Business and Professions Code 17511.9 BPC - Telemarketing Fraud
California, in response to the significant amount of fraud committed over the phone, has implemented stringent regulations on telemarketers. The Business & Professions Code 17511.9 BPC specifically defines telemarketing fraud as the use of dishonest methods to sell a product or service.
Just about everyone has received unsolicited phone calls with an automatic voice recording selling a product. Using a telephone to sell something is illegal to use deceit or a fraudulent scheme. Telemarketers must follow specific business restrictions.
While most telemarketing calls originate from legitimate businesses selling their products, a significant number are scams targeting the vulnerable and elderly. Telemarketing fraud, characterized by deceit and trickery, is used over the phone to sell something or to commit another type of crime.
BPC 17511.9 says, “Except as provided in Section 17511.8, any person, including, but not limited to, the seller, a salesperson, agent or representative of the seller, or an independent contractor, who willfully violates any provision of this article or who directly or indirectly employs any device, scheme, or artifice to deceive in connection with the offer or sale by any telephonic seller, or who willfully, directly, or indirectly, engages in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with a sale by any telephonic seller shall be punished….”
Business and Professions Code 17500 BPC false advertising is a closely related crime. Depending on the details of the case, anyone convicted of this white-collar offense could face up to three years in prison. Let's review this state law further below.
Telemarketing Fraud - Explained
BPC 17511.9 telemarketing fraud encompasses a range of illegal conduct but typically includes two main elements of the crime, such as the following:
- Willfully engaging in any act of fraud or deceit to sell something or
- Using any device or scheme to deceive in selling something.
This legal definition also includes scamming someone by phone and selling a legitimate product using misleading statements or deceptive tactics to pressure somebody into buying something they don't want. BPC 17511.9 says that any of the following can be charged with telemarketing fraud:
- The company offering the product or service;
- The employee of the company;
- An independent contractor; or
- A third-party agent, such as an independent contractor.
Simply put, anyone who uses a phone to sell something using an unlawful scheme, fraud, deceit, or an act resulting in an unfair benefit when it causes harm or loss can be charged with telemarketing fraud.
What Are the Penalties for BPC 17511.9?
BPC 17511.9 is a "wobbler" that can be charged as either a misdemeanor or a felony, depending on the case details and your criminal history. If convicted of a misdemeanor case of telemarketing fraud, the penalties include the following:
- Up to one year in county jail;
- Up to $10,000 in fines per offense.
A felony conviction carries up to 3 years in state prison. However, the judge could impose a summary or formal probation instead of jail time in either case.
What Are the Defenses for BPC 17511.9?
To prove you guilty of telemarketing fraud, prosecutors prove all the elements of the crime beyond a reasonable doubt.
First, it must be shown that you were a seller, salesperson, agent, or independent contractor authorized to sell. Next, you willfully used a device or scheme to sell something using the telephone, using fraudulent tactics, or defrauding the other person.
Therefore, some of the most common defenses for telemarketing fraud will challenge one of these factors. For example, we can argue that you were not selling anything.
Even if you made the phone calls, there were no false claims, and you were not actively trying to sell a product or service. So maybe we can argue that you believed you were speaking truthfully.
Recall that in telemarketing fraud cases, you must be shown to be willfully attempting to deceive. However, suppose you honestly believed you were making factual statements about what you were selling. In that case, you are not guilty.
Maybe we can argue that there was no fraudulent activity. Perhaps you were a bit aggressive in your sales tactics but didn't make any misrepresentations about your product or service.
There may be opportunities to negotiate with the prosecutor before formal charges are filed, a process known as a 'DA reject.' If you find yourself in this situation, don't hesitate to contact our law firm for a free case evaluation by phone or through the contact form. Cron, Israels & Stark is based in Los Angeles, CA.
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