THE LAW

Telephone Consumer Protection Act

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There was a time and place in America when people weren't gripped by fear every time the phone rang. Believe it or not, many people enjoyed hearing the phone ring because it was a sure sign that a friend was calling to catch up, a family member was announcing a visit, or some other piece of good news was going to be shared. However, for much of the past three decades the ringing of the phone was associated with panic and anxiety.

When marketers took over phone lines to launch a barrage of annoying phone calls with “special deals” and “once-in-a-lifetime offers,” it seemed like the onslaught would never end. The joy of receiving a phone call was gone; people started screening phone calls to avoid answering a telemarketer; some just quit answering the phone altogether.

In some measure, you are free to answer the phone again without worrying about every call coming from an annoying telemarketer thanks to the Telephone Consumer Protection Act (TCPA).

Overview of the Telephone Consumer Protection Act

The United States Congress passed the Telephone Consumer Protection Act in 1991, with the bill later signed into law by President George H.W. Bush. The law was actually an amendment to a much earlier law covering communications in the US, the Communications Act of 1934. When the original law was passed, telephones weren’t nearly as pervasive in American society, and no one even knew what a telemarketer was or what they did.

The TCPA restricts a number of actions conducted by marketers using telephones and home numbers. Telephone solicitation is limited, as is the use of automated telephone equipment such as automatic dialing systems, artificial or prerecorded voice messages, fax machines, and (more recently) SMS text messages.

Definitions Under the Telephone Consumer Protection Act
A major goal of the TCPA wasn’t just to establish guidelines for telemarketers to follow, with an eye toward protecting consumer rights on the phone, but also to define various telemarketing practices. The following definitions are covered by the TCPA:

  • Telemarketing calls: Any call made by advertisers that offer or market products/services to consumers. Phone calls that are purely informational and/or made for non-commercial purposes are exempt from regulation.
  • Autodialers/Autodialed Calls: An autodialed call is one involving a live person or pre-recorded message that is made with the assistance of an autodialer. These systems produce, store, and call telephone numbers using random or sequential number generators.
  • Robocall: The use of an autodialer system to deliver a prerecorded telemarketing message.

Provisions of the Telephone Consumer Protection Act

Under the TCPA, a number of general provisions were created to regulate the telemarketing industry, from the use of specific equipment to general tactics employed during phone marketing campaigns. The Federal Communications Commission enforces the following rules:

  • Solicitors may not call between 8 AM and 9 PM local time
  • Solicitors must maintain a Do-Not-Call (DNC) list that is specific to the individual company and includes the names of consumers who have asked not to be called
  • DNC requests must be honored for five years
  • Solicitors must also honor the National Do-Not-Call Registry
  • During a phone call, solicitors must provide a name, name of the company they represent, and a telephone number and/or physical address at which the person or entity may be contacted in the future
  • Calls to a residence using an artificial voice or a recording are prohibited
  • Calls may not be made to an emergency number (such as 911), hospital emergency numbers, physician’s offices, health care facilities, cellular numbers, or any service that requires a recipient to pay for the call using automated telephone equipment or artificial/prerecorded voices
  • Autodialers may not call multiple numbers within a multi-line business at the same time
  • May use fax machines to spread unsolicited advertisements

When the TCPA was initially crafted and adopted, Congress left do-not-call rules in the hands of the FCC. Although Congress suggested the establishment of a national DNC, the FCC opted to require each company to maintain its own list. However, in 2003 the Federal Trade Commission stepped in where the FCC failed and established the National Do-Not-Call Registry.

Two additional amendments have been made to the TCPA since its adoption in 1991. The first was the CAN-SPAM Act, which applied specifically to calls and faxes originating from outside the US. The next was the Junk Fax Prevention Act of 2005.

Violations of the Telephone Consumer Protection Act

In the event that you, as a consumer, have been targeted by illegal telemarketing practices, you have the option of pursuing legal action against the offending company. Any telephone service subscriber may sue the offending telemarketer for a maximum of $1,500 for each violation or recover actual monetary losses incurred, whichever figure is higher. You can also seek an injunction against future calls from that business.

There is an unusual provision with the TCPA as it applies to legal recourse on the part of individuals. Even though the TCPA is a federal statute, consumers can bring suits against offending companies in state courts. In fact, most TCPA litigation is filed at the state court level, rather than the federal level.

The language of the TCPA created a private right of action that left jurisdiction over TCPA violations unclear. In 2012, it was decided by the Supreme Court that “the TCPA’s permissive grant of jurisdiction to state courts does not deprive the US district courts of federal jurisdiction over private TCPA suits.” In the end, cases can be heard in front of state courts or federal courts.

Seek the Help of TCPA Professionals

Like any federal law, the language and complexity of the TCPA makes it difficult for most people to fully understand. If you believe you’ve been the target of TCPA violations, we encourage you to contact a legal expert from Fair Debt Lawyers. Our lawyers understand the TCPA, and can help determine the validity of your argument. If we discover that a violation occurred, we can then represent you in a private lawsuit against the telemarketing company in violation of the TCPA.

At Fair Debt Lawyers, we can also help if your business has been inaccurately accused of violating the TCPA. Our understanding of the TCPA extends to the proper equipment and tools used in telemarketing, and we can determine whether or not your marketing tactics actually violated the TCPA. An FDL lawyer will represent your firm in its litigation to help ensure you aren’t being unfairly targeted if your marketing tactics are legal under the TCPA.