I won a suit against a party that sent me an unsolicited text message
twitter.com
twitter.com
Some of what was said in the tweets regarding your rights and what you have to do to file a claim are, in my experience and opinion, not correct.
The general idea is right, but some of the asides about the law were simply incorrect.
Depending on your jurisdiction, the way you can pursue a case like this is going to vary, so I’m not going to give any hard and fast rules in this comment.
Just a heads up that if you want to try to replicate this, your steps will probably be different.
Not legal advice :)
Can you elaborate? Every source I've seen says that politicians have exempted themselves from the spam laws. e.g. a random google result: https://www.cincinnati.com/story/news/politics/elections/202...
> That's because the National Do Not Call Registry does not apply to political text messages.
If you know a way around this, please spill the beans!
Politicians shouldn't have zero consequences for selling my personal data.
Municipalities run into a similar problem with those awful circulars that pile up on your front stoop: ordinances to prohibit them have been struct down as unconstitutional. And that's not even political speech, generally!
What if texts cost you money per-message though? Isn't that why most places get permission before texting you? Do politicians have a constitutional right to drain your money this way?
Could the constitution not be amended, at least in theory? Or the supreme court create a new interpretation?
Sure, but amending the Constitution for the purpose of permitting the government to impose greater limits on political speech is...going to be a hard sell for a lot of people, and have a high risk if successful of having pretty severe unintended (for non-autocratic supporters of whatever the particular measure is) consequences.
> Or the supreme court create a new interpretation?
Easier than passing an amendment, similar downsides.
They all appear to comply with that older school SMS norm. Who knew?
If you do it for a few, they tend to end overall. Now, instead of getting a few a day (right?!?), I get one out of the blue.
I did not "STOP" Bernie. I like Bernie. I don't like how it went with Bernie and all the people trying for better. Those messages have been considerate, infrequent, etc...
So far, all of the others hit pretty hard and fast, but do "STOP"
This suggests some entities, like Bernie for example, do maintain a list but are not necessarily sharing it. Other entities either share their lists, or will send messages for hire.
Your mileage may vary. Hope sharing these experiences helps.
[0] https://consumer.ftc.gov/articles/national-do-not-call-regis...
Commercial speech can be regulated provided certain requirements are met that are more widely applicable, a four part test is used. See Central Hudson Gas & Electric Corp. v. Public Service Commission. Also under Zauderer v. Office of Disciplinary Counsel the government can compel commercial speech, require advertisers to include factual disclaimers.
So laws like the CAN-SPAM act prohibit unsolicited commercial advertising via txt or email if certain requirements are not met.
I'm not constitutionally required to let political campaigners onto my private property (my home), and I shouldn't be required to receive their text messages on my private property (my phone).
A lot of people agree with you but that’s not typically how it works IRL for USPS either. Generally if you keep trying to deny delivery of junk mail your letter carrier will tell you “you can’t just refuse mail”.
Although I think maybe you are supposed to be able to refuse it, just doesn’t work IRL? People are also supposed to be able to send the mail regardless.
I do think it’s a cost issue. Should cost the standard $0.60 stamp per each bulk mailer (bulk mailers are much cheaper.
Text messages and emails should also cost something reasonable which would dissuade abuse. Perhaps “accepting” a text (or at least not rejecting it) would waive/reimburse that fee so “good” texts could be free? Seems easy for this to be abused though by the body public when temporarily enraged against a corporation/small business.
https://faq.usps.com/s/article/Refuse-unwanted-mail-and-remo...
I agree with your other points. Stop the subsidies. I'm not sure why spam makes me so irrationally angry, but it does.
Generally, there are two subcategories of TCPA claims: DNC (227(c)) and ATDS/prerecorded voice (227(b)). The latter claims are still available against politicians, last I checked. The latter claims regulate the technology that allows blast calls and messaging with pre-recorded messages.
not legal advice
“Issue a notice of demand explaining that you are seeking payment for TCPA violation and give them 10 days to respond. Send mail with signature delivery. (You can't sue without having issued a notice of demand.)”
