How to document solicitation phone calls for a lawsuit

They won't stop calling but court won't just take your word that you identified who is calling you and how many times they called. Document your calls like a pro to hold intrusive telemarketers accountable for TCPA violations.

Actual picture of your telemarketer

If you are like many other Americans, telemarketers have harassed you for years and ignored you when you told them to stop calling. They have hunted your phone number to get access to your wallet. Now the shoe is on the other foot. Time for you to hold them accountable, take them to court, and get them to pay you damages. Read this post but I have some additional thoughts on tracking down what telemarketer is texting you.

A quick note - this blog post is just for informational purposes only. Unless and until NW Debt Resolution agrees to represent you, we do not have an attorney-client relationship and this is not legal advice to any specific person. This is general information.

#1 - Get on the national do-not-call (DNC) list

In theory telemarketers should not call you more than once per 12 months if your phone number is registered on the FTC's national-do-not call list. Of course they ignore your registration but you are not entitled to full legal protections unless you register your numbers.

Notice I said you registered your numbers. If your number was already on the list when you got it, or someone else (parent or spouse) registered it for you, I recommend you register it again yourself. This is a legal loophole thing (see 47 CFR § 64.1200(c)(2)) - no need to fall through a loophole because you didn't actually register it yourself. It can be the difference between winning and losing.

#2 - Recording calls

In court, the side with recordings has the upper hand. Said no defense attorney ever: "who are you going to believe, me or your lying ears?" Washington State is a all-party consent state, meaning that when on the phone with your friends, either you all agree to record the call, or you don't record the call.

"Except as otherwise provided in this chapter, it shall be unlawful for any individual . . . to intercept, or record any: (a) Private communication transmitted by telephone . . . between two or more individuals . . . by any device . . . designed to record . . . said communication . . . without first obtaining the consent of all the participants in the communication;" RCW 9.73.030(1).

The law applies to "Private communications", not calls from a telemarketer to sell you things. Further, Washington State recording law has exceptions for

(a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, or (d) which relate to communications by a hostage holder or barricaded person

There is a specific exception for "anonymous" or "repeatedly" calls which fit many telemarketing calls.

How to stay inside the lines

• Recording robocalls is fair game - a robocall isn't an individual. You can turn the recorder off if the caller is a real human.

• Getting a call from an unknown number? Answer the phone with "recorded line" and the telemarketer can hang up if they don't want to be recorded.

• Wiretapping laws don't apply to text messages. Screen shot away!

• Wiretapping laws don't apply to voicemails - they consented to be recorded when they left you a voicemail.

• If it isn't an unsolicited telemarketing phone call don't record it.

The Olympus VN-541PC digital voice recorder is the best voice recorder device we know of. It starts recording almost instantly while many other devices take 3-5 seconds to start.

One function of the device to note. It has different recording qualities. Avoid "LP" as the sound quality is poor.

There may be phone apps for recording. The best solution is one that starts from the phone ringing and captures your greeting.

#3 - Note the calling number, date, time, and your location after each call

Personally, recommend answering unknown numbers with "recorded line" if a suspected a telemarketer is calling. After the call ends, read the calling number, date, current time, and your physical location into the recorder before ending the recording. Months later you won't remember these details and you or your attorney will need this information to either to file the lawsuit or during discovery.

#4 - what am I doing on a call?

Not always but very often telemarketers give fake business names during a call. For example they may say they are with "National Debt Relief" but they just made that up.

I personally have a strategy with unwanted solicitation calls.

• On the first call with a new (to me) fake-business-name-sounding telemarketer, I will greet them with "recorded line", listen to their fake-sounding business name, and will listen to them for 30 seconds. Under RCW 80.36.390(3), most telemarketers must:

"identify him or herself and the company or organization on whose behalf the solicitation is being made and the purpose of the call within the first 30 seconds of the telephone call"

• Then I tell them "please put me on your do not call list" or "please remove me from your calling list".

If they stop calling, life is great! If they keep calling, there is a strong case to be made for triple damages under the Telephone Consumer Protection Act, and they may have set themselves up for an extra $1,000 per phone call damages under RCW 80.36.390(7).

• If they keep calling after I told them not to and I know who they actually soliciting for, I continue to document the calls.

• I do not have to make them stop calling. I may periodically ask them to stop calling but I don't have to threaten them or write them letters or up end my life to make them follow the law.

• If I do not know who they are soliciting for, I move to #5.

I keep the laws I sue under in mind, making sure I document and prove as many violations as possible.

#5 - Identifying who they are calling for

Most of your solicitation calls originate in India or Pakistan or the Philippines. It is very typical for company #1 to dial your number. If you answer the phone they may transfer you to company #2 to screen you as a potential customer. Generally they will pass you to a second phone agent to screen you a second time, and all this is happing in third-world call centers. If they still believe you are a potential customer, generally they will look to transfer your call to an American company for perhaps another round of screening and of course the actual sales pitch. I am looking for the identity of the American company they are calling for.

Of course there are many variations but this model is the most typical. If I don't strike any one of these screeners as a potential customer, generally they will immediately hang up. And most of the calling numbers are fake (spoofed) so if I get dropped, that's it for this call. You'll likely get another chance to identify them though as usually they will call back later.

Pro tip: Don't answer the phone with your name and if they ask "is this Mrs. Jones?" counter with "may I ask who is calling?" Even if they give you a fake name, if they give the same fake name on multiple calls it can help tie all the calls together.

These companies are greedy for customers and fearful of lawsuits so I use a number of strategies to learn their true identity.

