 07, 2017 01:05:36 AM »
OK, let's say I get phone calls from a number 100 miles away, about 10 in a 20 day period, in some cases two in one day, autodialed to my cell phone. I didn't answer any, and voice mail messages were left: "Hi, I'm Kate at Jones Insurance Agency, and I'm calling to let you know I can save you hundreds of dollars..."

So I google the caller ID, and it belongs to Kate Jones Allstate Insurance Agency in a town 100 miles away. My phone has been in the DNC registry for 10 years, and it's a cell phone, and this is obviously a unsolicited commercial message. In listening to the accumulated VMs, it's obvious that Kate says every word exactly the same, same pace, same inflection, so she's using a machine to beam a recording at me repeatedly.

So, what should the complaint say when it's served in Kate's place of business next week? Should I be asking for $1500x10, or should I try for $1500x10x2?

Make a simultaneous complaint against her license with the state insurance commission?


aaabbb

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Re: Repeated recorded sales messages to cell phone
« Reply #1 on: September 07, 2017 01:59:51 AM »
1500x10x2. $1500 per violation of 47 USC 227(b)(3) for using an autodialer and $1500 per call under 47 USC 227(c)(5) for violating FCC regulations pertaining to the do-not-call list.

Bruno the JDB Killer

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Re: Repeated recorded sales messages to cell phone
« Reply #2 on: September 07, 2017 12:31:10 PM »
https://www.mrllp.com/blog-FCC-Clarifies-TCPA-Exemptions-for-Health-Care-Calls

Sounds like a solid case, perhaps a lawyer would take it. I wouldn't expect 1500 per call; that is very rare. Usually you only get that if they continue to call after being told not to. Just make sure you didn't agree to this in some other form. I doubt the insurance commission would care about this.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

fisthardcheese

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Re: Repeated recorded sales messages to cell phone
« Reply #3 on: September 07, 2017 01:38:41 PM »
https://www.mrllp.com/blog-FCC-Clarifies-TCPA-Exemptions-for-Health-Care-Calls

Sounds like a solid case, perhaps a lawyer would take it. I wouldn't expect 1500 per call; that is very rare. Usually you only get that if they continue to call after being told not to. Just make sure you didn't agree to this in some other form. I doubt the insurance commission would care about this.

They were told not to call when OP expressly placing their number on the DNC list.  That is an affirmative action that clearly states "do not call me".  I would aggressively go for the $3k per call on this one.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

Bruno the JDB Killer

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Re: Repeated recorded sales messages to cell phone
« Reply #4 on: September 07, 2017 02:36:56 PM »
Actually it's moot because they didn't have consent in the first place and should know better than to call. He can try, but I don't see him getting that much per call, especially when he saw all those messages and didn't take any action. He also has to prove that they knew they were willingly violating the TCPA.

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I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Clydesmom66

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Re: Repeated recorded sales messages to cell phone
« Reply #5 on: September 07, 2017 05:21:50 PM »
OK, let's say I get phone calls from a number 100 miles away,

Have no clue why you think the distance between you and the caller matters.  It is irrelevant.

this is obviously a unsolicited commercial message.

Actually no it isn't obvious.  Especially considering it is insurance.  You would be amazed at how many marketing schemes are hidden in VERY TINY print on websites and when you sign up for something completely unrelated in that small print is your consent for them to farm out your information including cell phone, autodialing, and pre-recorded messages to their "affiliates" who can then call you with impunity until you revoke consent.

You need to be 1000% certain that you didn't consent in some way you didn't see coming before you start counting your dollars won.

In listening to the accumulated VMs, it's obvious that Kate says every word exactly the same, same pace, same inflection, so she's using a machine to beam a recording at me repeatedly.

Burden of proof is on you that it is pre-recorded and using the same script repeatedly is not enough.  The court will want to know what system they used, how it works, and a list of the pre-dialed calls.

So, what should the complaint say when it's served in Kate's place of business next week? Should I be asking for $1500x10, or should I try for $1500x10x2?

If you don't even know how to word the complaint you need to take this to a consumer attorney because you are in over your head.  The days of "go away" money on TCPA claims are about over.  Businesses now purchase insurance specifically against these kinds of claims and suits.  Chances that you get $15,000 for this are slim to none let alone $30k.  You can expect them to push back HARD and maybe, MAYBE you get $2-3k.

Make a simultaneous complaint against her license with the state insurance commission?

