In 1991, Congress passed the Telephone Consumer Protection Act in an attempt to put an end to annoying prerecorded telemarketing calls.
Some of the TCPA’s provisions are common sense. For example, it prohibits automated dialing systems or calls with an artificial or prerecorded voice (robocalls) to emergency telephone lines, such as 911, healthcare-related emergency lines, poison control emergency lines, and police and fire emergency lines. It also prohibits these types of calls to the rooms of hospital patients, convalescent hospital patients, and those living in facilities for the elderly.
Granted, these types of recipients are in the minority. But there’s another type of prohibited call that impacts many more consumers: automated or prerecorded calls to pagers, cell phones, or any service where the recipient is charged for the call. These calls are prohibited without the consumer’s prior consent.
In the TCPA, Congress gave the Federal Communications Commission the authority to develop and implement regulations pertaining to the TCPA. Over the years, the FCC and Federal Trade Commission have made rules and have also changed those rules. In fact, in February 2012 the FCC adopted significant modifications to TCPA rules.
The new FCC rules revoke the “established business relationship” exemption, and say that all telemarketing calls to residential phone lines require prior written consent – whether or not a you have a prior business relationship with the company. The agency also requires prior written consent for robocalls made to wireless phones. It’s important to note that “written consent” can literally mean signing your name to a form, or it can mean electronic or digital signatures that you provide when filling out forms on the Web. However, the electronic form you “sign” has to disclose that your number will be used to call you with prerecorded messages, and that you agree to receive these calls. Also, you can’t be forced to agree to receiving robocalls in order to purchase a good or service.
The TCPA also prohibits companies from sending unsolicited faxes to a fax machine hooked up to a telephone line. There are exceptions to this rule, namely that it’s acceptable to send faxes to consumers who have an established business relationship with the company, and if you’ve published your fax number in a directory or on a website for public distribution.
The TCPA specifically mentions that the FCC can enact regulations prohibiting robocalls to businesses and exemptions for non-commercial calls or those that don’t impact privacy rights. It also says that the FCC can exempt calls to cell phones when the recipient isn’t charged for the call. The TCPA also says that an FCC rule should state that an unsolicited fax is acceptable if it contains a notice saying that the recipient can request to be taken off the fax list and provides a cost-free number to do so 24-7-365, but that it may exempt non-profit professional or trade associations from the rule. It also mandates that the FCC submit an annual report to Congress, called the “Junk Fax Enforcement Report.” Further, it says that the FCC can limit the definition of an “established business relationship” to a certain timeframe. The TCPA also outlines how the FCC should conduct its rulemaking processes.
The TCPA also laid the foundation for what has become the “Do Not Call Registry.” Further, it instructs the FCC to develop standards for artificial or prerecorded voice systems. The FCC subsequently mandated that the beginning of a prerecorded message has to include the identity of the person or business making the call. Finally, the TCPA mandated that, within five seconds of the recipient hanging up, the voice system must release the line. In other words, if you hang up on a robocall, the robocall has to hang up as well so it doesn’t tie up your phone line.
In its February 2012 rulemaking, the FCC changed the opt-out procedures for robocalls. The new FCC ruling requires that the robocall include an interactive opt-out mechanism at the beginning of the message, and that when a consumer chooses to opt-out, the number must be added to the caller’s do-not-call list and the call must be immediately disconnected. If a robocall leaves a message on your voicemail, it must include a toll-free number you can call to opt-out. This enables you to remove your number from lists – even if you’ve previously given your permission to do so.
The TCPA outlines that consumers and businesses can sue those in violation of the Act in court, and receive actual monetary damages or $500 for each violation, whichever is greater. It also says that, if the violation occurs willfully and knowingly, the court can triple the damages. In addition, it gives express permission to state attorneys general to sue companies to stop them from making calls, or to fine them for violations of the TCPA.
A recent U.S. Supreme Court case (Mims v. Arrow Financial Services) found that a debt collection agency could be sued in federal court over violations of the TCPA. In that case, the plaintiff alleged that Arrow Financial Services repeatedly called his cell phone using an automated dialing system and left prerecorded voicemails in violation of the TCPA. This decision paves the way for many more consumers to stand up for their rights in federal court, as opposed to only being able to seek redress through state courts.