The Telephone Consumer Protection Act (TCPA) and Telecommunications Privacy

The Telephone Consumer Protection Act or TCPA places specific limits on when and how unsolicited pre-recorded telemarketing calls can be made to the landline telephones of American citizens. What more, the TCPA also prohibits all forms of autodialed or pre-recorded text messages or calls to the cellphone lines of American citizens.

The TCPA was passed by the Federal Communications Commission or FCC in 1992, and mandates that telemarketers adhere to the following list of requirements when making phone calls to American consumers:

• Calling time restrictions – Callers are only permitted to make calls before 8AM or after 9PM.
• Internal Do Not Call (DNC) List – Callers are required to create and maintain an internal Do Not Call list of consumers who ask not receive calls or texts from specific telemarketers or callers.
• Automatic Telephone Dialing Systems (ATDS) – The TCPA prohibits telemarketers from making autodialed telemarketing calls and texts to cell phones and other mobile devices where the recipient might be charged for the call without their prior express written consent, as well as non-marketing autodialed calls without the prior express consent of consumers receiving said calls.
• Robocalls – The TCPA prohibits the use of a pre – recorded or artificial voice when calling a residential landline or wireless number for telemarketing purposes without prior express written consent.
• National Do Not Call Registry – Telemarketers are prohibited from calling any consumers who has asked not to be called in accordance with the National Do Not Call Registry. Many states also have their own versions of “Do Not Call Lists”, separate from the federal list.
• Identification requirements – The TCPA requires callers to provide their name, the name of the company on whose behalf they are calling, and a telephone number or address which can be used for contact.

In 2003, the FCC partnered with the Federal Trade Commission for the purposes of establishing a national Do Not Call Registry, with the exception of calls from non-profit organizations. Furthermore, the FCC revised rules relating to the TCPA in 2012, mandating that businesses obtain written consumer consent before making any autodialed robocalls or pre-recorded voice messages to the mobile phones of American consumers. Moreover, telemarketers are also required to provide consumers with automated opt-outs during these types of phone calls.

Additionally, debt collectors are also prohibited from making autodialed robocalls to American consumers, unless a consumer has first given them specific permission to do so. However, debt collectors are still permitted to make non-automated calls to American consumers, even if a consumer has added their name to the national Do Not Call List. This is due to the FCC’s determination that calls from debt collectors do not constitute telemarketing calls.

Who must comply with the TCPA?

The TCPA regulates all forms of telephone solicitations and as such, any person, entity, or business who conducts telephone solicitations must be in compliance with the TCPA at all times. Under the TCPA, a telephone solicitation is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person’s prior express invitation or permission, (B) to any person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization.”

The TCPA covers all forms of telephone communication including voice calls, faxes, text messages, and VoIP calls. Alternatively, the TCPA does not solely apply to telemarketers or other entities who conduct calling campaigns. Under the TCPA, entities may be found vicariously liable for any TCPA violations that are committed by agents that an entity has hired to conduct their calling campaigns, even if the hiring entity in question did not directly commit any violations.

How is the TCPA enforced?

The TCPA allows for a variety of enforcement actions and mechanisms in regards to American consumers who feel as though their rights have been violated. Notably, the TCPA permits private right of action that allows consumers to bring both individual and class action lawsuits against entities that violate the TCPA. The TCPA is also a strict liability statute that allows for uncapped statutory damages and violation penalties that can run as high as $500 per violation, as well as willful violations that can run as high as $1,500 per violation.

All of these factors have resulted in TCPA class action lawsuits that can often result in settlements of tens of millions of dollars. As a testament to this fact, Caribbean Cruise Line was forced to pay $76 million dollars in 2016 to settle a class action lawsuit brought against the company in relation to TCPA violations, while Capital One was forced to pay $75.5 million for TCPA violations in 2015. In addition to private right of action, the TCPA also gives the authority to enact regulatory enforcement to both the FTC and the FCC.

While telemarketing may be a forgotten form of advertising in the midst of the technological advancements of the 21st century, legislation such as the TCPA is still very much needed. Without legislation such as the TCPA, telemarketers and other business entities would be able to call consumers at any time without any form of restriction. In addition to this, these entities would be able to commit such actions without the fear of having to pay high violations or penalties. As such, the TCPA is one of the many federal privacy laws that protect American consumers from being contacted without first granting written consent to be contacted.