HOWTO sue telemarketers and keep the stuff they send you without paying for it

If you follow an exacting script and keep careful records, you can apparently sue sloppy telemarketers (or their clients) for $500 each, and get free merchandise in the bargain. America's telemarketing laws seem tough on marketers, but they're structured in such a way as to make the process as difficult as possible for people who don't want to get phonespam. But if you are careful, you can get $500 every time a telemarketer calls you twice after being told to add you to its do-not-call list. They get to call you once without incurring this penalty, but apparently, you get to keep anything you order on the second call for free without paying for it, since "future calls will be a violation of an act of the U.S. Congress, any contract directly resulting from an illegal act is not enforceable. The Telephone Consumer Protection Act (TCPA) offers no 'grace period.'"

I'm not a lawyer, and I don't know if the author of the article is. It's presented in Comic Sans, so caveat emptor and all that.

May I have your company's name, address and telephone number? If you are calling on behalf of a client, may I have the name, address and telephone number of your company, as well as the name, address and telephone number of the company that you are calling on behalf of?
Put me on your "Do Not Call List". You are hereby ordered to share my "Do Not Call Request" with your affiliates, associates, and related entities. If you are a third-party service bureau (telemarketing company), put me on your company's "Do Not Call List" as well as your client's "Do Not Call List".
Send me a copy of your "Do Not Call Policy". If you are a third party telemarketing service bureau, send me your company's "Do Not Call Policy" as well as your client's "Do Not Call Policy".
If you call me again, I will use your product or service and not pay for it. My denial of payment will be based on the fact that your future calls are a violation of an act of Congress, and any contract that is entered into as a direct result of an illegal act is unenforceable.
Do you understand what I have just told you?
Will you comply with my requests?

Telemarketing Script (via Consumerist)

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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Anonymous

our thing has been to see how crazy you have to be before they start to worry and ask for you to hang up. I generally works, or at the very least we find it amusing.
erissian

I know the FCC won’t do anything if they don’t receive enough complaints, but the answer to “not enough people are doing it” is not “nobody bother”

I’ve received several follow-ups from the FCC, as much as five years after my complaint, about companies that have been shut down.
bolamig

“Please put me on your do not call list”. Click. That’s all you have to do to preserve your right to sue if they keep calling you.

I just got a landline since cell reception has been getting worse and worse, and I’m not excited about the telemarketing calls I’m starting to get.

I just can’t believe that politicians would think robocalling me would make me think better of them.
technogeek

Agreed, they’ve gotten very good at hanging up before they can hear any objection.

On the other hand, most companies have been honoring the do-not-call list. I never get junk calls any more except from (1) complete scams, (2) nonprofits, who are exempt (but who usually accept “I react very poorly to telephone solicitation; remove me from your phone list or I will STOP donating”), (3) politicians, who are also exempt and who are incurable, and (4) very occasionally, a company I’m actually doing business with (who get essentially the same answer as case (2) above).
emmdeeaych

I will let you know how it goes.
Kl-0

Hmm, I think perhaps it is time that Boingboing gets a lawyer to volunteer to fact check things. I cannot imagine it would be that difficult.
Yesterday you said in a post (in the article about the Supreme Court not granting cert) that in American, the loser pays the winner’s court costs. Unless you are in Alaska (and maybe soon in Texas) or the UK, this is not true (with some rare exceptions I don’t know off the top of my head, I think one of them is labor discrimination cases).
This thing about being able to keep the service for free is, to say the least, highly dubious. One of the basic defenses to contract enforcement is “intervening illegality”, which means that the thing you contracted for is either illegal (eg. hiring someone to kill another person), or has become illegal before contract performance is due. In this case, if you enter into the contract willingly (to buy something say) the issue of the telemarketers contacting you illegally would probably (I’m shooting from the hip using basic principals of contract law) not negate the resulting contract. This would have to be a defense to contract formation, and since it is presumably not fraud, duress, etc. The fact that you had been illegally contacted by a telemarketer would not be a defense to contract formation. That is not to say that the telemarketing statute (which I have not read) does not provide for other damages.
Anywho, the point is, maybe you guys should sign up a super-hip lawyer to interject sage legal advice before posting this kind of stuff that is just sort of wrong.
- Anonymous
  
  Well they apparently HAVE a legal team, Rob Rader & Marc Mayer Legal, is listed on the front page under the editors/contributors/team section.
Uncle Geo

Law or no law you are not going to stop these useless wastes of human protoplasm from calling, so you may as well have fun.