The insurance commission is not going to do a darn thing about them calling and offering your services.  The entire industry is based on cold calling.  Had you actually revoked consent and they kept calling then you might have a viable claim to them.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Kitten

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Re: Repeated recorded sales messages to cell phone
« Reply #6 on: September 07, 2017 06:17:47 PM »
Can anybody point me to controlling 6th Circuit precedent on what constitutes willful?

I'd like to use the Charvat v Ryan definition, but that was OH Supreme Court and not binding precedent in MI.
https://scholar.google.com/scholar_case?case=4884800411190036105&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Bruno the JDB Killer

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Re: Repeated recorded sales messages to cell phone
« Reply #7 on: September 07, 2017 08:47:51 PM »
Use Google Scholar, it should give you lots of TCPA cases to wade through. The statute defines willful as the defendant knowingly having violated the law. How you prove that is up to you.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

aaabbb

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Re: Repeated recorded sales messages to cell phone
« Reply #8 on: September 09, 2017 05:37:50 AM »
Quote
You would be amazed at how many marketing schemes are hidden in VERY TINY print on websites and when you sign up for something completely unrelated in that small print is your consent for them to farm out your information including cell phone, autodialing, and pre-recorded messages to their "affiliates" who can then call you with impunity
This is wrong. You cannot bury TCPA consent in the middle of a contract, unless it's NOT a telemarketer. All autodialed telemarketing calls require prior express written consent, and that consent must be clear and conspicuous and it must inform the consumer that consent is not a requirement to conduct business with them.

Quote
If you don't even know how to word the complaint you need to take this to a consumer attorney because you are in over your head.  The days of "go away" money on TCPA claims are about over.
This is also untrue. I just received $5,000 to "go away" over just ten calls last month. I didn't even have to file suit. If you have recordings that prove your case any sane business will settle with you rather than face a class action lawsuit, which is probably what you should threaten them with.

Clydesmom66

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Re: Repeated recorded sales messages to cell phone
« Reply #9 on: September 09, 2017 04:17:56 PM »
This is wrong. You cannot bury TCPA consent in the middle of a contract, unless it's NOT a telemarketer. All autodialed telemarketing calls require prior express written consent, and that consent must be clear and conspicuous and it must inform the consumer that consent is not a requirement to conduct business with them.

NO one said there was a contract.  Since when is an insurance agency a telemarketer?  Try upping your reading comprehension skills.  MANY of these websites where consumers go to get quotes on services have small print that is perfectly legal authorizing the release of the information consumers give them to their "affiliates" and to be contacted.  On top of that when the consumer checks the little box agreeing to the terms of service to get the information they came for they consent to be called.  These companies bank on consumer not reading their TOS.  By the time consumers figure out their information has been sold to multiple telemarketers it can be virtually impossible to track down which entity disseminated their information to stop it.

TThis is also untrue. I just received $5,000 to "go away" over just ten calls last month. I didn't even have to file suit. If you have recordings that prove your case any sane business will settle with you rather than face a class action lawsuit, which is probably what you should threaten them with.

If this is a small insurance agency the chances of turning it into class action are slim to none.  You got VERY lucky that they fell for it.  There have been several threads on here about businesses fighting back against TCPA claims vigorously. 
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

aaabbb

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Re: Repeated recorded sales messages to cell phone
« Reply #10 on: September 11, 2017 02:45:53 AM »
Quote
Since when is an insurance agency a telemarketer?
The very instant they send a message that says "I'm calling to let you know I can save you hundreds of dollars...".

Quote
MANY of these websites where consumers go to get quotes on services have small print that is perfectly legal authorizing the release of the information consumers give them to their "affiliates" and to be contacted.
This is not a valid method of obtaining TCPA consent if the calls are telemarketing (and in this case they are). A signature (electronic or otherwise) is required. The standard is "Express written consent".

Quote
On top of that when the consumer checks the little box agreeing to the terms of service to get the information they came for they consent to be called.
No they most certainly did not consent to be called, unless they check a box that 1) makes it clear they are going to receive autodialed calls and 2) clearly states that consent is not a requirement to do business with them. This box is usually going to be a separate check box from any others the company may have you click.

Quote
These companies bank on consumer not reading their TOS.
As far as selling a consumers information goes, sure. That gets buried in a TOS all the time. But TCPA consent is impossible to obtain through a simple TOS unless you are not telemarketing.

