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I'm not a lawyer, but after researching the Telphone Consumer Protection Act on the web, these NRCC robocalls do appear to be clearcut violations of the FCC regulations based on it, specifically 47 C.F.R. § 64.1200(d)).  As others have noted, that paragraph states that
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.

I can't find any transcripts of the calls right now, but if they don't give their source as the NRCC at the very beginning, they violate (d)(1), and if they don't give their callback number, they violate (d)(2).  From the descriptions I've been reading, many if not all of the calls violate (d)(1) at least.  

This article at slashdot describes in detail how to sue someone in small-claims court for violating these requirements.  This page describes one man's successful use of the law in small claims court.  The second link is about a call from a local landscaping service, so which also violates § 64.1200(e)(1) in the FCC regulations (about not calling at night), but that paragraph applies only to "telephone solicitation", which these NRCC calls don't qualify as.  But that doesn't matter; the violation of (d)(1) is clearcut.

Note that these requirements are part of the original Telephone Consumer Protection Act, and have nothing to do with the Do-Not-Call registry.  The law regulating the Do-Not-Call list provides exceptions for calls "not of a commercial nature" as well as for calls on behalf of non-profits, so I don't believe it would apply here.

Note also that 47 U.S.C. § 227(b)(3) states that each violation of the TCPA allows the callee to recover at least $500, and up to $1500 from the caller, depending on whether the violation was intentional or not.  Here's the quote:

                     (3) Private right of action

        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
            (A) an action based on a violation of this subsection or the
        regulations prescribed under this subsection to enjoin such
            (B) 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, or
            (C) both such actions.

    If the court finds that the defendant willfully or knowingly
    violated this subsection or the regulations prescribed under this
    subsection, the court may, in its discretion, increase the amount of
    the award to an amount equal to not more than 3 times the amount
    available under subparagraph (B) of this paragraph.

I'd guess that the violations wouldn't be found to be intentional in this case, meaning that the fine would be $500 per violation. If the NRCC has made 200,000 of these calls, as people are currently estimating based on FEC expenditure reports, that would make them liable for $100 million in damages.  

We'll never collect that if we file civil suits individually, of course... there's too many victims.  But that's why class action suits were created.  I'm not sure who should lead the effort to file one- the DNC or state attorney generals- but it seems clear that suing the NRCC under the TCPA should be priority number one for the netroots after election day.

Originally posted to gsteff on Mon Nov 06, 2006 at 01:30 AM PST.

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Comment Preferences

  •  But winning elections = "priceless"? (2+ / 0-)
    Recommended by:
    i dunno, philipmerrill

    Form a task force to follow up on this, please.

    •  I have no idea how to do that (1+ / 0-)
      Recommended by:

      I barely participate at DKos, and honestly usually don't like the site that much.  I'm going to call the DNC and some state attorneys general offices tomorrow, but I don't know how "task forces" at DKos work.  A real lawyer needs to verify this anyway, so hopefully one on this site will read this... that will be a prerequisite for any grassroots action.

      •  daily diaries would work (0+ / 0-)

        Just try to keep the ball rolling, for starters.

        Then if you have a couple of regulars who comment on your diaries, e-mail them separately or something to keep the ball rolling.

        In 4-5 days, you can post less frequently. And I only mean daily in the sense that this is the most allotted to anyone. Your allotment - what you do with it - is really a function of you and your diaries become your own minisite at dKos. Hating something or other at dKos is a very common characteristic around here. What the site stands for is that you should take the lead without knocking yourself out more than you can.

  •  Great Slashdot article (1+ / 0-)
    Recommended by:

    I'm glad you did a diary on it.  I've been talking to my friends and relatives about it for days now.

  •  I hate to be a wet blanket.... (0+ / 0-)

    ....but if these bastards have taught us anything: they've shown that law is one thing, but enforcement of the law is something else entirely.

    I would like nothing better than to see these Republiscum hit with an aggregate 100 million dollar fine for their robocall BS.  But that will depend on an honest AG and an honest judge in the appropriate jurisdiction just to start things going.  Then you better believe that the Republicans will appeal any judgement against them and they'll keep appealing until they get it into a friendly court.

    Micro$oft and the tobacco industry have gotten away with far worse than this.

    I'm not saying that there shouldn't be a vigorous pursuit of this....just don't get your hopes up until you see them cutting a check.

    -5.75 -4.72 3.14159 2.71828

    by xynz on Mon Nov 06, 2006 at 02:31:04 AM PST

    •  For sure (1+ / 0-)
      Recommended by:

      Fortunately, the TCPA requires that suits be filed in state courts, which means that we get more than one try.  Even if the GOP can use political pressure in some districts of some states, it won't be able to in all of them.  NH's attorney general has already shown himself to be willing to consider prosecuting based on NH's extension to the do-not-call registry law, which is even more punitive than the federal version.  NH would be friendly territory,and we can shop around for friendly states and friendly districts.  Even modest success like $10 million in penalties would be huge political news, and a huge blow.  The numbers are just that big.

      •  exactly, thanks (1+ / 0-)
        Recommended by:

        The 50 state strategy was a must and one dimension of that is the impact on GOP coffers. Umm, we don't usually play kick them when they're down. But this is that quaint and ancient institution Europeans call the rule of law.

      •  Cool! (2+ / 0-)
        Recommended by:
        papercut, cwaltz

        Then let's be very meticulous and thorough.  It might take almost two years before final judgements are reached and the fines have to be paid. I'd like to see the GOP relieved of around 50 million dollars just in time for the '08 election.

        Wouldn't it be sweet to face a GOP that doesn't have a cash advantage?  

        -5.75 -4.72 3.14159 2.71828

        by xynz on Mon Nov 06, 2006 at 03:32:56 AM PST

        [ Parent ]

    •  It's not about the money (0+ / 0-)

      It's about stopping them.

      Although hitting them in the pocketbook would be very effective. And just.

  •  i'm not a lawyer either (0+ / 0-)

    but your argument makes sense to me, so i will recommend your diary in hopes that a lawyer who knows about this stuff will see it, go thru it, and figure out what to do!

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