Telemarketing Fraud

It is unlawful for a seller, salesperson, agent of seller, or a contractor of the seller to willfully use a device, scheme, or art form of communication to misrepresent a material statement of fact by phone to arrange a sale, or exchange of value that was premised on the misrepresentation.

Is a telemarketer defined under Business and Professions Code 17511.9(a) BPC?

Yes. A telemarketer is a subscriber of a call list of residential, commercial and wireless telephone phone numbers not directly acquired from the owner of the phone number for the purpose of providing unsolicited and unwanted offers for goods, services, or donations of value not requested; and calls where there is not an established notion of consent or relationship warranting the phone call.

Does the “Do Not Call Registry” (DNC) apply to Business and Professions Code 17511.9(a) BPC?

Yes. If an owner of a telephone phone number is already placed on the DNC list, or has a specific telemarketer to do the same, and then is called by telemarketer, whether or not that telemarketer has knowledge, and calls there is a misrepresentation of fact because the telemarketer, in the business of trade is attempting to provide an unwanted solicitation, especially if they are given notice of the call being made to number listed on the DNC.

What is the mental state required for a violation of Business and Professions Code 17511.9(a) BPC?

The mental state required for a violation of Business and Professions Code 17511.9(a) BPC is willfully. Willfulness is the conscious awareness that an act is unlawful, and with that acknowledgement desires to have the act completed, while objectively understanding the reasonable and natural consequences of any circumstance that might result. As described under Business and Professions Code 17511.9(a) BPC, the State must prove beyond a reasonable doubt, that the subscriber of a telephone number, is in fact a telemarketer, its agent or affiliate; and by association of trade utilizes techniques to acquire private and commercial telephone numbers; without the owner’s consent; to contact the owners for the purpose of selling a good or service; to induce the owner to transact based on their detriment for personal gain; while reasonably understanding the natural and probable consequences that might result.

Are there any exceptions to a violation of Business and Professions Code 17511.9(a) BPC?

Yes. If you are not a telemarketer; or a subscriber of telephone numbers that: (1) has an established business relationship; (2) calls for a vocational or religious purpose; or (3) use a fax machine or computer.

BPC 17511.9(a) – Sentencing 

A violation of Business and Professions Code 17511.9(a) BPC can be charged as a misdemeanor or felony. As a misdemeanor, each phone call is a chargeable offense, with penalties including confinement not exceeding 1 year in jail with fines not exceeding $1,000 dollars. As a felony, each phone call is a chargeable offense, with penalties including confinement terms of 16 months, 2 or 3 years in prison, with fines not exceeding $10,000 dollars.

What is an example of violations of Business and Professions Code 17511.9(a) BPC?

• The “We Make a Wish Foundation (WMWF), is a 501(C)(3) start-up created to help literacy rates by calling phone owners using an auto-dialer. WMWF president, Yazel, told his staff to call residential homeowners and businesses using this script: “Good morning we are WMWF, seeking donations of books and a $5 dollar donation for our virtual library, to help our kids read”. The script was approved by Yazel, and the WMWF Board of Directors. The foundation has received interests from investment groups to collateralize itself as an internet marketing company. Thereafter, the foundational group changed its business entity status to an S-Corporation. Thereafter, Yazel changed the script to: “Good morning we are WMWF, seeking donations of books and the opportunity of membership into our virtual library group with a $5 membership subscription”. A few callers asked to be placed on the DNC registry; but continued to receive phone calls. Yazel asked told his staff that the if calls ask, “Do the subscriptions go towards the Company’s profits?” The rebuttal in the script should be, “The subscription is not for profit but for membership to a worthy cause”. One of the callers returned the WMWF’s phone call and decided to get a subscription. When he called the customer service representative asked him if he wanted a prospectus mailed to him. The caller hung up and called the police. After an investigation, the police arrested Yazel and the staff members who made the calls at issue.

BPC 17511.9(a) – Defenses 

1. Lack of Consent – The employees were on a frolic and contacted the numbers using a script that was not authorized by management; using techniques not approved.
2. Established relationship – The Statute does not apply because there is an established relationship.

Telemarketing Fraud – Hire Us 

If you are charged with a violation of Business and Professions Code 17511.9(a) BPC, call Law Mart today.