For the most clueless I ask for their company name and mailing address. Can’t always get it, but sometimes you do. Then mumble something about charging for your time and send ‘em an invoice. One guy called and said “We asked everyone in the office who ordered these consulting services and no one remembers it”. Can only imagine the time he wasted.

Better, though, is the 15 buck investment in a cheap modem and PhoneTray Free that logs calls by caller ID and let’s you tell it who you don’t want calls from (of course you have to talk to them once to know they’re tellys). The best part is that it allows you to choose to have the phone ring once and before it intercepts it and plays the .wav kissoff of your choice. Throughout the day and evening I get happy little boosts of satisfaction whenever I hear the phone ring once!
Max

Here’s an option that avoids all the tedious reading them the legalese and waiting for them to call again.

Simply buy crap when they first call. Then when they try and bill for it, go into the “I told you about this and unless you can prove it through your call recording logs, I’m keeping it”.

It’s more hassle for them to prove it than it is to write it off.
barkydog

Please don’t take this advice – ordering stuff without intending to pay for it is fraud. Also, you will be obligated to pay for it. The penalties for companies violating the relevant do not call laws to not include having to give away free stuff.

Signed,
hipster lawyer
teapot

I do not know if this applies in the US, but I cannot see how it wouldn’t:

In Australia, some telemarketers cold-call using numbers randomly selected from the phone book. In such cases there is no such thing as a ‘do-not-call-list’ as the list is derived from a publicly available source which is not editable. The only chance you have is to unlist your number in the phone book. The problem there is that your number will still exist on old databases (the telemarketers only update the list when the numbers are no longer a useful record – maybe 10 or more years).

If they have cold-called you using the phonebook database there is not much you can do but shout at them (Which isn’t so good anyway.. these are people, you know… People who have your phone number and endless hours to fill).
- cmacis
  
  In UK they have to have a copy of the do not call list and filter out these numbers from their list.
  
  /me has worked in same office as telesales.
daev

Do your part to help fight telemarketing:

Step one, memorize your local congresscritters office phone number.
Step two, give this number to every retailer that asks for one.
- 2k
  
  Let’s be inclusive and use ‘congress-entity’!
  :3
  - Gulliver
    
    Congree-thing?… All of a sudden I’m realizing how progressive Swamp Thing was.
Anonymous

If you can tell me how to get rid of Rachel from Cardholder Services, I’d be impressed.mo
bardfinn

The best possible response to telemarketing: “[I/We] do not respond to telephone solicitations. *Click*”.
Anonymous

I’d be interested to know if this applies to door-to-door solicitors as well?
voiceinthedistance

Best of luck in trying to keep a telemarketer on the line while you read legalese to them.
- dculberson
  
  No joke. Trying to say:
  
  “May I have your company’s name, address and telephone number?”
  
  My experience has been that they will hang up before you get to “address.” Possibly even “have.”
Tim

So, combine this with the “phantom city, ditch-your-itinerary-halfway-through” airline post and it gives Boing Boing a “here’s some stuff to try that might not be legal or really work” theme for today.
- Alvis
  
  One of the many reasons I stopped reading Consumerist.
- sirdook
  
  Yeah, if you see a post ‘via Consumerist,’ the default assumption should be ‘of dubious legality and effectiveness.’
  