Quote
By the time consumers figure out their information has been sold to multiple telemarketers it can be virtually impossible to track down which entity disseminated their information to stop it.
Disseminating information to third parties does not transfer TCPA consent.

Quote
You got VERY lucky that they fell for it.  There have been several threads on here about businesses fighting back against TCPA claims vigorously.
They did not "fall" for anything. They made the wise decision of settling out of court rather than face a class action lawsuit (I was not bluffing). It's not luck; if you can convince a lawyer to file a class action you can convince a business to settle with you. If you can show a business that they are guaranteed to lose many will settle rather than go to court. This is as simple as presenting a call log with recordings of you telling their employee not to call. No amount of insurance can turn a slam-dunk TCPA case into a win for a defendant.
« Last Edit: September 11, 2017 03:00:43 AM by aaabbb »

hamsalad

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Re: Repeated recorded sales messages to cell phone
« Reply #11 on: September 11, 2017 03:53:22 PM »
Clydesmom is wrong, often.  I, too, have settled a number of TCPA matters without filing suit by sending to their registered agent a properly worded courtesy complaint, and accompanying evidence.

By Clydesmom's "reasoning", there could be a statement saying, "by signing this, you consent to receive autodialed called from anyone forever."  Hiding consent would violate both the intent and spirit of the TCPA. 

Under the FCC’s rules, effective October 16, 2013 companies must obtain express written consent for telemarketing calls (including SMS text messages) that are initiated with either an autodialer or artificial voice/prerecorded message to mobile phones, or use an artificial voice/prerecorded message to residential phones (the autodialer limitations do not apply to residential phones).  In addition, the FCC eliminated the “established business relationship” exemption applicable to residential calls. While no consent is required for purely informational or non-telemarketing calls to residential landlines, the existing requirement that companies must obtain some form of express content for calls to mobile phones regardless of nature, remains in effect.

To satisfy the rules, a consumer’s express written consent must demonstrate that the consumer received “clear and conspicuous disclosure” that the consumer will receive future calls that deliver prerecorded or autodialed telemarketing messages by or on behalf of a specific seller. Given references by the FCC to “specific seller” in its February 15, 2012, Report and Order, the disclosures should specifically name the seller(s) of the goods or services that will be the subject of the telephone call. “Clear and conspicuous” means that the disclosure must be apparent to the reasonable consumer, separate and distinguishable from any advertising copy or other disclosures and must not be hidden, printed in small, pale or non-contrasting type, or buried in unrelated information.

The agreement must unambiguously reflect that the consumer agrees to receive telemarketing calls at the designated telephone number, disclose that consent to receive these calls is not required as a condition of purchasing any goods or services, and must be signed by the consumer. An electronic or digital form of signature is sufficient if it would be recognized as a valid signature under applicable federal or state contract law.
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ghost

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Re: Repeated recorded sales messages to cell phone
« Reply #12 on: September 13, 2017 12:53:44 PM »
Kitten, I get willful damages all the time in the 6th circuit. I havent seen a 6th circuit ruling but I have seen several from the middle district of Tennessee in my cases. I am going to have to cite one in an upcoming motion, so I will be looking this up shortly.

Insurance companies don't like getting sued in these cases, so I would go hard for something around 1500-2k per call in settlement and start off at 3k per call myself.

I would also sue the individual agent/agency and push for them to reveal how they placed the calls and what telemarketer they used and sue the telemarketer as well at some point. if you settle with the insurance company for $1500 you can pick up the other $1500 from the telemarketer
Lets do this

BellEbutton

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Re: Repeated recorded sales messages to cell phone
« Reply #13 on: September 13, 2017 04:18:18 PM »
Kitten, I get willful damages all the time in the 6th circuit. I havent seen a 6th circuit ruling but I have seen several from the middle district of Tennessee in my cases. I am going to have to cite one in an upcoming motion, so I will be looking this up shortly.

Insurance companies don't like getting sued in these cases, so I would go hard for something around 1500-2k per call in settlement and start off at 3k per call myself.

I would also sue the individual agent/agency and push for them to reveal how they placed the calls and what telemarketer they used and sue the telemarketer as well at some point. if you settle with the insurance company for $1500 you can pick up the other $1500 from the telemarketer

All the time?  How often do you sue?

fisthardcheese

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Re: Repeated recorded sales messages to cell phone
« Reply #14 on: September 13, 2017 05:45:12 PM »
All the time?  How often do you sue?

Hopefully every time the TCPA is violated (and the defendant can be served).
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)