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Why robocallers can stalk you on your cell phone

Xiumei Dong | June 10, 2016
Outdated laws make it easy for telemarketers and scammers to have their way.

WASHINGTON – “Do not call” doesn’t work so well anymore. Telemarketers and scammers are finding ways around the Telephone Consumer Protection Act (TCPA), which sought to protect consumers from unwanted robocalls. At the same time, the act is blocking beneficial robocalls, such as those from health care providers.  

“TCPA is showing its age,” said Sen. John Thune, a South Dakota Republican and chairman of the Commerce, Science and Transportation Committee, at a recent hearing called to consider updating the 1991 act.

The TCPA did, indeed, sharply reduce some types of abusive and disruptive telemarketing practices. Companies are now required to abide by “do-not-call” lists and to make solicitation calls only between the hours of 8:00 a.m. and 9:00 p.m.

The new problems center around cell phones. Under the law, automated calls or texts to a cell phone generally require the consumer’s consent. A violation can bring statutory damages of $500 per call, but only if a consumer files a lawsuit. Damages can be tripled if the activity was intentional.

But only one lawsuit is filed for every 1,000 complaints lodged with the Federal Trade Commission, and those are costly and hard to prove, said Margot Saunders of the National Consumer Law Center. “If robocalls were a disease, they would be an epidemic,” Saunders added in her remarks for the hearing. “The current structure of the TCPA does provide some protection, but it does not provide enough.”

Despite the penalties, telemarketers still make millions from the calls, apparently willing to pay any fines as a cost of doing business. “The problem is the robocalls only cost a tiny fraction of a penny for a call, making it cheaper for business to make the calls, than to be careful about who they are calling,” said Saunders.  

New technologies are making telemarketing much easier, cheaper, and efficient. Also, a majority of the calls originate overseas, making them harder to pursue, according to the witnesses and lawmakers at the hearing.

What makes a 'good' robocall

The changes in the works, however, do not crack down on telemarketers. Rather, they try to let in ‘good’ robocalls that the TCPA currently forbids.

Richard Lovich, national legal counsel for the American Association of Healthcare Administrative Management, said the TCPA was blocking pre-recorded alerts about public safety issues and school closures, outstanding debts, healthcare appointment reminders, and credit card fraud alerts. “It prevents them from receiving these communications on the device they prefer, their mobile phones,” said Lovich.  

Since 2011, Lovich testified, hospitals and outpatient clinics have been required to perform post-discharge follow-up with patients to reduce readmission rates and save money. Automated calls are the cheapest and most efficient way to do that.  


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