Verizon Sues Telemarketers for Calling Wireless Customers
Posted by Ronnie London
In what is believed to be a first in the U.S., Verizon Wireless filed two separate lawsuits against telemarketers Intelligent Alternatives and Resort Marketing Trends, alleging that the companies violated the Telephone Consumer Protection Act (“TCPA”) and state law by transmitting automated and/or prerecorded messages to Verizon Wireless customers. The suits, filed in New Jersey (where Verizon is headquartered) and California (where the largest proportion of the calls were received), seek injunctive relief and damages for what the company claims were more than a million calls by Intelligent Alternatives, and more than 200,000 calls by Resort Marketing to Verizon Wireless subscribers.
The TCPA and the Federal Communications Commission’s (“FCC”) rules that implement it prohibit using any automatic telephone dialing system (or “autodialer”) or artificial or prerecorded voice to make calls (other than for emergency purposes or with the called party’s prior express consent) to emergency phone lines, to guest or patient rooms of a hospital, health-care facility, or elderly home, or to any phone number assigned to a radio common carrier (i.e., wireless) service for which the called party pays for the call. With respect to the last of these categories, the FCC rules require in effect that telemarketers ascertain, for all phone numbers they dial, whether the number is assigned to a wireline or a wireless service. Lists of numbers assigned to wireless phones are commercially available, as are lists of numbers that consumers have transferred, or “ported,” from their landline to a wireless phone. For the latter, the FCC rules afford telemarketers a fifteen-day “safe harbor” to determine that a number has been ported and thereby placed off-limits under the autodialer/recorded call prohibition.
The strategy of suing telemarketers in an effort by Verizon Wireless to protect its customers is an interesting one. The TCPA authorizes “a person or entity” to bring in an appropriate state court “an action based on a violation” of the autodialer/prerecorded call prohibition or the FCC rules implementing the ban. The most obvious application of the provision is for the called party to bring suit to enjoin the calls or obtain actual or statutory damages (of $500 for each violation). But there is nothing in the TCPA that specifies the plaintiff must be the called party. The TCPA also authorizes state attorneys general (or another official/agency the state designates) to bring civil actions against patterns of calls to residents of the state for violations of the TCPA or the FCC rules. But that provision, too, says nothing about other entities pursuing such actions.
For its part, Verizon Wireless asserts that the calls placed by Intelligent Alternatives and Resort Marketing are a “tremendous invasion of privacy.” It notes that “customers look at their wireless phones as one of the last bastions of privacy that they have.” To the extent that aspect of wireless service is a selling point for subscribers, cellphone providers like Verizon Wireless may have a protectable interest in defending that feature of their services.
If the suits Verizon Wireless has filed succeed, they may serve as a model for other providers of communications services subject to laws like the TCPA to file claims that seek to protect consumer privacy. In this regard, Verizon Wireless obtained a permanent injunction last August (2004) against a group that transmitted unsolicited text messages to Verizon Wireless subscribers. “Private attorneys general” in the person of companies with the size and resources of Verizon Wireless would be a substantial complement to enforcement efforts that otherwise fall exclusively to the FCC, the Federal Trade Commission or state regulators to combat broadscale telemarketing efforts such as those in which Intelligent Alternatives and Resort Marketing are alleged to have engaged.