  But suppose this is legally on the up and up – think about the gigantic hassle you’re setting yourself up for by trying to follow this policy. Most people are annoyed with telemarketers because they consider their own time to be valuable, and they don’t want to be hassled.
Anonymous

it is much easier to just ask them to hang on a minute and then walk away.
MrWooster

For those interested, Usenet skeptic-guru Jim Lippard has compiled an exhaustive compilation of his successful (and not too successful) lawsuits against various telemarketers. In the end, he was cleaning up with a tidy sum. You CAN nail these guys. It doesn’t require a soliloquy, just an adherence to some simple phrases and the tenacity to file a case with the courts. It’s a lot to take in, but it’s an impressive effort:

http://www.discord.org/~lippard/lawsuits.html
cmacis

In my experience (in UK) they hang up once you mention “phone preference service”. Which means that they miss me saying “remove us from your lists, because we’re on that list”.

Which, of course, means that some of them call back later.
Chevan

I remember reading an article four or five years back about a guy who made a living by signing up for junk mail and including his number so telemarketers would call him, then asking to be put on the no-call lists while recording the call, then suing them when they inevitably called back. It didn’t mention doing the “I get to keep the items” thing, though.

So you can make this scheme work, at least partially. It’s just a lot of hassle.
Anonymous

Yeah- as soon as we can get something like this for my home mailbox, we’ll be set!
Anonymous

I think it sucks that businesses don’t get the same protection as individuals with the no call list, since I work at a small cafe; we get a ridiculous amount of spam calls. Catching on to their game has been really interesting though; & the one thing we as a business have going on is knowing our rights. For instance if someone sends us merchandise (usually credit card machine paper) without us having ordered it, then try to make us pay a ridiculously high fee for it, we are legally allowed to keep it as a gift & we report them to better business & to the federal trade commission – who then notify the “company” who sent it (just a P.O. Box) & then they quite calling.

Also, one of my co-workers really enjoys messing with their heads until they hand up first. A couple of days ago someone called trying to sell us security cameras. She hung up after he asked if they could be installed in the bathrooms.
Anonymous

Sorry, I had to pause reading this to answer a call from the National Dental B.S. Co.. The second I said something they didn’t want to hear they hung up on me. As usual.
Chesterfield

If I’m bored, when I get a telemarketer call I like to play the part of a kind but lonely and slightly confused old man. You can keep these people on the line forever because they think they are going to generate a sale and don’t want to be rude to an old guy. My record is 42 minutes and I think I told the person that “my son David who now lives in San Diego is going to come home for Christmas this year” at least 4 times. I was also distressed that my dog, who is now deaf, got out of the house when I was getting the mail two days ago and hasn’t come home. After all this, the bastards still wanted to reface my cabinets because refreshing my kitchen would brighten my home and cheer me up.
- Gulliver
  
  http://howtoprankatelemarketer.ytmnd.com/
  - teapot
    
    SO GOOD!
  - Chesterfield
    
    That’s gold!
Anonymous

Just because a contract is unenforceable does not mean that one person gets to keep the benefit of their end of the bargain without paying for it. The angle of keeping the merchandise is very very dubious.
The Unusual Suspect

If it were at all easy to sue a telemarketer, there would now be a smoking hole where their call centre used to be.

For one thing, to whom do you serve the papers? The person calling you never works for the company thay claim to represent. And telemarketers switch names and mailboxes with almost the same frequency that they turn over staff.

For another thing, if you do get a hold of them, and convince them to send a company rep to defend themselves in court, it’s your word against his. (Or, if you took the time to tape their calls to you, it’s your unauthenticated tapes against his.)

And if you do get a judgement, how will that translate to you getting paid, if the telemarketer only has to shut down and reopen under a new name?

Oh, and what about your credit rating after the telemarketer gets pissed about you keeping merchandise you didn’t pay for?
Gulliver

But then you can’t prank them. Still, it is 500 bucks…
bhtooefr

Another thing to try is to IMMEDIATELY dial your phone company’s call trace number.

That puts it in the police’s hands.
Anonymous

Generally, if your legal position along the lines of something that sound like like

“future calls will be a violation of an act of the U.S. Congress, any contract directly resulting from an illegal act is not enforceable. The Telephone Consumer Protection Act (TCPA) offers no ‘grace period.”

or anything that sounds similar to that, I would strongly advise you to rethink your position, whether it comes to keeping telemarketing stuff or paying federal income tax.

