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An accusation of fraudulent telemarketing is a serious charge. Someone accused of such a crime is facing a possible lengthy jail sentence and a fine. With seemingly unending amounts of telemarketing and robocalls, legislatures and regulators are looking to crack down on telemarketers that they consider fraudulent. In addition, he or she is facing financial ruin, disrupted family life, and isolation from friends and neighbors.
If you are facing a state or federal investigation related to telemarketing fraud, call us now. Your situation is serious; our lawyers are serious.
The Telephone Consumer Protection Act
In 1991, Congress passed the Telephone Consumer Protection Act, or TCPA, to protect consumers from predatory telemarketers. When Congress passed the TCPA, there were concerns that a telemarketer would call someone during dinner time in an attempt to sell that person a product or service. Times have changed.
How does the TCPA apply today?
Times changed drastically from when Congress initially passed the TCPA. There is an abundance of cell phones; marketers can use robocalling to contact potential customers both via phone and text; using an automatic dialing mechanism to reach several thousand people is much cheaper today; marketers have access to more information online today.
What’s more, telemarketers of the past were large companies that targeted a specific demographic; telemarketers today can be a few guys in their garage who purchase robocall technology and contract with a call center in India.
In addition, robocalls use targeted spoofing technology where the incoming call uses a local number to call a customer, which gives the impression that it is a local call. The combination of technological advancement and lower telemarketing costs have substantially increased telemarketer activity.
Here are the basic TCPA restrictions:
- Call with an automatic telephone dialing system or an artificial or prerecorded voice to an emergency number, a hospital or similar venue or to anyone who has to pay for the call;
- to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice unless there is an exemption;
- to use any fax machine or computer or similar device to send an unsolicited advertisement to a fax machine;
- to use an automatic system where two or more telephone lines of a multi-line business are engaged simultaneously.
With cellphones, the person receiving the call has to pay for the call. Therefore, a robocall to a cellphone is generally illegal in the United States. Robocalls to landlines are generally legal. Calls that purely consist of information (i.e., that your kids’ school has an early dismissal) are also generally legal.
Note that robocalls, in this context, do not only apply to pre-recorded or artificial voices; robocalls include anyone soliciting business via automatic dialing. Therefore, if someone calls a cellphone without the consumer’s consent to sell a product, the caller violated the TCPA and can be prosecuted.
The FCC Response to Robocalls
The Federal Communications Commission, or the FCC, is also cracking down on telemarketing fraud. In fact, the FCC’s Consumer and Governmental Affairs Bureau deputy chief Mark Stone leads a team of investigators who go after violators.
Last May, the FCC fined Adrian Abramovich $120 million for running a fraudulent telemarketing scheme. Abramovich, who lives in the Miami area, operated a scheme wherein a robocall claiming that it sold on behalf of well-known hospitality companies such as Expedia, Marriot, Hilton, and TripAdvisor and asked consumers to press “1” if interested.
When a consumer pressed 1, the call was routed to a call center in India who try to sell timeshares to consumers. No well-known hospitality company was involved with Abramovich and none of those companies provided permission to use their names.
Despite Abramovich’s claims that the fine was outrageous, the FCC deemed the fine as fair. Abramovich used ID spoofing to suggest that a local business was calling and fraudulently used names of businesses without permission. In fact, TripAdvisor received numerous complaints about selling timeshares, which it was not selling. Based on the circumstances, the FCC severely punished a violator.
FCC chairman Tom Wheeler emphasized how robocallers are required to have prior consent before calling a cellphone. To that end, Chairman Wheeler sent letters to wireless carriers requesting that they provide call-blocking mechanisms for robocallers at no cost to consumers.
Attorney Generals Respond to Robocalls
In December, a group of forty state Attorney Generals, including the Attorney Generals from New York and New Jersey, convened to discuss the seemingly endless amount of robocalls. Gordon J. MacDonald, the Attorney General for New Hampshire, stated:
“Robocalls are not only disruptive and bothersome, but they also allow scammers greater access and the ability to prey on our most vulnerable citizens. That is why Attorney General [Josh] Stein [of North Carolina] and I began working with attorneys general across the country more than a year ago to address this growing problem.”
“In order to see a true reduction in these calls, we must apply the most effective technology available while providing greater public education, and taking appropriate enforcement action to reduce and eliminate these troubling calls. The coalition is actively engaging the telecom companies to identify and implement solutions as quickly as possible.”
Clearly, this coalition of Attorney Generals is serious about prosecuting people that they believe use robocalls to scam people.
The Federal Trade Commission’s Response to Robocalls
The Federal Trade Commission, or FTC, is a government entity created to protect consumer interests. In 2018, it listed over 235 million numbers on its Do Not Call registry. In 2018, the FTC received close to 6 million complaints about telemarketers who violated the Do Not Call registry, with over half of those complaints about robocalls. With respect to robocalls, most complaints were about robocalls offering debt relief services.
