About the Telephone Consumer Protection Act of 1991 (The TCPA)

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 -

• 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 elderly tele-victim.
• 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 behavior?
• Politicians
• Does the phrase  'self interest'  describe such ... well;... self-interest?

• 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 twelve months.

Private Citizen members learn what these technical violations are, and how to take advantage of them.
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