Medicare Robocalls Hounded Plaintiff Who Wasn't 'Even Close to Applying,' Says TCPA Suit

Pro se plaintiff Timothy Aguilar of Pasadena, Texas, was “harassed, cussed at" and victimized by the robocalls that solicited car warranties, medical and diabetic services, final expense services, home solar products and accident claim legal services, alleged the complaint. Aguilar referenced a “campaign by NISHD to market its services and or products through the use of pre-recorded telemarketing calls in plain violation of the TCPA, to which Bandwidth, Peerless and Onvoy have initiated and or facilitated with their VoIP call services technology.”

Aguilar had received more than 700 illegal robo/telemarketing calls at the time of the Thursday complaint, it said. Most were transmitted by Onvoy, Peerless, Bandwidth and other VoIP service providers, the complaint said. NISHD engaged in “improper and deceptive telemarketing practices by placing improper and unwanted telemarketing calls” to Aguilar “on a daily basis,” it said.

To promote its services and find new clients, NISHD engaged in a telemarketing campaign to send harassing robocalls soliciting final expense and Medicare services to Aguilar “without proper consent" or previous business relationship," it said. NISHD hired Onvoy, Bandwidth and Peerless to initiate and or promote calls to Aguilar to persuade him to schedule an appointment or “provide personal information to their telemarketers to further their scheme,” the complaint said.

Berken Media promotes itself as an advertising agency on its Facebook page, but “in reality” it generates leads via robocalling to individuals on the do not call registry, the complaint said. Berken generates leads via robocalling to individuals on the DNR, it said. Aguilar received about 87 robocalls from Berken since January, it said.

Defendants Onvoy, Bandwidth and Peerless create recordings for robocalls with artificial, “bot” voices, said the complaint. The robocalls sent prerecorded messages to Aguilar’s phone “spoofing” who was calling on caller ID, it said. VoIP software packages allow the caller to specify the information appearing on the call recipient's caller ID, and Onvoy, Peerless and Bandwidth assisted and facilitated illegal robocalls that used “neighbor spoofing” when calling Aguilar.

Onvoy, Peerless and Bandwidth provide the phone numbers used to make calls, the network through which the calls are placed, the hardware and software needed for the calls and the automated equipment required to make “massive amounts of robocalls,” the complaint said. The three defendants initiate the calls over VoIP, and “on information and belief,” telemarketers in “foreign call centers merely wait for Peerless, Bandwidth, Onvoy to route a live caller to the call center if the recipient does not hang up immediately or ignores the call,” it said.

The three defendants provide “tailored” or “customized” VoIP services that allow robocallers to “place a high volume of calls in quick succession,” the complaint said. They then bill for the duration of completed calls “typically in as little as 6-second increments,” while “ignoring clear indicia of illegal call traffic,” the complaint said.

The defendants also provided customers with direct inward dialing numbers, used for caller ID, the complaint said. The service was “likely provided to circumvent the procedural guardrails of the caller authentication framework of Stir/Shaken that would otherwise mark a randomly generated or used calling number as ‘unverified’ and cause such calls to be blocked from being delivered to the called party at a network level by a downstream provider,” it said.

Defendants Peerless, Bandwidth and Onvoy don’t target a specific audience with their robocalls: “They seem to call everyone,” said the complaint. They have sent “hundreds” of calls to Aguilar about Medicare advisory services, but Aguilar is “not even close to applying for Medicare,” it said. He received final burial expense calls but hasn't sought burial insurance, he said. He also hasn't sought a car warranty but receives a “substantial number” of calls from Berken soliciting warranty, accident claims and legal services, it said.

Defendants received notices, inquiries, warnings and complaints from consumers, the FTC and industry trade groups over the years about fraudulent robocalls “and other suspicious activity” occurring on their systems, said the complaint. The FTC ordered Onvoy parent Inteliquent to stop transmitting illegal robocalls in May 2022, plus Peerless in March 2023, it noted.

Some numbers that Onvoy, Peerless and Bandwidth used to call Aguilar “are now assigned to different telephone carriers and or sellers,” the complaint said. “Rather than shutting down illegal telemarketing practices” on their networks, the defendants “merely sell, license or otherwise transfer the numbers to different companies,” such as Commio, Airus, MCImetro and NUSO “that have no idea these numbers are used as part of telemarketing practices that violate the TCPA,” it said.

In addition to TCPA violations, Aguilar claims violation of the Texas business and commercial code and infliction of anguish and emotional distress. He seeks actual damages and statutory damages of $500 per violative phone call, $500 of additional statutory damages per call, treble damages of $1,500 per call and additional treble damages of $1,500 per call under the TCPA, plus statutory damages of $5,000 per violation under the Texas business code. He also seeks injunctive relief and litigation costs. The defendants didn't comment.