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Lawyer here. I do this kind of work for a client. Good for this guy for taking the fight to the spammers. As we head into election season, a lot of us are going

Lawyer here. I do this kind of work for a client. Good for this guy for taking the fight to the spammers. As we head into election season, a lot of us are going to get unsolicited text messages like this. You too can sue for them! Some of what was said in the tweets regarding your rights and what you have to do to file a claim are, in my experience and opinion, not correct. The general idea is right, but some of the asides about the law were simply incorrect. Depending on your jurisdiction, the way you can pursue a case like this is going to vary, so I’m not going to give any hard and fast rules in this comment. Just a heads up that if you want to try to replicate this, your steps will probably be different. Not legal advice :)

deleted 4y ago
[deleted]
YeBanKo 4y ago
He mentioned the exact jurisdiction where it happened. Can you point at least one thing, that is wrong?
- thathndude 4y ago
  Sure, I know of no jurisdiction that requires a pre-suit demand for a TCPA claim. “Issue a notice of demand explaining that you are seeking payment for TCPA violation and give them 10 days to respond. Send mail with signature delivery. (You can't sue without having issued a notice of demand.)” You do have to serve them once you file the case, but generally, I’m aware of no pre-suit-demand obligation for a TCPA case in small claims court that prevents you from filing. not legal advice
  - YeBanKo 4y ago
    Well, there is an article on this on Californian Court website: https://www.courts.ca.gov/9739.htm?rdeLocaleAttr=en https://www.courts.ca.gov/9739.htm?rdeLocaleAttr=en "Small claims cases require that you ask the other side for payment before you go to court (unless there is a good reason why you cannot). You can ask in person, by phone, or in writing. You will have to tell the court you did this and how on your court form." It does not specifically exclude TCPA statutory damage, so I think it does apply in this case. And it does logically apply here too, small claims court is somewhere between an actual court and mediation and it is in place to save cost when possible. So it is reasonable to expect they want an attempt to resolve it before even before to file. Anything else?
    - thathndude 4y ago
      In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law, and that’s generally not correct in other jurisdictions. And we will set aside a preemption analysis because the TCPA is a federal law for another day. (I don’t know if there is one. But could be.) Ultimately, OP was recounting what he did, and, as I said, I think OP did great. But he shared it for a reason, and so I wanted to make clear that everyone’s circumstances and judicial systems may be different. This is why I said: “Depending on your jurisdiction, the way you can pursue a case like this is going to vary, so I’m not going to give any hard and fast rules in this comment.” A couple other potential, and admittedly minor, misstatements from OP Trebling under the TCPA does not necessarily turn on whether you were on the DNC list (as OP states), it generally turns on a showing willfulness. And winning a judgment does not mean that the Court just seizes the defendants property. I think that was addressed in another comment. I wasn’t trying to crap on OP. I simply wanted to point out that OP‘s experience was specific, localized, and not universal. I thought this important because OP’s tweets read sort of like a how-to, and I want to educate others to the nuance that may be required in their specific jurisdictions. not legal advice
      - YeBanKo 4y ago
        > I wasn’t trying to crap on OP. Fair, I did not imply that you are, just being genuinely curious. > In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law. I don't understand this part, the court page says that you "must" do it. Is there a CA law that prohibits CA court from requiring this? My vague understanding is that many things in judicial system are "customary" or administratively driven. Maybe this is the case, while not required by CA law, but required by courts as an optimization technique. > And we will set aside a preemption analysis because the TCPA is a federal law for another day. Ah, this is actually interesting. So the TCPA is a federal law and he used it as a basis for his lawsuit in the CA court. How does it work? Can you bring a lawsuit based on federal law in a state law? I just pulled TCPA [1] and in the PRIVATE RIGHT OF ACTION section it clearly mentions a state court: A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State If a federal law explicitly allows state courts, does a state court have to listen such cases unless there is a state law that prevents it? [1] https://www.fcc.gov/sites/default/files/tcpa-rules.pdf https://www.fcc.gov/sites/default/files/tcpa-rules.pdf
dweekly 4y ago
OP here. I'm definitely not a lawyer, so apologies for incorrect statements made in the thread. I'd love to learn more about correct framing / case history / rights here to avoid sharing misinformation. If you'd rather provide the feedback privately / off-the-record, my email is david at weekly dot org. Thank you!
- 300bps 4y ago