• I may go through the sales process. I listen to the sales pitch, and listen for actual company names, or see if they will send me an email, tell me their website, text me contact information, or give me something something solid. Emails are fantastic as it shows a connection to a domain.
  

• I may use an expired credit card if I have one handy. Then I may give the telemarketer the credit card numbers (I make up an expiration date in the future). Typically the phone agent will not run the credit card during the phone call. If they do they almost never know why the credit card was declined. I tell them my bank is always doing things like this and I will have to call the bank and get them to approve the purchase. This is a good opportunity to ask for the name of the company who is trying to charge the card so I can tell the bank that name. This presents the phone agent another dilemma. You can ask for a phone number to call the telemarketer back. Some will give it and some won't. Some will want to stay on the line while you call your bank. I don't do that, I hang up on the telemarketer if I have to. Some telemarketers will call back after a while to try and salvage the sale. This whole process presents many opportunities to get a real phone number or a real website or something solid.
  

• Better then an expired credit card number is a temporary credit card number from https://privacy.com/. I can generate a one time use card with a maximum spending limit. Set the spending limit to $1 and the most you are on the hook for is $1 and Privacy.com will tell you the name of the vendor that charged you (if you set the limits to allow a payment) or tried to charge you. Create and delete new temporary cards at will.
  

• I may play good cop-bad cop. This works well if you have a partner to work with and the item is a bigger ticket purchase (typically they are not calling for a $10 item). I respond positively to their sales pitch as they go along, and when they get to payment, I tell them that my partner handles the finances and it will save everyone time if they bless off the purchase. My partner is the bad cop and starts asking things like does the telemarketer have a website. Sensing a possible sale some phone agents will cough up a website to mollify the bad cop.

I typically don't push them for a company name at the start of a call. At the start of a call if you get pushy for a company name, they have all the power, they can immediately hang up on you and move to another call. The longer you keep them on the phone the more the power shifts to you - they don't want to spend 30 minutes on a call and then drop it over a small bump in the road.

They may be more willing to identify themselves the longer the call goes on but I still do not come off as pushy.

Advanced technique - give them part of what they want, credit card number, social security number or the like, then suddenly realize you should not give those details over the phone if you don't know who you are dealing with. This ratchets up the pressure on the phone agent if he was ever going to be willing to identify the true entity behind the call.

Things I typically don't do on an unwanted solicitation call

Just as important as the things I use to try and identify a junk call telemarketer are the things I don't generally do.

• I don't generally agree to more calls. Most telephone solicitors will ask my permission to transfer my call "even if my number is on the national do not call list" or something silly like that. I am fine with agreeing to that. A few callers will say something like do I agree to future calls or text messages to my number. Most the time I respond with something like "no I don't want to get on a calling list". Knowing they will end the call right then. However if I have received many calls from this same telemarketer, I may say something like "yes but only for the next 30 minutes". I am almost never going to agree to future calls without a time limit. Advanced technique: If they ask for consent to make future calls, I may say something like "I'm sorry, what?" or "I don't understand". Often when they rephrase their request, it won't actually be a request for future calls or it may be phrased in a way I don't have to consent to future calls. In my experience phone agents say the same things all day long and they just want to move the current call along. A little professional dumb can get past my giving consent to future calls.
  

• Sometimes a telemarketer will say something to the effect that they are calling in response to an online inquiry or something similar. I don't feel a duty to tell them that I did not make an online inquiry, but generally I will if they directly ask.
  

• Similarly, if they start the call asking for "Mr. Jones" and my name is Mr. Smith, I reply asking them who is calling. I do not feel a duty to proactively announce to them that you are calling for Mr. Jones and my name is Mr. Smith, but at the same time I typically will not tell them I am Mr. Jones unless I get the sense this caller will hang up without it.
  

• If I played along and really expressed interest in their product (to find out who they are calling for) and/or tried to buy the product, I generally follow this flow diagram.
  

• #1. At the end of the call, tell them I am not interested and for them to put me on their do not call list. A good ending to a call if I played along and identified them during the call. Another specific ending that is excellent is to ask them if they know who transferred me to them. Usually they are going to say they do not know. Then I keep going, that I have gotten a lot of telemarketing calls, I tell the callers to stop calling, but they keep calling. "So today I played along to see who they were calling for and will they stop doing business with this caller who keeps calling even though I tell them I don't want the calls."

• #2. Even if I did #1, if I identified them during the call, I may follow up with an email or letter to the company telling them I am not interested in their product, I keep getting unwanted telemarketing calls soliciting for them, and I want the calls to stop.

• Particularly if I did not do #1, if I they call back, I tell them I am not interested and ask them to put my number on their do-not-call list.

• I don't sue for follow up calls until and after I first did #1 or #3. Or for calls 10-14 days after they received my letter/email in #2.

Advanced Techniques

A step up in investigating illegal calls is using a second phone. A second phone does not need to be fancy but I highly recommend one that can do screen shots, and even better one that can record the screen. Offer-up and Facebook Marketplace are great sources of inexpensive phones but make sure it is an unlocked phone.

Investigation phone numbers need to frequently change and this $5 sim card is an inexpensive way to spend just a few bucks on a phone number. Change phone numbers with another $5 sim card.

I recommend not calling telemarketers back with your real phone, only with your investigation phone. Having difficulty identifying a telemarketer? I recommend calling the calling number back with your investigation phone while you are on the phone with them. A phone number that won't accept calls back after the call is over might be a working number during the call.

Another technique is the "canary trap". Make up a completely new name. Even if you don't identify them during one call, if someone calls back asking for this fake name now you know the callers are connected.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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