Let’s get serious about Do Not Call

I just got a call from a not-known-to-me phone number.

But it was from Florida, where I have a lot of relatives. So I answered.

The call, from 561-279-3056, was a pre-recorded message. “Press 1” to get more info on how to make up to $10,000 a week.

Robocall.

SCAM.

Do Not Call registry

My cellphone has been on the Do Not Call registry since its launch in June 2003:

Thank you for registering your phone number with the National Do Not Call Registry. You successfully registered your phone number ending in 0005 on July 02, 2003. Most telemarketers will be required to stop calling you 31 days from your registration date.

As I filled out the complaint form on the DNC website, I wanted to scream at the FTC and Congress for insufficient funding/disincentives that would limit this behavior.

Calls that are banned

Here’s what is exempt from the Do Not Call regulations:

Because of limitations in the jurisdiction of the FTC and FCC, calls from or on behalf of political organizations, charities, and telephone surveyors would still be permitted, as would calls from companies with which you have an existing business relationship, or those to whom you’ve provided express agreement in writing to receive their calls. However, if you ask a company with which you have an existing business relationship to place your number on its own do-not-call list, it must honor your request. You should keep a record of the date you make the request.

Anything else is against the law.

That said, the exemption for “telephone surveyors” is wider than a set of barn doors.

@kegill I am getting calls almost daily from “research” orgs. I always say, “Please put me on your Do Not Call list.” So annoying.

— JillOWeen S. (@outseide) October 19, 2014

When companies violate the law

The penalties seem pretty severe:

A company that is a seller or telemarketer could be liable for placing any telemarketing calls (even to numbers NOT on the registry) unless the seller has accessed the registry and paid any required fees. Violators may be subject to fines of up to $16,000 per violation. Each call may be considered a separate violation.

But there is a generous escape clause (emphasis added):

If a seller or telemarketer can show that, as part of its routine business practice, it meets all the requirements of the safe harbor, it will not be subject to civil penalties or sanctions for mistakenly calling a consumer who has asked for no more calls, or for calling a person on the registry. To meet the safe harbor requirements, the seller or telemarketer must demonstrate that:

• it has written procedures to comply with the do not call requirements
• it trains its personnel in those procedures
• it monitors and enforces compliance with these procedures
• it maintains a company-specific list of telephone numbers that it may not call
• it accesses the national registry no more than 31 days (starting January 1, 2005) before calling any consumer, and maintains records documenting this process
• any call made in violation of the do not call rules was the result of an error

Given my registration date (2003), it’s clear that the unknown-to-me company that called me today did not access the database before initiating this campaign.

Moreover, the message was pre-recorded, a robocall. The FTC specifically addresses robocalls on the complaint form:

You may also file a complaint if you received a call that used a recorded message instead of a live person (whether or not your number was on the Registry).

That’s because the 1991 Telephone Consumer Protection Act made auto-dialed calls to cell phones illegal even if you have not opted out:

If you answer the phone and hear a recorded message instead of a live person, it’s a robocall. If the recording is a sales message and you haven’t given your written permission to get calls from the company on the other end, the call is illegal period.

How many companies have been fined by the FTC for violating the Do Not Call rule?

The law has been on the books since 1991.

Last June, in a 10-year retrospective of the DNC registry, the FTC said it had 100 law enforcement actions, an average of less than one per month.

For whatever the reason, the FTC is unlikely to investigate unless the perp is national or regional in scope and the behavior is unquestionable and widespread.

• In June 2014, the FTC fined Versatile Marketing Solutions, a Massachusetts company, $3.4 million for DNC violations.
• In October 2013, the FTC settled with Bank of America to the tune of $32 million over DNC violations relating to mortgages. But the company denied all allegations.
• In June 2013, the FTC fined mortgage broker Mortgage Investors Corporation $7.5 million for DNC violations.
• In 2005, the FTC fined DirecTV $5.3 million for DNC violations.

However, this news story from 2013 illustrates my belief about lax enforcement: even after repeated violations, the FTC has taken no action and the state of Florida’s penalties clearly aren’t a deterrent.

We need real penalties that are enforced across the board as well as public shaming: list the violators and penalties and ongoing investigations on the FTC website.

How we can make a difference

First, very important:

When (not if, when) you get an illegal robocall, hang up.

When you get a robocall, do not “press 1” to speak to a person and do not press any number that the caller says will take you off their list. Your pressing the keypad validates your number and could lead to even more robocalls.

I believe that the open source software movement philosophy that many eyes can unearth all bugs can also work here.

If everyone would file a complaint when they get a DNC message, perhaps we could put an end to this.

In addition to filing a complaint with the FTC, you need to file a complaint at the state level.

Your state may have a registry. Florida does.

***

This is one of those instances where the cost of each transgression (adding one additional number to a robocall list) is for all intents and purposes zero, another example of the disruptive effects of digital communication.

The pain of each transgression is borne by a single person and is minor in the overall scheme of life.

But in the aggregate, the cost to society is very real.