  The only thing that I noticed was not 100% correct is: 5. [..] courts will seize from them what you are owed The process to get a court to do this is extremely difficult. It often starts with Debtor Examination followed by filing a bunch of documents to start the seizing process. If the person really doesn’t want to pay the judgement though, good luck. For example, during the Debtor Examination they have to answer truthfully under oath where their bank accounts and other property are. And then as soon as the meeting is over they can move to a different bank. Getting a judgement is the easy part. Collecting it is the hard part. https://www.nolo.com/legal-encyclopedia/what-is-debtor-examination.html https://www.nolo.com/legal-encyclopedia/what-is-debtor-exami...
  - dweekly 4y ago
    Ah! Yes, my statement was incorrect. I had observed wage garnishment on the other side of the fence as an employer and had assumed courts would do this processing after a default judgement. This turned out to be a wrong assumption.
    - 300bps 4y ago
      No problem. Wage garnishment is interesting by the way - some states don’t allow it for judgements like this. It really makes it almost impossible to collect judgements in those states for a determined debtor.
game-of-throws 4y ago
> As we head into election season, a lot of us are going to get unsolicited text messages like this. You too can sue for them! Can you elaborate? Every source I've seen says that politicians have exempted themselves from the spam laws. e.g. a random google result: https://www.cincinnati.com/story/news/politics/elections/2022/01/31/tired-political-text-messages-do-not-call-list-wont-help/6613616001/ https://www.cincinnati.com/story/news/politics/elections/202... > That's because the National Do Not Call Registry does not apply to political text messages. If you know a way around this, please spill the beans!
- strongpigeon 4y ago
  I saw that as well on the FTC's website [0]. Curious if you can actually prevent them. [0] https://consumer.ftc.gov/articles/national-do-not-call-registry-faqs https://consumer.ftc.gov/articles/national-do-not-call-regis...
- cwkoss 4y ago
  I would LOVE to be able to sue political spammers. I donated to many candidates in 2016 and have been getting crazy amounts of text spam from pols ive never heard of for the past 5 years. Politicians shouldn't have zero consequences for selling my personal data.
  - tptacek 4y ago
    You will never be able to do so; campaign calls are exempt from FCC rulemaking not because the FCC is particularly warm to political campaigns (though maybe they are), but because the Constitution forbids them from restricting political speech in this manner. Municipalities run into a similar problem with those awful circulars that pile up on your front stoop: ordinances to prohibit them have been struct down as unconstitutional. And that's not even political speech, generally!
    - Archelaos 4y ago
      > You will never be able to do so Could the constitution not be amended, at least in theory? Or the supreme court create a new interpretation?
j0hnyl 4y ago
So, someone hired you to try and monetize their inbound spam? How lucrative is that?
- thathndude 4y ago
  Very. There’s a whole industry around it. Folks on record is saying that this law has made more millionaires in the plaintiff’s bar than any other law. Check out TCPAworld.com if you want to go down the rabbit hole!
deleted 4y ago
[deleted]
tptacek 4y ago
Campaign calls and texts are explicitly exempt from the Do Not Call registry, as they must be.
- sleepymoose 4y ago
  >as they must be. Why is there legally allowed spam? Because it's for democracy? I don't care, I don't want to receive calls and texts related to it. Spamming my phone is more likely to make me go out and vote for the opposition out of spite than anything.
  - tptacek 4y ago
    Because the government's ability to regulate communications is at its absolute nadir when it concerns political speech regarding an upcoming election. Your best bet to press your case on this policy issue is to invent a time machine and plead your case to James Madison. You can vote for the opposition if that makes you feel better, but know right now that the opposition, whatever it may be, for any major political office is doing exactly the same thing. Every significant political party has list-making and trading as one of its highest priority goals.
- thathndude 4y ago
  But they cant use automated means. That’s what allows them to blast out texts and calls with a pre-recorded voice. Generally, there are two subcategories of TCPA claims: DNC (227(c)) and ATDS/prerecorded voice (227(b)). The latter claims are still available against politicians, last I checked. The latter claims regulate the technology that allows blast calls and messaging with pre-recorded messages. not legal advice
poofsoda 4y ago
Related question I’m hoping you know the answer to: can I use this as a recourse against debt collection calls or texts? I get numerous calls and texts for the prior owner of my cell phone number (to whom I have no relation to be clear) that have persisted for ~6 years despite repeatedly informing them I am not the individual they want to contact and asking to be removed from their records.
- thathndude 4y ago
  This is actually one of the most common TCPA claims out there these days. They are sometimes referred to as “wrong number“ claims, or “reassigned number“ claims. You get a cell phone with a new number, and the old owner of that number was, for lack of a better word, a deadbeat. You spend the next 5 years being hounded by the previous owner’s collectors. This can potentially give rise to Claims under the TCPA

deleted 4y ago

[deleted]

