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The Telephone Consumer Protection Act of 1991 – What Is It?

The Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, et seq. (“TCPA”) is a federal statute that was signed into law in order to regulate the actions of telephone solicitors. The law contains provisions that provide legal protection to consumers who wish to avoid unwanted telephone solicitations (including calls, prerecorded messages, text messages, and so forth) and unwanted faxes, and it places restrictions on the telemarketing practices of businesses, as well as the calling, texting, and faxing practices of other businesses.

What is prohibited?

Arguably the most important regulations of the TCPA are rules that govern commercial solicitations that are made to private consumers. According to the TCPA, when making these calls, businesses must abide by the guidelines outlined in the law which prohibit them from engaging in certain actions.

Notably, regarding telemarketers, unless a consumer has previously given express consent to a telemarketer, telemarketers cannot call a consumer’s phone before 8 a.m. or after 9 p.m. of the consumer’s local time. They also cannot call a consumer if the consumer has already chosen to opt out of calls from the telemarketer. A consumer has the right to revoke consent to receive calls from a telemarketer at any given time. Telemarketers must maintain a Do Not Call list (a list that contains the numbers of consumers who do not wish to be called, that is specific to their own company) and any request by a consumer to be added onto this list must be honored for five years. In addition to honoring the company-specific Do Not Call list, telemarketers must also abide by the National Do Not Call Registry, meaning that they do not have the right to call any number that appears on that list. Furthermore, telemarketers should disconnect a call if a consumer has not picked up after 4 rings or 15 seconds, and they must also cease calls to any phone numbers (both wired and wireless) that have been reassigned.

The TCPA also contains a specific section that places limitations on the use of automated telephone equipment such as automatic dialing systems or prerecorded or artificial voices. The law states that it is unlawful for solicitors to use automated equipment to call an emergency telephone line (for example 911, law enforcement agency, health care facility, and so on) or the telephone line of any patient room in a hospital or similar establishment. Additionally, telemarketers are prohibited from initiating a call to a consumer’s residential phone in order to leave a message using a prerecorded or artificial voice if the consumer did not previously give their express consent for this action to occur. Telemarketers and other solicitors also may not send unsolicited advertisement faxes to a consumer who has not given permission to be faxed. They also may not use an automatic dialing system that engages two or more lines of a multi-line business.

Telemarketers are also subject to regulations on “abandoned calls” which are calls in which a representative does not answer a recipient’s greeting. In order to ensure consumer-friendly practices, telemarketers cannot abandon more than 3 percent of calls made to consumers and if they do abandon a call, they must provide the consumer with a prerecorded identification message.

During a telephone solicitation, solicitors must provide the consumer with their name, the name of the company that they are calling on behalf of, and the company’s identification information like a phone number or address. If a consumer has consented to receiving prerecorded messages, the message itself must also include the aforementioned information. In the case of a prerecorded message, a telemarketer is required to leave a phone number for the entity that they are calling from so that a consumer can know who to contact in order to opt out of further calls. Additionally, solicitors are required to transmit their caller ID information whenever possible and they are prohibited from using any service that would block such information.

Who does the law apply to and how can consumers sue?

The TCPA applies to any individual or business that makes unsolicited telephone solicitations to consumers. Calls that are made to individuals who have given their express consent to being called or individuals who have an established business relationship are not categorized as unsolicited calls.

In addition to voice calls, the TCPA also applies to text messages made to a consumer’s cell phone. Telemarketers and other businesses must follow the same regulations when sending text messages to consumers as they would for voice calls.  The TCPA also applies to unsolicited fax messages made by a telemarketer or other business.

A consumer’s prior-given express consent to receive a call or text message from a business’ automatic telephone dialing system, or to receive a fax message, can be withdrawn.  A consumer can tell any business, such as for example a creditor or a third-party debt collector to stop calling them, and if they do so, the calls must stop, or each and every continued call or text message to a consumer’s cell phone, or continued fax to a consumer, would be a separate and distinct violation of the TCPA. The TCPA is a strict liability statute.

Under the TCPA, consumers are provided with a private right of action. This means that any individual that has suffered an injury due to a violation of the TCPA has the right to file a lawsuit against an offending telemarketer or other business, and to try to collect damages. Consumers are able to file both individual lawsuits and class action lawsuits.

What damages are consumers entitled to?

Each unwanted call or text or fax message that is in violation of the TCPA is a separate and distinct violation of the TCPA. A business would be strictly liable for a violation of the TCPA. Injured consumers are able to collect monetary relief in the form of actual damages or $500 in statutory damages, whichever is greater, per violation of the TCPA. These damages are calculated per violation, and there is no limit to the total amount of damages that may be awarded. Additionally, if the court finds that the defendant willfully engaged in the unlawful practice, the court can increase the consumer’s award by up to three times the amount of damages for each violation of the TCPA. This means that a consumer can collect up to $1,500 in damages per violation. In essence, this could be up to $1,500 per call, text, or fax. In addition to monetary compensation, consumers are also able to sue for injunctive relief.

What is the statute of limitations period?

The statute of limitations period is a legal provision that sets forth the maximum amount of time that a party has to initiate legal proceedings in regard to a particular claim for relief; generally starting from the date that an alleged unlawful action accrued. The statute of limitations period for claims under the TCPA is four years, which means that injured consumers must file a TCPA lawsuit within four years of the date that the violation occurred. That said, the statute of limitations period for a TCPA claim can possibly be tolled while a class action lawsuit that includes the consumer’s claim is pending.

Are there exemptions?

Some types of calls are exempt from the TCPA. These include, but are not limited to:

  • Calls that are not made for commercial purposes; and
  • Calls that are made for a tax-exempt non-profit organization.

Some of the places that a consumer can look to for help or answers to questions:

The laws and statute(s) discussed above can change. So, in the state that a consumer resides in, a consumer protection agency, the Office of the Attorney General, and/or a consumer protection attorney who is licensed in a consumer’s respective state can help a consumer in getting help, up to date information and interpretations, and/or with determining the answers to their questions in regard to the aforementioned laws. The Consumer Financial Protection Bureau can assist as well.