It wasn't such a good idea when Diversified Consultants Inc., a debt collection agency, started calling Jamie Davis of Cambridge, Mass., two years ago asking about an account belonging to someone named Rosalee Pagan.
Davis, obviously, was not Pagan. He told Diversified Consultants collectors that he did know her, never heard of her and did not want to hear about her, or from DCI, again. Yet the calls continued. From Aug. 1 to Nov. 12, 2012, Davis received 60 calls on his cellphone from the company's collectors.
That's illegal. A debt collector can call your home phone if there's an established business relationship. But after a update to the Telephone Consumer Protection Act last October, a telemarketer or debt collector must have written consent for autodialed or prerecorded calls (and text messages) to a cellphone.
All telemarketing calls, except those manually dialed that do not contain a recorded message, are prohibited under the TCPA without the consumer's prior written consent. Penalties accumulate quickly: $500 for every robocall or unsolicited text message, $1,500 if the telemarketer "willfully or knowingly" initiates contact after the consumer opts out.
So Davis sued. In late June, the U.S. District Court for the District of Massachusetts awarded Davis $30,000 but denied a motion for the treble damages. The two sides are now working on a settlement related to the $1,500-per-call claim. If negotiations fail, the case proceeds to trial.
Rosalee Pagan, wherever and whoever you might be, could have sued, too, if collectors had called her cellphone instead of Davis' without written consent — even if she had, in fact, defaulted on a debt.
DCI acquired the debt owed by Pagan, then paid another company for information about her, including phone numbers. One of those numbers belonged to Davis, which DCI called, repeatedly.
"It's completely brainless and uncalled for," says Sergei Lemberg, a Stamford attorney who represents Davis. "Even [Davis] would tell you, if it's his debt, all right. It's something to talk about. But this guy didn't owe anybody anything. He's a completely innocent victim."
Davis, who declined to talk to The Bottom Line, had to demonstrate DCI used an automated telephone dialer to call his cellphone before he could collect damages. The court's ruling showed how DCI operated: It uploaded phone numbers every day to a LiveVox cloud-based server, which then called those numbers. When someone answered the call, LiveVox would transfer it to a DCI debt collector.
To comply with Telephone Consumer Protection Act, a debt collector must "scrub" its list regularly — eliminating numbers on the federal Do Not Call Registry or consumers who have opted out. The LiveVox system erased numbers daily, but it could store them for up to 30 days.
A DCI vice president told the court the system could dial numbers sequentially, like a Automated Telephone Dialing System, or robocaller, but the company presented an affidavit retracting his testimony. This court didn't care. It considered a system that uploads numbers, then dials them and transfers answered calls to live collectors, also called a predictive dialer, sufficient evidence — though some courts disagree on what qualifies as automated dialing system.
"The definition is very twisting," says Lemberg. "People in the industry know when they're employing an automatic dialer."
DCI also argued that it did not make the calls, that LiveVox was a "technological intermediary." DCI, from its Jacksonville, Fla., offices, declined an interview request by The Bottom Line.
"As a matter of policy, Diversified Consultants Inc. does not comment on current legal actions," says David T. Goodwin, the company's chief compliance officer.
A consumer needs evidence to sue a robocaller. Take a printscreen of each call, says Lemberg. Or simply log each call, date and time, by hand. Or ask your carrier if it provides statements online showing incoming-call information. DCI refused to stop calling Davis, even after he said it had the wrong person and the wrong number.
"People should know better," says Lemberg, "when they are buying information from third-party sources and putting it into their automatic dialer and harassing a completely innocent person. And they're not just harassing him once or twice. They're harassing him over a period of time and after he tells them, 'Look, folks, I'm not her.' It's outrageous."
Remember, telemarketers cannot call your phone, cellphone or landline, without your prior written consent if your name has been on the Do Not Call Registry 31 days or longer. Telemarketers also can't call before 8 a.m. and after 9 p.m., even if you have a prior business relationship with them, and must use Caller ID to identify themselves.
If you're getting robocalls, start taking notes.
"This is real money," says Lemberg. "In this case, they got whacked for [$30,000]. Some of my cases are settled for what is life-changing money for some people. . . . Even after the lawyers get paid, a case like this is real money."