YeBanKo 4y ago

He mentioned the exact jurisdiction where it happened. Can you point at least one thing, that is wrong?

thathndude 4y ago
Sure, I know of no jurisdiction that requires a pre-suit demand for a TCPA claim. “Issue a notice of demand explaining that you are seeking payment for TCPA violation and give them 10 days to respond. Send mail with signature delivery. (You can't sue without having issued a notice of demand.)” You do have to serve them once you file the case, but generally, I’m aware of no pre-suit-demand obligation for a TCPA case in small claims court that prevents you from filing. not legal advice
- YeBanKo 4y ago
  Well, there is an article on this on Californian Court website: https://www.courts.ca.gov/9739.htm?rdeLocaleAttr=en https://www.courts.ca.gov/9739.htm?rdeLocaleAttr=en "Small claims cases require that you ask the other side for payment before you go to court (unless there is a good reason why you cannot). You can ask in person, by phone, or in writing. You will have to tell the court you did this and how on your court form." It does not specifically exclude TCPA statutory damage, so I think it does apply in this case. And it does logically apply here too, small claims court is somewhere between an actual court and mediation and it is in place to save cost when possible. So it is reasonable to expect they want an attempt to resolve it before even before to file. Anything else?
  - thathndude 4y ago
    In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law, and that’s generally not correct in other jurisdictions. And we will set aside a preemption analysis because the TCPA is a federal law for another day. (I don’t know if there is one. But could be.) Ultimately, OP was recounting what he did, and, as I said, I think OP did great. But he shared it for a reason, and so I wanted to make clear that everyone’s circumstances and judicial systems may be different. This is why I said: “Depending on your jurisdiction, the way you can pursue a case like this is going to vary, so I’m not going to give any hard and fast rules in this comment.” A couple other potential, and admittedly minor, misstatements from OP Trebling under the TCPA does not necessarily turn on whether you were on the DNC list (as OP states), it generally turns on a showing willfulness. And winning a judgment does not mean that the Court just seizes the defendants property. I think that was addressed in another comment. I wasn’t trying to crap on OP. I simply wanted to point out that OP‘s experience was specific, localized, and not universal. I thought this important because OP’s tweets read sort of like a how-to, and I want to educate others to the nuance that may be required in their specific jurisdictions. not legal advice
    - YeBanKo 4y ago
      > I wasn’t trying to crap on OP. Fair, I did not imply that you are, just being genuinely curious. > In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law. I don't understand this part, the court page says that you "must" do it. Is there a CA law that prohibits CA court from requiring this? My vague understanding is that many things in judicial system are "customary" or administratively driven. Maybe this is the case, while not required by CA law, but required by courts as an optimization technique. > And we will set aside a preemption analysis because the TCPA is a federal law for another day. Ah, this is actually interesting. So the TCPA is a federal law and he used it as a basis for his lawsuit in the CA court. How does it work? Can you bring a lawsuit based on federal law in a state law? I just pulled TCPA [1] and in the PRIVATE RIGHT OF ACTION section it clearly mentions a state court: A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State If a federal law explicitly allows state courts, does a state court have to listen such cases unless there is a state law that prevents it? [1] https://www.fcc.gov/sites/default/files/tcpa-rules.pdf https://www.fcc.gov/sites/default/files/tcpa-rules.pdf

dweekly 4y ago

OP here. I'm definitely not a lawyer, so apologies for incorrect statements made in the thread. I'd love to learn more about correct framing / case history / rights here to avoid sharing misinformation. If you'd rather provide the feedback privately / off-the-record, my email is david at weekly dot org. Thank you!

