Law Review: Telemarketing law not much help
April 5, 2018
Is there anyone in the world who likes unsolicited telemarketing calls, especially at home?
I dare say no one. Yet we all receive them all the time.
Royal Administration Services sells vehicle service contracts, essentially extended warranties. Royal sells these extended warranties through automobile dealers and through what it calls "marketing vendors," who sell "through direct mail or telemarketing."
My personal opinion is that Royal should be shut down for hiring telemarketers who call at ungodly hours to upset us in the privacy of our homes. Of course, Royal makes money hiring unsavory telemarketers.
All American Auto Protection sells vehicle extended warranties for Royal and other companies through its disgusting and illegal, I bet, telemarketing. I don't like All American despite the name.
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Royal's telemarketing contract with All American supposedly prohibits "robo-calling." Of course, that did not stop All American from robo-calling. And Royal from making money off of All American's robo-calling.
Telemarketing calls in Reno
All American set up its robo-calling, conveniently ignoring that its contract prohibited it from doing so, using an "automatic telephone dialing system," hmm … that sounds like robo-calling.
All American, without being asked to do so, called Charles Jones, Josh Watson, and others to try to sell the "Diamond New Car" protection plan, which neither Jones nor Watson wanted or needed. After receiving more illegal robo-calls, they filed a class action lawsuit against All American and Royal. Good for them.
Telephone Consumer Protection Act
The Telephone Consumer Protection Act, which I find to be worthless, makes it unlawful for a person, "to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or artificial or prerecorded voice to any telephone number assigned to a cellular telephone service or any service for which the party called is charged for the call." There are other laws prohibiting robo-calling, but this case involves the Telephone Consumer Protection Act.
Under the act, consumers who have received more than one telephone call within any 12-month period from the same caller, a violation of the act, have a private right to sue according to federal law. Who/how would you sue?
The act expressly prohibits calls to a residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry. I can tell you I'm registered, and I'm pretty sure it has done no good.
Telemarketers win again
All American Auto Protection closed its boiler room doors and went out of business with impunity, victory for telemarketers. They are probably doing business under a new name.
Royal defended the lawsuit claiming All American was an independent contractor not an employee or agent of Royal and it had no control over how All American sold its vehicle warranties. See no evil, hear no evil, speak no evil comes to mind.
Even though Royal surely knew what its telemarketing company was doing, the federal trial court and Ninth Circuit of Appeals Court let Royal off the hook ruling it did not control how All American marketed these vehicle warranties. Are you kidding me?!
That is a bad decision in this writer's humble opinion. (Humble is my middle name.) The decision opens the door for companies to hire telemarketers and close their eyes and pretend they don't know what is going on, all the while taking proceeds from the telemarketers who extract money from innocent victims of robo-calling. The best I can say is no one said the legal system is perfect.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim's practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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