- May 3, 2012
- Posted by: Seth Heyman
- Categories: Business Law, Marketing & Advertising Law
It has often been said that there are two types of people in this world, a statement followed by some clever comparison apropos to the topic of the discussion. Of course, there are countless types of people in this world, but when it comes to laws, rules, and regulations, there truly are two types of people: those who choose to follow them, and those who do not.
This is especially in the case of heavily regulated industries, such as securities, food production, manufacturing, and international arms sales. Failure to abide by the regulations applicable to those industries can result in serious consequences to the public at large. People can lose their life savings, get sick from contaminated spinach or toxic waste, or get shot in a skirmish in some third world country.
In the case of telemarketing, failure to follow the rules generally results in annoyance, but those who choose to act illegally can also facilitate fraud. Those who refuse to abide by telemarketing laws are known as “Gangster Dialers,” and their activities have seriously tarnished the industry’s reputation (the same can be said of lawyers, but let’s not go there).
Telemarketing became increasingly popular throughout the 1980s, and new communications technologies, such as fax machines and outbound recorded voice messaging systems (known in the industry as voice broadcasting), enabled telemarketing organizations to conduct their campaigns on a mass scale. Many of the calls were delivered during the early evening hours, after the workday when most consumers were home to answer their phones. This resulted in a wave of consumer discontent, as dinners and family time were being constantly interrupted with unsolicited calls.
Why did this happen? The main reason is that, generally speaking, telemarketing is a highly inefficient way to sell something. Due to the lack of targeted consumer data, most telemarketers are forced to undertake a shotgun approach, and call as many people as they can in order to obtain enough responses to render the campaign profitable. Other telemarketers are also fighting to get the consumer’s attention with their own campaigns, and so the battle escalates. The end result is a “tragedy of the commons,” in which consumers found themselves inundated under a deluge of live sales calls, unsolicited faxes, and recorded calls. To make matters worse, these new, inexpensive telemarketing techniques helped con artists facilitate criminal schemes of ever-increasing sophistication, all to the detriment of legitimate telemarketers.
This situation, and the inconvenience and illicit activity it helped spawn, led to the enactment of federal legislation designed to curb it, along with rules and regulations promulgated by the FTC and FCC to enforce the legislation, including:
(1) The Telephone Consumer Protection Act of 1991, 47 U.S.C. §227 (TCPA);
(2) The FTC’s Telemarketing Sales Rule (16 C.F.R. §310.2) and its subsequent amendments of 2003, 2008, and 2010;
(3) The Do Not Call Implementation Act of 2003 (15 U.S.C. § 6101 et. seq);
(4) The National Do Not Call (DNC) Registry; and
(5) The Truth in Caller ID Act of 2009 (47 U.S.C. 227(e));
The TCPA and its attendant regulations imposed serious restrictions on the telemarketing industry, and provided for heavy fines and a consumer private right of action for violations. However, throughout the 1990s, many consumers were unaware of the statute, and enforcement efforts were few and far between. As a consequence, many telemarketing organizations ignored the statute entirely. That cavalier attitude began to change in the late 1990s and early 2000s due to three factors.
- First, thanks to the Internet, consumer awareness of the TCPA began to spread. The private right of action spawned a cottage industry of TCPA litigation, and thousands of small claims lawsuits and class actions were filed in every state against telemarketers. Widespread use of Caller ID made identifying the perpetrators easier, and profits began to erode as more legitimate companies began following the rules.
- Second, enforcement efforts at the state and federal level- driven by scams perpetrated through illegitimate telemarketing campaigns- began to escalate. Injunctions, asset freezes, and coordinated multistate Attorney General lawsuits shut down many large operations, and deterred others from engaging in voice broadcasting campaigns on behalf of those industries targeted by regulators, such as bogus credit card offers and auto warranty scams.
- Finally, the announcement and implementation of the Federal Do-Not-Call Registry and the heavy fines it provided for calling any of the millions of consumers who registered their numbers, further escalated the costs of telemarketing by shrinking the database of available numbers.
These factors made the legal use of faxing and voice broadcasting largely unprofitable. However, there was and is still a profit to be made for companies willing to go underground. Thus was born the Gangster Dialer.
Although the number of unsolicited calls has dropped considerably, Gangster Dialers still operate with impunity, mainly because the technologies at their disposal lessen the likelihood getting caught. Dummy corporations, offshore call centers, multiple carrier accounts, and other methods make Gangster Dialers difficult if not impossible to locate.
One of the most insidious of these methods is the practice of Caller ID spoofing, which can make calls appear to have originated from any phone number the caller chooses. Because of the high trust consumers have in the Caller ID system, they naturally place the blame for illegal calls to the entity whose name or phone number appears on their screen.
Even worse, Gangster Dialers often use Caller ID spoofing to disguise themselves as another telemarketer that conducts its operations in accordance with the law. When seen in this light, illegal spoofing campaigns represent a “triple play” for the Gangster Dialer. In one fell swoop, it is able to: (1) reap the profits generated from an illegal telemarketing campaign; (2) place the blame for the campaign squarely upon the shoulders of a competitor, resulting in enhanced regulatory scrutiny and a damaged reputation; and (3) subvert regulators’ enforcement efforts by tricking them into pursuing an innocent party.
Criminals are bad enough, but invisible criminals are even worse. Because illegal telemarketing campaigns generally result in consumer annoyance rather than monetary loss, cash-strapped government agencies naturally focus their enforcement efforts on perpetrators they can readily identify, which means that we’ll be dealing with Gangster Dialers for a long time to come.
That’s truly a shame, because legitimate telemarketers still employ thousands of people in this country, and, thanks to Gangster Dialers, few of them are willing to admit what they do for a living.