300bps 4y ago
The only thing that I noticed was not 100% correct is: 5. [..] courts will seize from them what you are owed The process to get a court to do this is extremely difficult. It often starts with Debtor Examination followed by filing a bunch of documents to start the seizing process. If the person really doesn’t want to pay the judgement though, good luck. For example, during the Debtor Examination they have to answer truthfully under oath where their bank accounts and other property are. And then as soon as the meeting is over they can move to a different bank. Getting a judgement is the easy part. Collecting it is the hard part. https://www.nolo.com/legal-encyclopedia/what-is-debtor-examination.html https://www.nolo.com/legal-encyclopedia/what-is-debtor-exami...
- dweekly 4y ago
  Ah! Yes, my statement was incorrect. I had observed wage garnishment on the other side of the fence as an employer and had assumed courts would do this processing after a default judgement. This turned out to be a wrong assumption.
  - 300bps 4y ago
    No problem. Wage garnishment is interesting by the way - some states don’t allow it for judgements like this. It really makes it almost impossible to collect judgements in those states for a determined debtor.

game-of-throws 4y ago

> As we head into election season, a lot of us are going to get unsolicited text messages like this. You too can sue for them! Can you elaborate? Every source I've seen says that politicians have exempted themselves from the spam laws. e.g. a random google result: https://www.cincinnati.com/story/news/politics/elections/2022/01/31/tired-political-text-messages-do-not-call-list-wont-help/6613616001/ https://www.cincinnati.com/story/news/politics/elections/202... > That's because the National Do Not Call Registry does not apply to political text messages. If you know a way around this, please spill the beans!

strongpigeon 4y ago
I saw that as well on the FTC's website [0]. Curious if you can actually prevent them. [0] https://consumer.ftc.gov/articles/national-do-not-call-registry-faqs https://consumer.ftc.gov/articles/national-do-not-call-regis...
cwkoss 4y ago
I would LOVE to be able to sue political spammers. I donated to many candidates in 2016 and have been getting crazy amounts of text spam from pols ive never heard of for the past 5 years. Politicians shouldn't have zero consequences for selling my personal data.
- tptacek 4y ago
  You will never be able to do so; campaign calls are exempt from FCC rulemaking not because the FCC is particularly warm to political campaigns (though maybe they are), but because the Constitution forbids them from restricting political speech in this manner. Municipalities run into a similar problem with those awful circulars that pile up on your front stoop: ordinances to prohibit them have been struct down as unconstitutional. And that's not even political speech, generally!
  - Archelaos 4y ago
    > You will never be able to do so Could the constitution not be amended, at least in theory? Or the supreme court create a new interpretation?

j0hnyl 4y ago

So, someone hired you to try and monetize their inbound spam? How lucrative is that?

thathndude 4y ago
Very. There’s a whole industry around it. Folks on record is saying that this law has made more millionaires in the plaintiff’s bar than any other law. Check out TCPAworld.com if you want to go down the rabbit hole!

deleted 4y ago

[deleted]

tptacek 4y ago

Campaign calls and texts are explicitly exempt from the Do Not Call registry, as they must be.

sleepymoose 4y ago
>as they must be. Why is there legally allowed spam? Because it's for democracy? I don't care, I don't want to receive calls and texts related to it. Spamming my phone is more likely to make me go out and vote for the opposition out of spite than anything.
- tptacek 4y ago
  Because the government's ability to regulate communications is at its absolute nadir when it concerns political speech regarding an upcoming election. Your best bet to press your case on this policy issue is to invent a time machine and plead your case to James Madison. You can vote for the opposition if that makes you feel better, but know right now that the opposition, whatever it may be, for any major political office is doing exactly the same thing. Every significant political party has list-making and trading as one of its highest priority goals.
thathndude 4y ago
But they cant use automated means. That’s what allows them to blast out texts and calls with a pre-recorded voice. Generally, there are two subcategories of TCPA claims: DNC (227(c)) and ATDS/prerecorded voice (227(b)). The latter claims are still available against politicians, last I checked. The latter claims regulate the technology that allows blast calls and messaging with pre-recorded messages. not legal advice

poofsoda 4y ago

Related question I’m hoping you know the answer to: can I use this as a recourse against debt collection calls or texts? I get numerous calls and texts for the prior owner of my cell phone number (to whom I have no relation to be clear) that have persisted for ~6 years despite repeatedly informing them I am not the individual they want to contact and asking to be removed from their records.

thathndude 4y ago
This is actually one of the most common TCPA claims out there these days. They are sometimes referred to as “wrong number“ claims, or “reassigned number“ claims. You get a cell phone with a new number, and the old owner of that number was, for lack of a better word, a deadbeat. You spend the next 5 years being hounded by the previous owner’s collectors. This can potentially give rise to Claims under the TCPA