You do have to serve them once you file the case, but generally, I’m aware of no pre-suit-demand obligation for a TCPA case in small claims court that prevents you from filing.
not legal advice
"Small claims cases require that you ask the other side for payment before you go to court (unless there is a good reason why you cannot). You can ask in person, by phone, or in writing. You will have to tell the court you did this and how on your court form."
It does not specifically exclude TCPA statutory damage, so I think it does apply in this case.
And it does logically apply here too, small claims court is somewhere between an actual court and mediation and it is in place to save cost when possible. So it is reasonable to expect they want an attempt to resolve it before even before to file.
Anything else?
Ultimately, OP was recounting what he did, and, as I said, I think OP did great. But he shared it for a reason, and so I wanted to make clear that everyone’s circumstances and judicial systems may be different. This is why I said:
“Depending on your jurisdiction, the way you can pursue a case like this is going to vary, so I’m not going to give any hard and fast rules in this comment.”
A couple other potential, and admittedly minor, misstatements from OP
Trebling under the TCPA does not necessarily turn on whether you were on the DNC list (as OP states), it generally turns on a showing willfulness.
And winning a judgment does not mean that the Court just seizes the defendants property. I think that was addressed in another comment.
I wasn’t trying to crap on OP. I simply wanted to point out that OP‘s experience was specific, localized, and not universal. I thought this important because OP’s tweets read sort of like a how-to, and I want to educate others to the nuance that may be required in their specific jurisdictions.
not legal advice
Meta: I wish that Twitter had a better format for iterative discussion: "Hey, I just did X, I wonder how broadly it is applicable?" -> people join in with experience and data points offering nuance about the above -> output reference document with rough consensus and nuance. (This is kind of what happened with my Guide to Stock and Options like 10 years ago - I only got it materially right on the third draft after people constructively dogpiled in with the things I got wrong on the first two takes!)
Now back to the thread - is there case history showing whether presence on DNC constitutes (or doesn't) a wilful TCPA violation? My presumption was that an unsolicited text to a DNC number de facto constituted a wilful violation since best practice is to scrub DNC numbers from cold outreach.
Fair, I did not imply that you are, just being genuinely curious.
> In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law.
I don't understand this part, the court page says that you "must" do it. Is there a CA law that prohibits CA court from requiring this? My vague understanding is that many things in judicial system are "customary" or administratively driven. Maybe this is the case, while not required by CA law, but required by courts as an optimization technique.
> And we will set aside a preemption analysis because the TCPA is a federal law for another day.
Ah, this is actually interesting. So the TCPA is a federal law and he used it as a basis for his lawsuit in the CA court. How does it work? Can you bring a lawsuit based on federal law in a state law? I just pulled TCPA [1] and in the PRIVATE RIGHT OF ACTION section it clearly mentions a state court:
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
They are sometimes referred to as “wrong number“ claims, or “reassigned number“ claims. You get a cell phone with a new number, and the old owner of that number was, for lack of a better word, a deadbeat. You spend the next 5 years being hounded by the previous owner’s collectors. This can potentially give rise to Claims under the TCPA
5. [..] courts will seize from them what you are owed
The process to get a court to do this is extremely difficult. It often starts with Debtor Examination followed by filing a bunch of documents to start the seizing process. If the person really doesn’t want to pay the judgement though, good luck. For example, during the Debtor Examination they have to answer truthfully under oath where their bank accounts and other property are. And then as soon as the meeting is over they can move to a different bank.
Getting a judgement is the easy part. Collecting it is the hard part.
https://www.nolo.com/legal-encyclopedia/what-is-debtor-exami...
It really makes it almost impossible to collect judgements in those states for a determined debtor.
Why is there legally allowed spam? Because it's for democracy? I don't care, I don't want to receive calls and texts related to it. Spamming my phone is more likely to make me go out and vote for the opposition out of spite than anything.
