This article appeared in the August 4, 1997 edition of DM News


Beware of Telemarketing's Professional Plaintiffs

The telemarketing industry has always touted its ability to provide employment opportunities.

Whether it's jobs for single mothers who need the feasibility to work around day-care schedules, disabled individuals or students, the industry has continuously reduced the nation's unemployment rolls In the 90's, telemarketing has been the vehicle of choice for many college graduates and MBAs, most of whom are entrepreneurs looking for a cost-effective way to market a new product or service.

In the last several years, however telemarketing has created a new type of job: professional plaintiff.

These full-time plaintiffs spend hours dispensing advice on how to sue and planning suits to recover damages from telemarketers. They are not simply individuals who are frustrated by telemarketing calls, but rather people who have a true hatred of telemarketing.

One prominent professional plaintiff was recently quoted in The New York Times as calling telemarketing "simply sociopathic behavior." Such people consider it their life's work to exact a pound of flesh from every telemarketer they can.

Professional plaintiffs even have created a nunber of Web sites (the two most prominent are (now and (now in which consumers are urged to sue telemarketers in small claims court and share their and successes with others.

That said, it is fairly simple for telemarketers to protect from these suits. A few minor retentive steps will eliminate "plaintiff " being factored into the otherwise solid job growth the industry has created.

The majority of suits filed by these professional plaintiffs emanate from the regulations implementing the Telephone Consumer Protection Act (TCPA), which all telemarketers to maintain a formal written do-not-call policy. A copy of that policy must be provided to all consumers request it. Failure to provide a copy can result in a fine of $500 per violation.

When self-proclaimed consumer advocates are contacted by telemarketers, they always ask to be placed on that business's do-not-call list and request a copy of the written policy. A telemarketer who does not respond to the consumer's request is assumed to be without a formal written policy. The telemarketer then can be held liable for failure to have a policy ($500) and for failure to provide the policy (another $500).

Given the number of telemarketing calls made on an average day and the number of companies that do not know the law and/or do not have a written policy, it is easy to see why the number of suits against telemarketers is increasing dramatically. Buoyed by sympathetic judges, these suits are increasing at an alarming rate.

While $1000 may not seem like a large penalty to many telemarketing businesses, when multiplied by 10 or 20 or however many lawsuits may be filed, coupled with the legal expenses of defending these suits in a number of states, the bottom-line expense for a company can be substantial.

The cost to prevent such suits is minimal. This is clearly a case of an ounce of prevention being worth a pound of cure.

The TCPA does not mandate how extensive a company's do-not-call policy must be. For most telemarketing businesses, a short and simple document outlining the basic do-not-call requirements will be sufficient.

In some form, the written must state that when a company receives in any form, from a consumer, it has a formal procedure for ensuring that the consumer's name will be purged from all future calling lists. This includes a procedure for all telemarketers to add the names of consumers they speak to who request to be placed on the company's central list. The formal procedure is adequately conveyed to all employees, and all telemarketers are trained in the proper procedure to add a consumer's name to the list.

It should be stressed to telereps that when they receive such a request, they must forward the name to a manager, supervisor or some other central location where the request can be recorded and a copy of the policy sent. For the price of a stamp, your business can avoid a $500 fine.

The law is not as draconian as these professional plaintiffs may make it out to be on their Web sites There exists an exemption for calls accidentally made to persons on the do-not-call list. It is only a violation if you call a person on the do-not-call list twice within a 12-month period.

Procedures like this will ensure compliance, end a flood of suits and improve the overall public image of telemarketing.

Tyler Prochnow is an attorney with Lathrop & Gage, a Kansas City, MO. and Washington, DC-based law firm. He specializes in telemarketing law and regulatory policy.

Hats Off To DM News!

In the August 28th edition of DM News, the editor printed my response to the above article. As always, DM News demonstrated it's fairness in printing both sides of an issue.

Professional Plaintiffs May Be Enforcers, But FCC Isn't Any Richer

I am the person who operates the Web site ( mentioned in your article "Beware of Telemarketing's Professional Plaintiffs" (DM News August 4, 1997).

If telemarketers obeyed the law, "professional plaintiffs" would not exist. But not for those "professional plaintiffs" who would enforce the law? Despite widespread non-compliance, documented by both Dateline NBC and the US Congress, the FCC has not collected one red cent in fines.

Robert Arkow
Private Citizen, Inc.

Bob Bulmash, President of Private Citizen Inc. made the following comments:

Mr. Tyler Prochnow is described in the August 4th DM News as an attorney specializing in telemarketing law and regulatory policy. For the benefit of those who read his article (Beware of Telemarketing's Professional Plaintiffs) I wish to clarify some aspects of his review of the Telephone Consumer Protection Act of 1991 (TCPA)

. 1) Mr. Prochnow indicated, concerning a resident's do-not-call request, that the resident's name must be added to the do-not-call list. In fact, it is the resident's telephone number which must be placed on the list (a name is optional, at the discretion of the resident).

