The Federal Communication Commission (FCC) poses the following question and answer: “Has your evening quiet time or dinner been interrupted by a call from a telemarketer? If so, you’re not alone.”
It’s doubtful that any American owner of any kind of telecommunication device hasn’t heard of telemarketing. In fact, telemarketing, or the act of direct marketing from a business to individuals or other business, has been a part of American life since the 1950s. Since that time, the practice has been evolved with modern technology from telephones to faxes, cellular telephones, and even via text.
Telemarketing can be downright annoying when it interrupts family dinner or a horror movie with friends. In addition to the interruption, telemarketers often utilize “unfair and deceptive advertising and marketing” to pressure consumers to sell their products. Examples include “slamming,” or “the practice of switching consumers' preferred telephone carrier without their consent” or sending unwanted facsimiles to businesses. Both practices generate a large amount of complaints each year. More recently, American consumers have been suffering the use of automated and prerecorded messages, or “robocalls,” to their homes. The FCC has struggled to control the calls and as Federal Trade Commission Chairman Jon Leibowitz put it, "American consumers have made it crystal clear that few things annoy them more than the billions of commercial telemarketing robocalls they receive every year."
But Americans have an ally in their fight against telemarketing. In 1991, Congress passed the Telephone Consumer Protection Act (47 U.S.C. § 227). The TCPA, while also striving to protect legitimate telemarketers who follow FCC regulations, combats unsolicited telephone marketing calls. But since the statute went into effect, the problem of unsolicited telemarketing has not gone away.
“American consumers have made it crystal clear that few things annoy them more than the billions of commercial telemarketing robocalls they receive every year.”
Part of the reason why policing telemarketing is so difficult is the interpretation of the law itself. To help with enforcement of the regulations, the act creates a private right of action for citizens to sue telemarketers who call them outside of the guidelines set out by the FCC. Specifically, the statute reads:
“(3) Private right of action
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State”
For years confusion has existed on what exactly the wording of the private right of action means. In most cases, a private citizen who brought a suit in a federal court was dismissed for lack of subject-matter jurisdiction. This obviously prevented a large amount of suits against noncompliant telemarketers since the lawsuits “could not meet the $75,000 amount-in-controversy requirement” for federal courts.
However, now the tide has seemingly turned. Last September, the Sixth Circuit reversed and remanded a district court’s dismissal of a case on lack of subject-matter jurisdiction. And on January 18, 2012 the United States Supreme Court followed the Sixth Circuit’s reasoning and decided, 9-0, that “[t]he TCPA’s permissive grant of jurisdiction to state courts does not deprive the U. S. district courts of federal-question jurisdiction over private TCPA suits.”
The question now is whether an enhanced and expanded private right of action will stop those telemarketers from interrupting the most important part of your day.
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