It more than likely won’t go well for you.
grikdog

Screen your calls. Outbound is paid by the completed call. There’s no incentive to wait through a “Please leave a message after the tone…” timewaster.
sirdook

The best possible response to telemarketing: “[I/We] do not respond to telephone solicitations. *Click*”.

Sadly, no. You’re operating under the assumption that telemarketers are salespeople and, like any good salesperson, won’t want to waste their time calling someone who isn’t open to buying anything.
While they probably do have some sort of sales based bonus incentive, the person on the phone is almost certainly paid hourly, has the number to call selected by a computer, and probably don’t even dial the numbers themselves anymore.

The only effective response is ‘Please place us on your do not call list.’(If you live in the U.S.; evidently there are similar magic words available in the U.K.) That legally gives them 30 days to remove you from their list and stop calling. Everything other than that, even seemingly equivalent phrases such as ‘please don’t call again’ are only so much noise that will get your number recycled and called again (possibly for the same product).

Of course if you’re dealing with a company that violates the law, your best bet is to find a way to block their number. As other comments have indicated, you can take legal action, but only if you’re willing to put in a lot of tedious and unrewarding work.

The thing you have to understand is that the person you’re talking to on the phone is, as a requirement of their job, not allowed to act like a reasonable person. They are required to stick pretty closely to a script, and they are only allowed to respond in scripted ways. Think of it as more like talking to a computer (which the call-center bosses only wish they could employ instead of those pesky human-cogs they have to use now). You have to understand how the system is programmed and respond accordingly.
Anonymous

Easiest way I’ve to deal with telemarketers is to follow two simple rules. (note:requires caller id)

1. NEVER EVER answer the phone if it comes up “unavailable” or “Unknown”

2. NEVER EVER answer the phone if it starts “1-800″,”1-888″,”1-866″ etc. (in the US anyway)

if its ANYTHING remotely worth hearing they’ll leave a message.
In fact, unless I’m expecting a return call from someone I generally don’t even answer if I don’t recognize the number. My friends/family have been on notice for years to leave a message if I don’t answer and I’ll call you back.

*rant* It should be illegal in this day in age for ANY company not display a valid return phone number.
Atvaark

When I moved to California, I had very limited oral skills in English. In order to have my phone line opened at home (or maybe DSL or electricity or whatever…), I asked the phone company to call me back at work for completing the subscription.

Just a few minutes later, I got a phone call from someone who would talk really fast and ask personal data like my street address. I assumed it was the phone company. At some point, I started to doubt. When they asked for my credit card number, I asked: “You’re the phone company, right?” “No sir, it’s the LA Times.” “Oops, sorry, I made a mistake. Bye.” The guy on the line seemed to panic and he was talking even faster when I hung up the phone.

Until I moved back to France the year after, I had the LA Times delivered every morning. Free of charge.
Baldhead

the option to keep the stuff ignores that nothing ever telemarketed is worth having.
Bart4u

Good luck on making it work. This is what happens. They all have a fake caller ID number for a call back or the caller ID will say out if area. The second they sence you are asking for an address or a supervisor they hang up. You can make a report with the National Do Not Call list but that is no good too. They will only investigate if they get hundreds of complaints. So that will not happen. I called and wrote my local Congressman about this problem and I never received no response. You can sue but it is to hard to get the information from them and will be a big waste of your time. The laws need to be changed. Jail time for these telemarketers is required.
Antinous / Moderator

I had a horrible problem with spam-faxers and contacted the appropriate authority, who said, “Yeah, if we get maybe 500 complaints about one business, we might maybe pursue it.” The laws are mostly security theater for your answering machine.
Sayes

I always compliment the marketer on their nice, intelligent sounding, voice and then offer to write them a letter of reference for a real job.
Anonymous

There is also a loophole for banks for some reason. Bank Of America abused the heck out of it.