The FBI Response to Robocalls
The Federal Bureau of Investigations, or FBI, provides consumer education for dealing with telemarketer fraud. The FBI suggests that consumers be wary when telemarketers use catchphrases like “you must act now” or “claim your free gift” or “you can’t afford to miss this opportunity” and the like. The FBI also recommends not buying from a company that you are unfamiliar with and get information about the telemarketer’s identity, like name and address, before completing a sale.
The Department of Justice’s Response to Robocalls
The Department of Justice, in conjunction with the FTC, has prosecuted several people and companies that it claims violated telemarketing rules. These prosecutions generally occur when numerous people complain about robocalls, prompting a joint Department of Justice/FTC investigation into the robocalls.
Who can be found liable for telemarketing fraud?
Anyone can be liable. If someone provides a fraudulent service or product via telemarketing, then that person can be liable. If someone sends out a robocall to cellphones, then that person can be liable. If a telemarketer calls someone on the Do Not Call list, the telemarketer may be subject to liability.
In legal terms, a mistake of law is not a defense. This means that a claim of not knowing the law is not a valid defense. A telemarketer may not know that sending a robocall to a cellphone is illegal. Such lack of knowledge is not a defense in a court of law.
How do you avoid this issue?
The easiest way to avoid telemarketing fraud is to know the rules and play by the rules. If you are marketing your services or a product, only call landlines; do not call cellphones; make sure that the robocalls do not include numbers on the Do Not Call list.
Telemarketing Fraud in the News
- In 2016, the Department of Justice prosecuted a company for making 1.3 million calls to people on the Do Not Call list. The company claimed that it could lower energy bills by 14% and attempted to sell customers solar panels. The company also misidentified itself on the caller ID, according to the FTC.
- In 2017, the Department of Justice arrested William Nanery for wire fraud in connection to fraudulent telemarketing. Nanery ran a business that provided mass mailings to customers where there were promises of large prizes. Some people receiving these letters responded. Nanery then took that information and sold it to telemarketing companies. That information is important because it identifies people who are more likely to respond to robocalls.
- People often receive threatening robocalls that attempt to induce the person receiving the call to act immediately. An example is a computer generated voice saying that there is an IRS case open so the person must act immediately. These calls claim that there is a problem and it can be resolved if the person acts immediately. Several prosecutions related to these circumstances have been filed recently.
- People involved in selling timeshares are often targeted for prosecution for telemarketing fraud. Often, those involved in the hospitality business and seeking customers will use mass communication to seek new customers. Last week, a business owner was sentenced to 18 months in prison for cold-calling timeshare owners claiming that they had buyers for their timeshares. The company asked for $1,000 to $3,500 upfront for getting them in touch with customers. In reality, there were no customers.
- As mentioned above, the Abramovich telemarketing fraud case resulted in a shocking $120 million fine.
How to Defend Against a Charge of Telemarketing Fraud
- First, if you are charged with telemarketing fraud understand that it is merely an indictment. An indictment does not mean that you are guilty. The prosecution has the burden of proving your guilt beyond a reasonable doubt; you are not responsible for proving your innocence beyond a reasonable doubt.
- Second, being annoying is not a crime. Even though many people find telemarketing annoying, being annoying does not mean that you should be subject to federal prosecution.
- Third, your lawyer can apply various strategies to defend against telemarketing fraud. One strategy is insufficient evidence. Just because someone received a phone call on his cell phone from a number does not mean that you are behind the call. Today, there are several sophisticated devices that people can use to create a robocall.
In fact, it is very easy for a small group of people to send out millions of robocalls. To successfully prosecute you for fraud, the prosecution must demonstrate that you are behind the robocalls. If there is a question whether it was you or someone else, then such evidence is insufficient.
Similarly, the prosecution may have mistaken identity. As mentioned, it is not difficult to create a robocall scheme. Almost anyone who is tech savvy can, with a little help, send out mass calls. Therefore, the prosecution must demonstrate that it was you who was involved.
However, the authorities may have difficulty tracking you and positively identifying you as the culprit. Your lawyer should challenge the prosecution to prove definitively that it was you and not someone similarly situated.
Looking for an Attorney? – Call Us Now
Charges of telemarketing fraud can have a devastating impact on your family, your business, and your future in the profession.
That is why you need an experienced federal criminal defense attorney.
Our attorneys understand the seriousness of federal prosecutions and can help you understand the charges that are being brought against you. We can accompany you to interrogations and ensure that your rights are not violated. Ultimately, our goal is to help you establish a legitimate defense.
We have the knowledge and background to successfully defend anyone prosecuted for telemarketing fraud. Our experience includes representing industry and corporate clients in cases like these.
If you or someone you love has been charged with a federal crime, call our attorneys for a free legal consultation.