Bennett Haselton writes " Every year just before election day, I usually get a few phone calls from machines that dial numbers and play a pre-recorded message telling people to vote a certain way. I find these annoying even if I support the side I'm being asked to vote for, and most people don't realize that in most cases you can sue the organizations for making these calls, even if they are non-profits. So, you can make some money while advancing a good cause (i.e. stopping the bozos from doing it again). Here's how to file your case in Small Claims court, how to possibly negotiate an out-of-court settlement in advance, how to argue the case in court, and how to collect afterwards." His essay follows...
Do you HAVE what it TAKES?
Before proceeding, decide if you think the stress is worth it. You're almost certainly stepping outside your comfort zone here.
Small Claims can be frustrating because the rules and procedures vary so much from one judge to the next, and judges differ wildly in how they interpret the laws. Their own biases come into play as well: they usually deal with cases involving people who have actually lost money or have been wronged in a serious way, and they may resent someone coming to court just to sue over a phone call.
In one particular case that provides a good example of what I'm talking about, I sued a spammer who came to court and claimed he never sent the mails and didn't even know how. When the judge stopped berating me long enough for me to continue, I then produced a tape recording of a conversation between me and the spammer, in which I had pretended to be an interested customer, and he offered to send 5 million e-mails for me for $500, and explained how they were routed through China to hide the origin. The judge got extremely flustered for a minute and then started to accuse me of "entrapment" (even though the recorded phone call took place after I had received the original spam), and she never commented on the fact that the defendant had just been caught lying under oath. I hadn't really expected him to go to jail for that, but I thought I would at least win the case; I didn't.
If you go to Small Claims court you have to be prepared to deal with that kind of Twilight Zone / Franz Kafka stuff. But the worst that can happen is that you'll lose.
How the law applies to non-profits
To clarify something important: In general, you can sue non-profits for $500 for calling your number and playing a pre-recorded message, unless in the recorded message they (a) identify themselves at the beginning of the message; and (b) give their return phone number (other than the number of the machine making the call) somewhere in the message. Most pre-recorded messages from non-profits do not meet these requirements, particularly the second one.
The federal law which states this is divided into two parts. The Telephone Consumer Protection Act, section (b)(1)(B), states:
and part (b)(3)(A) states:"It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States... to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)".
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... an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.
Now, part (2)(B) says that the FCC is authorized to make federal rules and may grant certain exemptions to non-profits. The actual rules that the FCC came up with are in the Code of Federal Regulations as 47 CFR 64.1200. The complete text of 47 CFR 64.1200 is here, but the relevant sections that apply are:
(a) No person may: [...]
- (2) Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c) of this section.
(c) The term telephone call in Sec. 64.1200(a)(2) of this section shall not include a call or message by, or on behalf of, a caller: [...]
- (4) Which is a tax-exempt nonprofit organization.
(d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:
- (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
- (2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual.
The wording is important. Section (a) prohibits parties from making phone calls using a pre-recorded voice. Section (c) says that non-profits are exempt from the blanket ban in part (a). But then section (d) says that "All artificial or prerecorded telephone messages" must include a return phone number -- in other words, even if a party is allowed to make pre-recorded calls at all, they still have to conform to the restrictions in part (d).
I think this clearly applies to non-profits as well, for two reasons:
- First of all, part (c) does not say that non-profits are exempt from the entire law, it only says that they are exempt from the blanket ban in part (a) -- it does not say anywhere that they are exempt from part (d).
- Second, there's a simpler way of looking at it: if part (d) doesn't apply to non-profits and other parties that are exempt from the complete ban on pre-recorded calls, then who does it apply to? It doesn't apply to commercial companies, because under part (a), commercial companies can't make unsolicited pre-recorded calls at all, so it would make no sense to have a separate section requiring them to include a phone number.
What to do if you get a pre-recorded call
You probably don't need to keep a portable tape recorder by the phone just to record the call and prove that you received it. If you show up in court and claim that you received the pre-recorded phone call, it's unlikely that the non-profit's representatives, if they show up, will lie through their teeth and claim that it never happened. If they lose in court, all they lose is $500, but if they get caught lying under oath, they could in theory be convicted of a felony. (Although to tell the truth, sometimes the enforcement of perjury laws in Small Claims court is pretty lax.) The important things to note about the phone call are:
- Does the organization making the call identify themselves at the beginning of the message?
- Did they give their return phone number anywhere in the message?