You can vote for the opposition if that makes you feel better, but know right now that the opposition, whatever it may be, for any major political office is doing exactly the same thing. Every significant political party has list-making and trading as one of its highest priority goals.
Generally, there are two subcategories of TCPA claims: DNC (227(c)) and ATDS/prerecorded voice (227(b)). The latter claims are still available against politicians, last I checked. The latter claims regulate the technology that allows blast calls and messaging with pre-recorded messages.
not legal advice
Check out TCPAworld.com if you want to go down the rabbit hole!
I did, one time, find the likely CEO of one of these companies, and I called his cell phone late on a Friday night to mess with him. However, I didn't really have 'rises to the level of evidence that you could present in court' type certainty
You simply keep responding that you’re interested. Click their link. Fill out their form. Eventually you’ll get to a real person at a real company that was benefiting from the illegal spam.
I want this in real life. Set a default of a $1 or so. Your carrier gets $0.25, you get $0.75. You can adjust the fee to $0 or $1000. Carrier gets 25%.
"enforcing the laws we have" isn't enough because spoofing exists and many of the spammers operate across borders.
“ The Cox/Jones/Sumco Panama operation appears to be responsible for making more than eight billion unlawful prerecorded message calls to American consumers since at least 2018. The robocalls include prerecorded marketing messages which encouraged consumers to follow prompts to speak with a “warranty specialist” about extending or reinstating their car warranty.
As announced on July 7, the enforcement bureau issued a notice authorizing all voice service providers to cease carrying any traffic originating from the Cox/Jones/Sumco Panama operation consistent with FCC regulations.
At the same time, the Bureau sent cease-and-desist letters to eight voice service provider to warn them to stop carrying this suspicious traffic. The eight service providers have not responded to the letters and so, as provided in the public notice, the bureau is directing all other carriers to refuse to carry this traffic.”
Basically what the FCC decided to do was ID this org, tell the carriers who sell to this org to stop, and if they don’t stop, require other carriers to lock out the carriers who sell to the spammer.
https://www.mykxlg.com/news/national/fcc-targeting-phone-ser...
At that point, the free market gets to decide if it's cheaper to eat the cost of the call (remember, each subscriber sets the amount of the tax), or secure their infrastructure.
Nobody is talking about TSA, what a non sequitur.
EDIT: Parent comment was replaced with something completely different so my reply makes no longer makes sense, but I'm leaving it unchanged.
Different situation. Bulk mail is not illegal, in fact the USPS subsidizes it. Spam calls ARE illegal. Hopefully phone carriers will not give discounts for explicitly illegal uses of their networks, but we can deal with that later if it happens.
I think that's assuming that things always go poorly, and that there is no possible way for it to go well. Sometimes things go well.
A lot of carriers has been billing by minute since the dawn of mobile telecom. And it's still in place in many (most?) countries. Only US/Canada/Mexico are used to unlimited phone calls.
It was even more advanced -- Recepient could choose how much sender should pay, and sender could agree to that (or do it non-interactively, i.e. send an email message with "Max-To-Pay" header, same as you can do it currently with international SMS).
Unfortunately, the proposal never got any adoption, because us, email users and providers.
Who pays the tax and how are you going to collect? Do you pay to receive a call? (I know this used to be normal practice in the US, but it isn't where I'm located)? If the call begins or ends in a different country, who pays the tax? Would this make calls unaffordable for poor folks - and what about services like google voice? Are some exempt (like non-emergency hospital, school, and police calls?)
Why wouldn't it just be a charge on your phone bill and included in there?
Edit: for instance https://imgur.com/D780jAX -- after I naïvely responded to the first few like this and got their pivot, I started to recognize the style.
Because my guess is it won't be that simple.
You can place ACH blocks on accounts, at some banks anyway. I don’t know if the bank will give you the transaction information if a transfer is attempted. If they will, shouldn’t it be possible to set up a honeypot account in order to get the ACH info? Is that info enough to trace back to the spammers?
This opens up other legal questions though. It’s entirely possible that you could then be on the hook for non payment or something.
Just a plain old scam attempt.
