Super Powers and RoboCallers

J. Bradley Klepper
Attorney at Law

When I was a kid, I dreamed of being a superhero. I wanted to be able to fly. Catch bad guys. Have cool “toys” and just generally get to be the guy that was cooler than the other side of the pillow.

Of course, dreams change and as I got older I dreamed of being a lawyer. Not really. Not sure any child has ever dreamed about begin a lawyer. Instead, I dreamed about playing center field for the Boston Red Sox. But as fate would have it, I was a little short for the position. Of course, I made up for it by being slow. Needless to say, that dream fizzled out too.

However, my dream of being a superhero came back in full force the other day as I was screaming at my computer wishing I had superpowers so I do horrible things to the folks who send the robocalls and robotexts. Now in the interest of full disclosure, I hate robocalls and robotext. In fact, I hope there is a special place in hell for (i) people that hurt children; and (ii) robo-callers/texters. Not sure why it bothers me so….but it does.

Clearly, I was triggered. The article I was reading about the settlement between DISH Network, LLC and the Department of Justice in which Dish agrees to pay the largest civil penalty ever to resolve telemarketing violations under the Federal Trade Commission’s Telemarketing Sales Rule. In fact, it exceeds total penalties paid to the government by all prior violators of the Telephone Consumer Protection Act (“TCPA”). How much? In total $210 million is to be paid by DISH which includes a payout to four states for violations. This lawsuit was filed in 2009 accusing the company and its contractors of dialing consumers that were on the Do Not Call Registry and placing calls that delivered a prerecorded or “robocall” message. A violation of the Telephone Consumer Protection Act.

The Telephone Consumer Protection Act of 1991 (TCPA) was passed in 1991 and signed into law by President George H.W. Bush as Public Law 102-243. It amended the Communications Act of 1934. Among other things, the TCPA restricted telephone solicitations and the use of automated telephone equipment. Of course, SMS text messaging did not exist in 1991 but it now falls under the TåCPA.

I was complaining about all of this to a friend of mine and he asked “Are robocalls still a thing?” Fighting the urge to get snarky I replied. “Yes, robocalls certainly are still a thing.”

Over the first 8 months of 2020, robocalls to Americans averaged 3.8 billion calls per month, according to the free robocall blocking app YouMail. The top illegal calls from August, according to a company press release, were car warranty scams followed by health-related scams.

Of course, not all robocalls are illegal. In fact, some are desirable to the recipient and you may have eagerly opted-in. They can be used legitimately by your pharmacy, your utility company, or your kids’ school.

Anyway, if those reading this article have taken actions to place themselves on the Do Not Call Registry, that probably helped you a great deal. At least it helped cut back the volume you were receiving of the legal calls. And if you frequently get these pre-recorded call solicitations you can strike that up mostly to scams but also shady folks who don’t care about the law. Mostly they use VoIP – Voice Over Internet Protocol- with caller ID spoofing and tracking down these call’s origination point is very hard.

Much effort is going into the fight against annoying and illegal robocalls. At the first of the year, President Trump signed the anti-robocall TRACED Act into law providing a longer statute of limitations to crack down on scammers, increased fines on violations, and encourages the Department of Justice to bring more criminal prosecutions against robocallers. Other inclusions were all moves in the right direction – with rare bipartisan supporters.

This summer, the Supreme Court upheld a federal ban on robocalls to cell phones which was a bid by political consultants. This case was closely watched in political circles and by some who wanted to open the floodgates for campaign ads. Whoosh…we did not have to face that in 2020.

In July, the Federal Communications Commission designated the ITG (Industry Traceback Group) as their official consortium for coordinating efforts to trace illegal robocalls. The ITG is a collaboration of wireline, wireless, VoIP, and cable industry companies that is led by USTelecom. The mission is to trace and identify the source of illegal robocalls and, according to the ITG, it conducted more than 1,000 trace-back operations in 2019 and unmasked the source of more than 10 million robocalls.

Furthermore, decisions in an upcoming case in the Supreme Court will better define what is considered an Automatic Telephone Dialing System under the TCPA and it’s happening now. The Supreme Court is hearing oral arguments in the case of Facebook v. Duguid in which Noah Duguid has sued Facebook, alleging that the company violated the Telephone Consumer Protection Act (TCPA) by using an automatic telephone dialing system (ATDS) to send text messages to his cellphone without his consent. Duguid is not a Facebook user and had not given Facebook his number. Facebook mistakenly sent Duguid text messages as part of its policy of automatically sending a computer-generated text message to a user’s cellphone with their account is accessed from an unknown device. Duguid contacted Facebook to get the messages turned off but continued to receive them for several months.

Telemarketing has evolved since the TCPA was enacted, bringing a lot of arguments around semantics to the oral arguments. Regardless of how the Supreme Court rules, its decision will likely provide more certainty to companies who wish to abide by legal requirements when it comes to their telemarketing. Yet, we will always have those who wish to break the law and continue to be disruptive and annoying.

At the end of the day, I think I would just be happy if I could get “Newt Gingrich” to quit texting me a couple of times a day asking for political donations. I mean Newt and I used to be close but that was a long time ago.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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