Finding the right party to sue
Even if the pre-recorded message gives the name of the organization, that may not be the actual party that used the machine to make the call. For example I got a call with a message identifying the caller as "Bob Thurston, Washington State Patrol Troopers Association president", but when I found his number and called him, he said the calls were actually being made by a group called Taxpayers for R-51. If I'm doing legwork to find out who made the call, sometimes I say that I'm interested in running my own campaign using a machine to dial numbers and play a message, and I want to find out how they did it. It's not illegal to lie.
Once you're reasonably sure you know the name of the organization that did it, you need to find the address where you can serve the papers on them. There are two broad approaches to this:
- Go to the Secretary of State's website for the state in which the organization is located, go to "Corporations" search, and search on the organization's name. If they are listed as a corporation in the state, there should be an address given for their "Registered Agent" as well. You're done; that's the address you need.
- If that doesn't work, unfortunately the remaining methods are a lot less precise. Your best recourse is to try and find the group using Google, and see if you can locate their street address.
If you found the entity's address through their listing on the Secretary of State website, you're in luck, since companies are not supposed to list a P.O. Box or rented mailbox as their registered agent's address. But if you found the address through Google, it may not be a real street address. If it isn't, this is often where I hit a dead end, and with "only" $500 at stake I usually don't have the time to keep looking.
But if you think you've got their real address, keep going!
Filing in Small Claims
At this point you might be tempted to contact the organization first and negotiate a legal settlement as an alternative to suing them. What I've found however is that for cases this small, organizations usually won't take the threat of a lawsuit seriously until you actually serve them with legal papers, so I wouldn't bother negotiating until you've done that. (Also, if you try to negotiate in advance, this has the added disadvantage that once they know you're going to sue them, if they're a really underhanded bunch of people, they might try to make it harder for you to serve the papers on them.) If you think it's rude to just sue someone out of the blue -- well, shit, they called your house using a machine, didn't they?
So, in Washington at least, you can get a blank Notice of Small Claim form just by sending a self-address stamped envelope (should probably include about $1 worth of postage on the envelope since the forms can be heavy) to the local District Court and requesting the form. Then you can even file the case by filling out the form and mailing it back with a check for the Small Claims filing fee ($25 in Washington), plus another self-addressed stamped envelope. They'll mail you back the forms to be served. You never even have to go to the courthouse.
However, I'd recommend sitting in on part of a Small Claims calendar at the local courthouse to see how it usually works, and to make sure you wouldn't be nervous going through with it if the other side doesn't settle. Then while you're there, you can get the Small Claims form and file the case.
They will give you one copy of the Small Claims form for your records, and one copy that has to be served on the other party within a certain time frame (in Washington, 10 days before the court date). The clock is ticking, so now you have to serve the papers on the other party.
Serving the papers
Before having the Small Claims papers delivered to the defendant, you may want to attach a letter explaining that you're suing them for a phone call received on such-and-such a date. I tend to go that route, since I have nothing to hide anyway, and in any case the more you communicate, the more chance of getting a settlement. So, throw that in with the papers and then get ready to serve the papers on the defendant.
When you filled out the Small Claims form, it probably came with a pamphlet describing how to serve the papers on the other party. I'm describing the rules for Washington State; the rules in other states are similar.
There are two ways to serve the defendant: hiring a process server, or serving the defendant by mail.
Hiring a process server. This is the preferred method if you don't mind spending about $40. (If you win, the cost of service of process is added to the amount of the judgment, so you'll get it back if the defendant pays the judgment.) Using the online yellow pages, just search in and around the city where the defendant lives, for (a) private process servers, and (b) the sheriff's department. I've called process servers and sheriffs in many different cities, and they charge amounts ranging from $10 to up to $150 for substantially the same service, and I've never figured out why. Sometimes the sheriff is the cheapest, and sometimes it's one of the private process servers. But whoever you use, make sure to find out what they require you to send them. They always require a letter of instruction tell them where to serve the papers on the defendant. In addition, be sure to ask them:
- can they serve papers on behalf of a private individual, or will they only do it on behalf of law firms?
- do they require a money order or can they take a plain old check?
Serving the defendant by mail. Go to the post office and have the papers mailed to the defendant by certified mail with a return receipt. Here, you have to make a choice. IF you think the organization will actually show up in court (usually, if they're a well-established group and they don't want to be hit with a deluge of lawsuits because one person sued them and won), then certified-return-receipt is all you need. But if you think they might NOT show up and you want to have airtight evidence that you served the papers on them properly, you need to also send by restricted delivery to a person (i.e. a real human, not a company and not the organization itself) who is an officer of the organization. If you have their registered agent's name and address, that's the person to send to by restricted delivery.
