Cramming insights from a legal expert

Attorney skeptical of new FCC rules, says consumers also must take responsibility

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Cramming has been a hot topic this week in Washington, D.C., as both the Federal Communications Commission and a Senate panel have condemned the practice of placing unauthorized third-party charges on consumer and business phone bills.

A report from the U.S. Senate Commerce, Science and Transportation Committee estimates that cramming costs phone customers $2 billion a year.

The FCC estimates that cramming charges appear on the phone bills of 15 million to 20 million U.S. consumers annually. On Tuesday the commission proposed new rules aimed at making it harder for crammers and carriers -- which get paid fees for the third-party charges placed on customers' bills -- to benefit from this illegal act.

(Also see: How come no one goes to jail for 'cramming'?)

Will any of this matter? I'm pretty skeptical, but in the course of researching the sleazy art of cramming I stumbled across the website of The Kelly Law Firm, a practice founded by Aaron M. Kelly, an attorney specializing in Internet, business and mobile law.

In addition to his current practice, Kelly worked for the Michigan Attorney General's Office when it negotiated "several multimillion-dollar settlements" against carriers engaged in the practice of "slamming" (cramming's charming predecessor), in which a customer's telephone service is changed without their permission or knowledge.

Kelly was kind enough to answer, via email, several questions. Here's the exchange below. It's interesting reading.

Are the laws against cramming civil or criminal?

Kelly: I believe nearly all of the 50 states have some sort of law against cramming. That being said, the laws against phone cramming are both civil and criminal. At its most basic level, phone cramming is fraud, civilly and criminal. That means in some states a company accused of cramming can be both sued (or possibly on the federal side by the FTC on behalf of victims), as well as charged by a law enforcement agency and prosecuted by the FTC.

This was reinforced in the 2010 federal case, Moore, et al. v. Verizon Communications, Inc., et al., in which the court ruled that trial courts have concurrent jurisdiction over cramming lawsuits even if the FTC has commenced an action over it. In other words, more than one case can be brought against the crammer.

If there are criminal laws against cramming, shouldn't an agency like the FBI also be involved in investigating and prosecuting?

Kelly: Really, any police agency which has jurisdiction should investigate cramming.

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