Here in Germany if you have a court order and that isn't payed, the bailiff/marshall visit the recalcitrant party and confiscates cash or valuable items until the order is settled. (At least for companies; there are some regulations that individuals cannot be brought below the poverty line by such actions).
Maybe a lawyer could comment on feasibility of this.
It was incredible. But somehow they got shut down when judges and cops didn't like what they were doing.
For texts, you can probably parse out a link they want you to click, but I would expect them to be using a WHOIS guard.
Phone calls are even worse, because you'd have to interact with the rep enough to get info on who's making the call.
If it starts filing bogus lawsuits, whoever's running it may end up paying a whole bunch of attorney's fees to people defending themselves, get banned from filing lawsuits, and be more annoying to the general populace than the spammers are. I'd rather get a bunch of spam calls than deal with a single unfounded lawsuit.
I hope exact violation means that particular unsolicited text message and not the exact violation of sending unsolicited text messages.
Phone users can activate Do-Not-Disturb by calling or SMSing their provider. Users can opt for complete blackout of marketing messages or opt into "categories" where they would be open to marketing (like Real Estate, Auto etc). Marketers have to register themselves and the phone numbers / id they use to do the marketing. If a marketer contacts someone on the DnD list, a 3 strikes rule applies - warning, fine, ban. A marketer who uses an unregistered number (a business phone or their own personal number) to make a marketing call will be warned, fined and will face disconnection of service on repeated violations.
Users can file a complain by calling or sending a simple SMS to 1909 in the following format: complaint / nature of call, phone number or SMS id, date as dd/mm/yy. The service provider will then take the action. E.g. - https://imgur.com/uPO1HQS (screenshot of a list of complaints filed by me and the action taken by the service provider).
> 2. Issue a notice of demand explaining that you are seeking payment for TCPA violation and give them 10 days to respond. Send mail with signature delivery. (You can't sue without having issued a notice of demand.) $500 damages, treble if you're on the Do Not Call registry.
> Note: They don’t need your permission if you haven’t put your mobile number on the Federal Do Not Call list, but don’t worry, if you haven’t we tell you how to do that too!
[0] https://www.isipp.com/how-to-make-phone-and-sms-spammers-pay...
I assume in your example a court would consider the employee to be the one sending the message.
Edit: And looking at the wording, this may mean no cybertrucks for anyone because the sender has to be a business (simplified) for the law to apply.
Unfortunately, the ability for individuals to sue ("private right of action") was delayed in 2017, and delayed once more in 2019, IIRC. Apparently, companies complained that the max $1 million per day could be achieved by sending 5,000 unsolicited emails, which would be too easy to do if there was a mistake in their system or a new sales rep ham-fisted this without realizing the repercussions.
I love to see posts like this though, I'll be sure to attempt this if I ever get SMS spam here in USA.
The US has a similar problem with CAN-SPAM. Ordinary citizens cannot sue.[1] All you can do is complain to the FTC, after which of course nothing will happen.
It makes these laws rather toothless if they're not actually enforced.
[1]: https://www.law.cornell.edu/wex/inbox/can-spam_and_consumer_...
Maybe I'll just bite the bullet and try.
[0] https://www.isipp.com/how-to-make-phone-and-sms-spammers-pay...
I've tried a number of times to get identifiable information from those folks with little success. Friend of mine went through the process and met with someone on site at the property he was contacted about. He first had to let them send an inspector. The inspector was paid by a proxy which was not linked to the company that wanted to buy the property. The person he met with on site representing the property buyer was a lawyer, and that's who he had to go after. He ended up getting the $1500 after all of that effort, and told me the lawyer laughed and said the cost was just passed onto his client. It was a lot of effort.
>7. Cash the check and dismiss the lawsuit with prejudice. (You're agreeing to not sue them again for the exact same violation.)
if he agrees to not sure them for it....they can just keep sending them and probably increase the frequency? I mean. he could just block the number....but I guess he wanted 1k for his time and to prove it was doable.
> $60
> "expensive"