|Janet Garrow, on whether non-profits can be sued for making phone calls that play a pre-recorded message, 2001:||
So I assume that they probably mis-read
the law and thought that because they were a non-profit, there were no rules governing
phone calls made by them using a pre-recorded voice.
Judge Garrow: All right the court would find that the defendant was properly served and brought under the jurisdiction of this court. Based upon the evidence in this court and the law which I had received previously, I will enter a judgment in favor of the plaintiff. A call was made that did not comply with the federal statute, specifically federal regulation 47 CFR 64.1200 (d), there was no return phone number left for Americans for Job Security. So I will grant judgment in the amount of $500, plus the filing fee.
[MP3 here -- audio very poor, need to turn speakers way up]
|2001-2003:||I say some things to reporters about inconsistencies in the courts, that do not make me popular with judges.|
|Janet Garrow, on whether non-profits can be sued for making phone calls that play a pre-recorded message, 2003:||
Judge Garrow: ... subsection (c) excludes telephone calls initiated by a tax-exempt non-profit
organization, so therefore they are not restricted from initiating telephone calls to a
residential line without prior express consent of the caller. And therefore, because they're
exempt, it would make no sense to have subsection (d) apply. And for that reason, I will rule in
favor of the defendant.
Bennett Haselton: But you had a case two years ago where--
Judge Garrow: Mr. Haselton, after I rule, it's really inappropriate to keep arguing your case with the judge; you have the right to appeal and you can do that certainly sir, but that's the ruling that I've made based on the evidence I've been given this morning. OK?
A federal law called the Telephone Consumer Protection Act of 1996 states that companies cannot have a machine call your number and play a pre-recorded message. (This was back before the National Do-Not-Call list said that companies could not call numbers on that list at all, either with a machine or a live person.) The TCPA also states that non-profits can call numbers using a pre-recorded message, but only if they leave a return phone number.
In 2001, for my first Small Claims case ever, I sued the non-profit lobbying group Americans for Job Security for $500 in Small Claims Court (case Y15158) for calling me using a machine which dialed numbers and played a pre-recorded message telling people not to vote for Maria Cantwell. (They had called me on November 6, 2000, the night before Election Day.) Judge Garrow presided over that hearing and awarded me a $500 judgment. If I had made a page about her then, it probably would have been good.
Between 2001 and 2003, however, some other people and I brought a number of cases against spammers in Small Claims court, and received many contradictory rulings from different judges. Some local and national news covered the results of the anti-spam suits, and asked us about the inconsistent results we'd gotten from different courts. In one Seattle Times article I was quoted (accurately) as saying:
For example, one judge told [Bennett Haselton] he couldn't sue in small-claims court unless he had lost money, he said. Other judges have said otherwise.
On another occasion, a judge said that if he got more than one objectionable e-mail from the same company, Haselton could sue for damages only once. Other judges said otherwise.
And judges also have disagreed on whether Haselton can sue a company that has hired someone else to spam on their behalf. One more hitch: District Court staffers have dispensed contradictory information on whether he can sue spammers located outside the jurisdiction, Haselton said.
This was seen by some as embarrassing to the Small Claims court system. So in 2003, when I sued Taxpayers for R-51 for making a pre-recorded call without leaving a return phone number (case Y32174), Judge Garrow ruled this time that I could not sue a non-profit for making a pre-recorded phone call without a return phone number, and seemed very determined not to let me bring up the case from two years earlier in open court.
(Regarding Judge Garrow cutting me off at the end -- for those unfamiliar with Small Claims court, judges do generally allow you to at least ask a question after they make their ruling, if you're asking for clarification. In another case that I sat through, no. Y15577, a defendant did ask after Judge Garrow made her ruling (MP3 available here):
Defendant: How is it so that body tech... auto body repair technicians should be aware of a pre-existing problems with... mechanical problems with the vehicle, and then as the normal procedure would do hundreds of cars a month through the shop, that a normal thing to do after a car is finished is to start it and take it over to a detail shop or alignment shop, and the car seizes and then you try to start it again, the car wouldn't start and you try to crank over and--That is generally how it works -- the judge will let either party ask a question, unless it becomes clear that the party is trying to keep arguing the case, at which point the judge might offer some explanation of their ruling but won't let them keep arguing forever. If a judge cuts you off immediately, they probably don't want you bringing up something that would be embarrassing to them, in which case you should go home and make a Web page about it instead.)
