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Residents Have Fighting Chance Against Intrusive Telemarketers : Consumers: A little-used federal law offers protection from pesky telephone sales pitches.


People worn out after a long day's work often have an uninvited dinner companion: a ringing telephone bringing a solicitation for charity or someone selling a whazzit.

At one time, recipients of telemarketing calls could do little. But a little-used law offers hope of expanded privacy.

The federal Telephone Consumer Protection Act, which took effect in 1992, provides for consumers to notify marketers that they do not wish to receive the calls, and authorizes lawsuits of up to $500 for each unwanted call and up to $1,500 each time a caller willfully or knowingly violates the regulations.

In order to take advantage of the law, when telemarketers call, consumers must say they do not accept telemarketing calls and must ask the caller not to phone again. Companies receiving that message must keep a "do not call" list and may not phone the consumer again for 12 months.

To provide evidence for a lawsuit, consumers should also "jot down the date of the call, the time, the company, what they're selling and the operator's name," says Michael Jacobson, head of the Center for the Study of Commercialism in Washington.

In what may be the first successful suit under the law, Jacobson sued Citibank Corp., which was telemarketing its credit cards, for $2,000 and settled out of court for $750 in December.

When the Associated Press reported Jacobson's settlement, the nonprofit center, which opposes what it regards as the over-commercialization of society, received 3,000 requests for its stop-the-calls kit.

"There are lot of furious people who are sick and tired of being pestered by marketers," Jacobson says, adding: "This is not a scientific study, but I think people perceive the main offenders as being banks and newspapers."

Suits can be filed in many state courts, most easily in small claims courts by filling out a standard, one-page form.

Most small claims courts are part of the municipal courts listed under county government sections in the front of telephone books, and court clerks can answer questions about procedures.

Determining who to name in the complaint was the difficult part of the case for Jacobson.

"Citibank is headquartered in New York and has a registered agent in Washington and has its credit-card operation in South Dakota," he says.

"The lawyer who represented me on a pro bono basis made the calls to figure out who should be served with the papers."

(In small claims courts, parties are allowed to consult with lawyers outside court, but attorneys are not allowed to represent them during hearings.)

In Los Angeles, the filing fee is $15 and the maximum award is $5,000. The average wait for a case to be heard here is 40 days.

Consumers may also take steps without resorting to the legal system.

For $20, call recipients may join Private Citizen in Naperville, Ill. This consumer group tells 1,200 telemarketers across the country that its 2,600 customers don't want to be called. Telemarketers may subscribe to the list at no cost.

The Direct Marketing Assn. of Farmingdale, N.Y., also provides a list of consumers who want to be left alone. The trade group charges no fee for its Telephone Preference Service and doesn't say how many telemarketers order its list. Only 82 telemarketers were subscribers in 1991, according to testimony at congressional hearings on the Telephone Consumer Protection Act.

Robert Buchan of Troy, Ohio, has designed a call-screening device to warn off commercial callers. The machine answers the phone with a message warning all callers that telemarketing calls are not accepted and asks the commercial caller to place you on the do-not-call list.

The message also gives a touch-tone number that family members and friends may use to ring through during the message. Telemarketers who hear the message and ring through are already in violation of the law.

Prices for the machine from Buchan's Prefone Filter Co. range from the JunkBuster at $89 to the Filter Deluxe at $149.

Critics say the Telephone Consumer Protection Act won't be a panacea. Warnings to telemarketers remain in effect only for a year, so marketers can call again 12 months later. And critics add that lawsuits will be rare.

"People in general are reluctant to use that as a remedy," USC marketing professor David Stewart says.

"Just going and filing, in and of itself, is probably more time than most people want to spend on the types of issues that they might want redress on."

"It's expensive to sue," says Herschel Elkins, head of the consumer law section for the California attorney general's office.

"The remedies are not that clear and the companies that are the worst won't be around for you to bring action. The most troublesome telemarketers are calling from out of state."

The future may solve the problem, Stewart says. Most consumers don't object to calls in general, but to the calls on items that don't interest them.

Stewart anticipates that the United States may adopt a system similar to Minitel in France, which allows shoppers to pursue items they want.

"Minitel is not unlike CompuServe and Prodigy, the on-line computer services, except it's through the telephone company," Stewart says.

"There are about 15,000 products and services available at your finger tips. Rather than have a lot of calls coming in, customers seek the products and services they want.

"My prediction is that's the way we're headed in this country. Firms will put out large menus in some format, whether it's telephone access, interactive computer systems or interactive television," Stewart says.

"In this country, it looks like it will be interactive TV like the home shopping networks, but that remains to be seen."

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