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Can I be sued for talking dirty to a telemarketer?

Posted by Neil Shouse | Jul 12, 2016 | 0 Comments

With so many telemarketers ignoring the Federal Trade Commission's National Do Not Call Registry, many people have begun taking matters into their own hands. Techniques we have seen touted on the internet include:

  • Deliberately wasting the telemarketer's time,
  • Cussing,
  • Blowing a whistle or air horn into the phone,
  • Threatening the telemarketer, and
  • Talking dirty to the telemarketer.

But are these techniques legal?

Telemarketers threaten to sue

Recently, some telemarketers have begun fighting back by telling people they can be sued for doing these things. For the most part, they are wrong.

There is no law against talking dirty to or a cussing at a telemarketer who calls you. And obviously, there is no law against wasting someone's time on the phone, unless it is a government official or emergency worker. (See, for instance, California's "Resisting Arrest" Law, Penal Code 148(a)(1) PC).

However, harming or threatening to physically harm a telemarketer is another story—even if you cannot actually carry out the threat. Threatening a telemarketer could subject you to criminal penalties. Examples of state laws against making threats over the phone include:

California's “criminal threats” law -- California Penal Code 422 PC;
Nevada's "terrorist threats" law -- NRS 202.448, and
Colorado's “menacing” law --18-3-206, C.R.S.

There are no reported cases in the United States of telemarketers successfully suing people for damaging their hearing. But the noise from an air horn can exceed 130 decibels – enough to cause pain and residual long-term damage to hearing. And recently, a German telemarketer sued for hearing damage caused by a whistle and was awarded €800 (over $900) for tinnitus and hearing loss.

A better way to fight unwanted telemarketing calls might be to sue telemarketers who violate the Telephone Consumer Protection Act (TCPA). The TCPA provides remedies of $500 per violation for, among other things:

  • calling residential telephone subscribers before 8 a.m. or after 9 p.m.,
  • failing to identify themselves, or
  • the use of prerecorded or artificial voice message calls to residences.

The judge may also award you treble (triple) damages if the company intentionally tries to block your right not to receive these calls.

So the next time a telemarketer tells you she can sue you, tell her you can sue her. Now that's what we call talking dirty to a telemarketer!

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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