 2) He further stated, "It is only a violation [of the TCPA] if you call a person on the do-not-call list twice within a 12-month period." Actually, once a resident has asked to be placed on a firm's do-not-call list, any solicitation call made by that firm to that resident, during for the following 10 years, is indeed a TCPA violation. In order for a resident to file suit for such violations, the TCPA set a threshold of two calls within a 12-month period.

Mr. Prochnow also wrote, "One prominent professional plaintiff was recently quoted in the New York Times as calling telemarketing simply sociopathic behavior". I am that person and I stand by that statement.

The anthem of the telemarketing industry is: "We don't want to call people who don't want to be called." A reasonable statement to be sure, and one I believe to be true. Yet, the fact that they do call folks who don't want to be called, is one aspect of the industry's sociopathic behavior. A telemarketing entity knows, before each call it makes, that the most likely result of that call will serve only to disturb someone rather than gain that person's compliance to the `pitch'. Yet telemarketers blaze into our homes at an ever-increasing rate.

If telemarketers did not call those who did not want to be called, they would be calling less than 25% of the population. Survey after survey, published in/by telemarketing trade journals, business magazines, industry leaders and government documents find the vast majority of residents prefer not to receive sales calls. In the face of this reality, the telemarketing industry supports, and the Direct Marketing Association promotes an opt-off scheme. In light of what the readers of this missive know in their hearts to be true (that most folks are annoyed by junk calls), the only reasonable way to address the problem of unwanted calls is an opt-in policy, requiring an express, affirmative and knowing consent in response to a conspicuous request of permission to solicit by phone.

Instead, the DMA gives the nation a tin-plated, voluntary, unenforced, commonly ignored, public relations ploy and legislative weapon known as the TPS.

Another aspect of the telemarketing industry's sociopathic behavior is its use of predictive dialing equipment, when (as is common) such dialers are set with an abandonment rate of up to 10% (and, at times, higher). The result; hang-up calls to the elderly, the infirm, young mothers caring for their infants, families at dinner, sleeping night-shift workers, and yes, even the telemarketing executives helping their children with home-work. Years ago, most hang-up calls were from young pranksters, next door. Today, most hang-up calls are from engines of American commerce; "legitimate" telemarketing firms, a thousand miles away.

Look up "sociopathic" in a dictionary. Read the definition in light of the telemarketing industry's business practices I have mentioned. Then decide for yourself.

I hear from the victims of the telemarketing industry's privacy-abusive business practices every day. Perhaps representatives of the DMA and ATA should sit in my chair, where they can watch the personal privacy debris left in their wake as they chant their vaunted and vaporous self-regulation mantra to legislators (by telephone).

One last thing. Tyler Prochnow also wrote, "Such people [referring to me and others he mislabeled as Professional Plaintiffs] consider it their life's work to exact a pound of flesh from every telemarketer they can."

Earlier this week I was telemarketed at my residence by a small local firm I had not heard of before. As is the case with many members of Private Citizen, Inc., I made provisions to legally tape record the call. The telemarketer did not give her correct name, and failed to announce the firm's address or phone number during her lead generation call for a mortgage broker. I also learned that the firm did not maintain a do-not-call-list, nor did it have a do-not-call policy.

Since I had the violations on tape, I presented myself as being interested in order to encourage the broker himself to call me, and thus establish the criteria required to file suit. It would have been an easy case; perhaps worth $2,000 (up to $6,000 if the judge granted triple damages allowed under the TCPA) for two junk calls. Not bad, even for a mis-monikered "Professional Plaintiff".

Today, when the broker called to follow up, I had every intent to ask if wished to negotiate a settlement. Soon after he began his pitch I mentioned that the earlier caller did not give me the address or phone number of his firm, and that such a circumstance was a violation of law. Instead of a "blow-off" or hang-up like most "Professional Plaintiffs" hear from most telemarketers who violate the TCPA, this guy expressed sincere concern, a genuine desire to learn about the law, and his firm's intent to comply with whatever the law mandated. Without skipping a beat, I brought him up to speed on the TCPA and offered him a free copy of Private Citizen's booklet ("So... You want to Sue a Telemarketer") which contains the TCPA and FCC regs. I did not mention any need for a negotiated settlement, and I do not intend to pursue the matter further.

The reason? This telemarketer did not present himself as able to flaunt the law, as many "respected" telemarketing firms do. I left about $1,000 on the table (without having to go near a court house) in favor of helping a telemarketer who wanted to abide by the law. I wonder how many lawyers (often the true Professional Plaintiffs) would do that; particularly those that specialize in telemarketing law and regulatory policy.

Gotta go now! It's getting late and I still have to prepare an affidavit in support of a Private Citizen member who filed a case against AT&T. Like Mr. Prochnow, she's a lawyer too. Private Citizen members commonly help lawyers (and others) deal with telemarketing issues... when the need arises.

 Bob Bulmash, President, Private Citizen, Inc.

Comment on Bob's comment: Bob Bulmash has fought the telemarketing industry since 1988. Please go to his website and join his fine organization. His $20 yearly membership fee helps support the fine work that he does. If not for Private Citizen, who would take on the telemarketing industry?
Please join.