If you send by restricted delivery, it goes out with a little green card attached to it, and if the postal worker is doing their job, they should deliver the envelope only to the person listed as the recipient, and require them to sign the card and write their name legibly above their signature. Then, the green card gets mailed back to you. However, very often I'd find that the cards would come back with illegible signatures and no names or the wrong names. If you use this method, try writing on the envelope: "Attention USPS! This envelope MUST be delivered to the person named as the recipient, they MUST sign for it and their name must be printed LEGIBLY above their signature." I never got around to trying this, since by that time I'd given up on serving papers by mail, and always used process servers.
Basically, the trade-off is that the stricter you want to be about how the papers are served by mail, the greater the chance that it won't work (e.g. if the mailman can't find the person), but the more solid your proof of service will be if they don't show up in court.
If you serve the defendant using a process server, you'll get back an affidavit of service in the mail. If you serve them by mail, you'll get a return receipt that (if the judge accepts it) will constitute your proof of service.
Negotiate with the defendant
Once you get your proof of service back in the mail, now the defendant knows they're being sued, so you can try to negotiate a settlement. This depends on your style, and theirs.
One thing to keep in mind: Don't worry if they threaten to tell the judge that you filed a lawsuit and then tried to "blackmail" or "extort" money from them or "shake them down". Judges encourage parties to settle lawsuits out of court. Unless the judge thinks your lawsuit is bogus to begin with, they're not likely to be swayed by the defendant claiming you tried to negotiate a settlement.
But assuming your efforts to shake down, extort, blackmail etc. the defendant were unsuccessful and they don't want to settle, the next step is your day in court.
Preparing for court
Make sure you bring all of the following:
- Your proof of service (see previous steps)
- A copy of the Telephone Consumer Protection Act with parts (b)(1)(B) and (b)(3)(A) circled.
- A copy of 47 CFR 64.1200 printed out from this link, which shows the text of the law with proper indentation and formatting and makes it easy to read. Circle parts (a), (c), and (d).
- A copy of 47 CFR 64.1200 printed out from the official government site. Just to prove that the stuff you printed out in the previous step wasn't something that someone made up and posted to the Web as a prank. However the way they have it laid out is harder to read.
- A transcript of the phone call that you're suing over, if it was left as a voice mail, or if you managed to grab a recording of it with a handheld tape recorder when you first got the call.
Before the judge appears, a mediator may ask if you want your case to be handled by mediation. If the other party is present, I'd recommend trying this option. The thing to remember about mediation is that if you and the other party can't reach an agreement, you can always go back before the judge. You're not giving up your day in court by agreeing to mediation.
If you can't reach an agreement, or the other party doesn't want mediation, or the other party isn't there, then when the judge calls you to present your case, show the judge your proof of service, your record of when you received the phone call, and the laws that make it illegal and specify $500 in damages.
What happens next varies wildly, depending on the judge. Some of them are polite and some of them yell at almost everybody. Some of them hate junk calls as much as you do, and some of them hate amateur wannabe lawyers clogging the court's time because they saw one episode of Law & Order and thought they could do it themselves. The future at this point is a fog that I can't predict, so I'm not going to try.
All that I can shout blindly into the fog is that judges do appreciate it if you stick to the law, and not try to make any emotional speeches about why you think the issue is so important. (All that happened to you anyway was that you got a phone call, which means you're not going to win the sympathy game anyway, so don't play!)
You're out of the fog? You won? Great, keep reading!
After you win
If the defendant doesn't pay after 30 days, call a local collection agency and ask them what you have to do for them to try to collect the judgment. Collection agencies normally don't charge any money up front, and only take a percentage of what they're able to collect. Unfortunately it can be as high as 40 or 50 percent. The upside though is that they don't get paid if they can't collect, so you know they're going to try.
From that point onward, the collection agency will be able to give you better advice than I can, so my narrative thread ends here, hopefully with you holding a judgment in your hands.
If enough people do this, maybe the problem will go away. Then again maybe all that will happen is that more non-profits will start putting the name of their organization and their phone number in the pre-recorded calls that they make, which means that you can't sue them. Then your only recourse is to call them up and chew them out, so make it good!