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Telephone Consumer Protection Act (TCPA)

By Wesley Chai

The Telephone Consumer Protection Act (TCPA) of 1991 is a federal law that places restrictions on telephone solicitations and Robocalls. The purpose of TCPA is to protect consumers from invasive telemarketing practices. This is done through restrictions on the hours that solicitors can legally make calls and the equipment they can use, as well as the creation of a national database of "do not call" phone numbers. This applies to entities such as telemarketers, common carriers and debt collection agencies.

TCPA was signed into law by George W. Bush as Public Law 102-243 and is codified as 47 U.S.C. § 227. The law was created to amend the Communications Act of 1934. Unrestricted, unsolicited telemarketing calls can be the source of disturbance for telephone service subscribers. Solicitors violating TCPA can subject them to legal and financial penalties.

It is important for both solicitors and consumers to be aware of TCPA regulations. Consumers should know their rights, to protect themselves further and take appropriate action if necessary. Solicitors, such as call centers, should be aware of regulations so that they do not commit an unknowing violation and face consequences.

General rules and provisions of TCPA

Under TCPA legislation, phone solicitors must:

• Avoid calling households outside a standard 13-hour window (8 a.m. - 9 p.m. local time).
• Identify either themselves or the person/entity they are representing. A name must be provided, as well as a telephone number or address.
• Maintain and honor a company-specific "do not call" (DNC) list of households who request to not be contacted. Solicitors are required to honor "do not call" requests for a minimum of five years.
• Refrain from calling households listed in the National Do Not Call Registry.
• Avoid calls that rely on artificial voices or recordings.
• Avoid calls using automated telephone equipment (such as predictive dialers), artificial voices or prerecorded messages to certain entities. This applies to solicitors calling physician offices, hospital and other healthcare facility lines, emergency lines, cell phones or any telephone line where the recipient is charged for the call.
• Avoid the use of auto-dialed calls that use two or more of a business's phone lines.
• Avoid faxing unsolicited advertisements.
• For phone numbers not on the National Do Not Call Registry, callers are required to transmit a valid caller ID, and there is a maximum rate imposed for the number of abandoned calls.

Households or other subscribers may sue solicitors who violate TCPA. Subscribers have a few options. They can sue a party for either $500 per violation or total monetary loss (whichever is greater), seek an injunction, or both. For TCPA violations that are deemed willful, subscribers can sue for up to three times the amount for each violation.

Loopholes and consumer vulnerability

TCPA, which was originally passed by Congress in 1991, was less effective at protecting consumers until the Federal Trade Commission (FTC) established the National Do Not Call Registry, along with other telemarketing regulations.

Initially, Congress delegated the specific rules for "do not call" circumstances to the Federal Communications Commission (FCC). However, the FCC did not establish a federal register or "do not call" database, despite the recommendation of Congress. The FCC required companies to keep a company-specific "do not call" list for customers. As a result, consumers had to make "do not call" requests for each individual telemarketer, and solicitors were also able to circumvent TCPA rules by calling from different numbers.

Despite pushback from players in the telemarketing industry, the FTC established the National Do Not Call Registry in 2003.

How to further shield yourself

Consumers can do a few things to protect themselves from telemarketers:

• Add yourself to the National Do Not Call registry.
• Revoke consent if previously given. To consent to receiving telephone calls from solicitors, the FCC requires written consent from the subscriber. If written consent was previously given, this can be overridden in another letter to the solicitor.
• Never give away sensitive information over the phone, such as credit card numbers

If solicitors violate TCPA, penalties can be enforced in at least three different ways:

• If an individual is called by a solicitor after a "do not call" request, the subscriber is granted a private right of action in local court. This also holds true for violations of TCPA's other provisions.
• State governments may take legal action against violators, on behalf of its residents.
• The FCC accepts complaints about TCPA compliance and may take action against violators.