Judge Garrow: Sir, I'm not going to hear additional argument on the case, I made my findings, you may disagree and I understand that, but based upon the evidence I had in front of me that's the finding that I make, and I think ordinary reasonable care of an auto-mechanic shop, they would test the oil, and given the fact that the evidence is that the car was driven 8 miles...
Defendant: But it says that the oil was there. It was lack of oil--
Judge Garrow: Sir, I made my findings, so if you disagree you can appeal.
The two cases that I brought really were identical; both involved a non-profit making a pre-recorded phone call that did not include a return phone number, and then claiming that they thought the law against pre-recorded phone calls did not apply to non-profits. Even the arguments that I made in both cases were essentially identical:
|Bennett Haselton, on whether non-profits can be sued for making phone calls that play a pre-recorded message, 2001:||
Code of Federal Regulations, 47 CFR 64.1200, and this is the part where they thought that what
they were doing was legal because they were a non-profit. 47 CFR 64.1200 (a) (2) says "No person
may... initiate a phone call using an artificial or
prerecorded voice to deliver a message without the prior express consent of the called party,
unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c)."
And section (c) says "The term telephone call in Section (a) of this section shall not include a call or message by, or on behalf of, a caller...
which is a tax-exempt nonprofit organization". But then section (d) says
"All artificial or prerecorded telephone messages" -- including those made by non-profits --
"delivered by an automatic telephone dialing system shall" -- and then part (2) says --
"during or after the message, state clearly the telephone number
(other than that of the autodialer or prerecorded message player which placed the call)".
So, part (a) says that no call may be made using a pre-recorded voice. Part (c) says that that restriction doesn't apply to non-profits, but then part (d) says there are additional restrictions that do apply to all such calls made including those made by non-profits. So I assume that they probably mis-read the law and thought that because they were a non-profit, there were no rules governing phone calls made by them using a pre-recorded voice.
|Bennett Haselton, on whether non-profits can be sued for making phone calls that play a pre-recorded message, 2003:||
Here's what it says: Part (a): No person may initiate a phone call using an artificial
or pre-recorded voice unless exempted by part (c). And then part (c) says,
the term telephone call in part (a) shall not include a caller that is a non-profit
tax-exempt. And then part (d) says All artificial or pre-recorded phone messages
delivered by a dialing system shall state the identity of the caller and then
give the phone number of the caller. So part (a) says nobody can make these calls,
part (c) says the blanket restriction in part (a) does not apply to non-profits,
but then part (d) says that all such calls must include the identity of the caller
and their phone number. So what this is saying is that if you're a for-profit
company or a person you can't do it at all. If you are a non-profit, you can
do it, but you're not exempt from the rules in part (d) which say that
all artificial or pre-recorded message have to include the identity of the
caller and a return phone number.
And I think that's the logical way to read that, because otherwise part (d) wouldn't make any sense. If part (d) only applied to companies and it said "All calls must include the identity and must include a return phone number", then what calls would those include? Because part (a) already says companies can't make those calls, ever. So it wouldn't make any sense to say that part (d) only applies to companies and individuals because part (a) says they can't make those calls at all. So I think that clearly part (d), that restriction also applies to non-profits.
which looks almost like the Judge Garrow chart at the top of the page, except that I'm actually saying the same thing on both days.
(For a more readable explanation of what the TCPA says regarding non-profits who make pre-recorded phone calls without a return phone number, click here.)
Follow-up: I appealed Judge Garrow's ruling to Superior Court, but I lost after the judge dismissed the case 10 days before the deadline that the court gave me for submitting my brief. His clerk said the judge did this so he could go on vacation early.
Judge Garrow heard another of my cases (Y15595) on August 27, 2001 against Akamai Technologies, after I sued them for calling me at 6:30 on the morning on July 2nd. (The Telephone Consumer Protection Act also prohibits telemarketing calls before 8 AM and after 9 PM; the telemarketer apparently thought I was in another time zone. I wouldn't mind most people making that mistake, but I don't cut telemarketers a lot of slack.) Judge Garrow dismissed the case, saying that it was "just one phone call".
While she wasn't particularly rude about it, this does illustrate the fact that judges do sometimes feel free to simply make an exception under the law and not enforce it.