TCPA compliance starts with getting prior consent before calling, texting, or delivering a voicemail to a customer’s phone. This opt-in process is the gateway to all compliance.
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Four decades ago, businesses began to capitalize on large-scale outbound calls. Consequently, the explosion in contact centers brought regulations created to define industry boundaries and consumer rights.
This article provides an overview of the TCPA Act of 1991, its prohibitions, and enforcement. It is designed to be informative but in no way should be construed as legal advice, please consult with an attorney when doing any actions on the regulated phone system.
What is the TCPA Law?
The TCPA (Telephone Consumer Protection Act) is a federal law enacted in 1991 to safeguard consumer privacy. The TCPA law restricts telemarketing specific phone calls, text messages, and facsimiles. It also limits automatic dialing systems and artificial or prerecorded voice messages.
TCPA rule governs consumer rights, and consumers may file complaints with the Federal Communications Commission (FCC) when they suffer violations.
To Whom Does the TCPA Act Apply?
The TCPA Act applies to: “any person within the United States, or any person outside the United States if the recipient is within the United States.”
The FCC partnered with the Federal Trade Commission (FTC) to establish a national Do Not Call Registry, with exceptions made for non-profits. Before making robocalls to mobile phones, prior written consumer consent is mandatory and automated opt-outs must be allowed during the calls.
Consumer consent is an essential defense under the TCPA and should be a primary focus of all businesses that communicate with consumers via voice call or text. Without explicit consent, a company must adhere to strict solicitation rules, honor the National Do Not Call Registry, or subscribers may sue the company.
What Does the TCPA Act Prohibit?
The Telephone Consumer Protection Act (TCPA; 47 U.S.C. § 227) regulates the use of automatic telephone dialing systems (ATDS) and artificial or prerecorded voices (“prerecorded messages”). The Act prohibits using an ATDS or prerecorded messages to contact cell phones unless the recipient has provided and not revoked “consent” to receive the call/text message.
The TCPA Act also prohibits:
1. Making any call using an automatic telephone dialing system (except for emergency purposes)
- (i) to any emergency telephone line
- (ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or;
- (iii) to any telephone number assigned to any service for which the called party is charged for the call;
2. Using any telephone facsimile machine, computer, or other devices to send an unsolicited advertisement to a telephone facsimile machine, unless:
- (i) the unsolicited advertisement is from a sender with an established business relationship with the recipient;
- (ii) the sender obtained the number of the telephone facsimile machine through voluntary communication, or a directory, advertisement, or website to which the recipient voluntarily agreed to make available its facsimile number for public distribution.
3. Using an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously.
How Is the TCPA Act Enforced?
The Telephone Consumer Protection Act (TCPA) is primarily enforced through its private right of action, allowing individuals to bring suit under the law.
The Private Right of Action states:
A person or entity may bring into an appropriate court:
- (i) an action based on a violation of the use of automated telephone equipment or its regulations
- (ii) an action to recover for actual monetary loss from such a violation, or to
- receive $500 in damages for each such violation, whichever is greater, or
- (iii) both such actions.
If the court finds that the defendant willfully or knowingly violated the regulations, the court may increase the amount to not more than 3 times the amount.
This means individuals can sue a party for either $500 in damages per violation or total actual monetary loss (whichever is greater), or both. This can go up to $1,500 per violation for willful violations.
Bottom Line
This article is intended to provide a general overview of the TCPA Act of 1991 and is not legal advice. Before launching a calling or texting campaign, seek the counsel of a TCPA expert. The TCPA and other telemarketing regulations require a specific level of knowledge to navigate its complicated structure successfully.
