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Robocalls Banned By Government? Not So Much

Huffington Post Investigative Fund   First Posted: 11/10/09 05:12 AM ET Updated: 05/25/11 03:00 PM ET

Robocalls

It's dinnertime, the phone rings and it might be someone important. Instead, you hear a recorded voice: "Congratulations! You've been pre-approved for a new mortgage!"

The good news is that after years of complaints from consumers, the Federal Trade Commission has now banned telemarketing pitches known as robocalls unless consumers pre-approve of them in writing. The bad news: You might still be badgered by mortgage lenders and some other telemarketers.

Although the FTC put its ban into effect on Sept. 1, the commission has limited jurisdiction. While non-bank lenders, auto warranty companies, sweepstakes businesses and other telemarketers now face up to $16,000 in fines for each illegal robocall, plenty of other types of companies are exempt.

Among the unaffected mortgage lenders are banks and other financial institutions. The ban also does not apply to insurance companies, telephone carriers, politicians, most charitable organizations and purely informational calls such as notice of a flight cancellation. Debt collectors, so long as they contact consumers about actual bills without making a sales pitch, also do not face the restrictions.

The mortgage lenders that are immune from the rule also are the ones most responsible for offering and servicing home loans. Last year, the five largest mortgage lenders were banks or savings and loan companies.

Under the law, the FTC cannot regulate advertising by certain financial institutions, including banks, savings and loans and federal credit unions. The Federal Communications Commission, which also has jurisdiction over deceptive telemarketing, has no such restraints but has not yet banned robocalls altogether.

Some consumer advocates worry that the exempt lenders might bombard borrowers with misleading phone advertisements, especially now that beleaguered homeowners are looking to refinance or modify their mortgages.

Having banks exempt from the rule is "a big gap and it's one of the problems of the limited jurisdiction that the FTC has," said Susan Grant, director of consumer protection for the Consumer Federation of America. "For consumers, there's no distinction" between banks and independent lenders, she said. "It's the same annoying problem."

A spokeswoman for the Better Business Bureau said that most of the robocall complaints it receives concern offers to modify credit card payments and home loans.

Even in the few places where robocalls have been illegal under state law, consumers can't escape them. Although North Carolina largely outlawed robocalls in the mid-1980s, the state attorney general's office received 629 consumer complaints about the calls so far this year.

The FTC first proposed its robocall regulation in 2006, which also happened to be the height of the housing bubble. The year before, the commission had received more than 13,000 e-mails and letters from consumers opposing an earlier plan to loosen the existing, weaker restrictions on telemarketing.

 "We were all getting these calls," FTC staff attorney Craig Tregillus said in an interview. "People were mad as hell." Tregillus said the FTC didn't create its rule specifically to combat mortgage lending calls.

Yet lending groups were among those who pushed the FTC to adopt looser restrictions, records show. 

In a joint comment to the agency, several professional groups whose members use robocalls, including the Mortgage Bankers Association, pushed the FTC to allow prerecorded messages so long as a consumer previously did business with the company. Prerecorded messages, the groups argued, actually enable businesses to "provide a higher level of service to their customers."

If the calls were allowed, businesses would have the "option of using a cost-effective, proven technology to improve their services to customers," according to the comment, which was filed by a telemarketing industry lobbyist.

Other groups that signed the comment included the United States Chamber of Commerce, the Newspaper Association of America and the Consumer Bankers Association.

After the FTC finalized stricter regulations than these groups had hoped for, one mortgage industry blog, Lenderama, warned its readers of the implications.

"The pendulum is swinging towards the consumer - requiring them to actively engage you for services," said a Lenderama blog post in May. "Do yourself a favor," it added, "stay in the FTC 'good guys' group.

The post recommended alternative "marketing strategies that attract and engage consumers," including traditional direct mail marketing, Internet solicitations and social media.

The FTC's new rule does not cover these communications.

Still, the FTC is paying special attention to the mortgage industry. In addition to suing several lenders that falsely claimed to offer government-sponsored mortgage modifications, the commission is considering another rule that would restrict advance fees for loan modifications.

"Scammers are taking advantage of people in a difficult situation - people who are trying to modify their home mortgages or those who are trying to avoid foreclosure," FTC Chairman Jon Leibowitz said at a press conference in April. "We're enforcing the law against these scam artists; we're putting others on notice that unless they change their ways, they're next."

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If you receive a robocall, and you haven't given written permission for the company to contact you, the FTC recommends you file a complaint, either on the donotcall.gov site or at 888-382-1222.



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