Telephone Consumer Protection Act (TCPA)

The TCPA Provides Protection From Unsolicited Telephone Calls, Texts, and Junk Faxes

In the days before the proliferation of cell phones, few things were more annoying than the dinnertime calls of telemarketers. In response to numerous consumer complaints, Congress in 1991 passed the Telephone Consumer Protection Act. In 1992, the Federal Communications Commission responded by promulgating regulations implementing the TCPA. Since that time, the Motorola and Nokia phones of old have given way to the iPhone and Androids of today. With that evolution, marketers have evolved to try to track your every move. In response, the protections of the TCPA have evolved as well.

In 2015, in response to requests for further guidance from market participants, the FCC clarified the scope of protections under the TCPA and its regulations. Generally, these prohibit: (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent, with certain exemptions for nonprofits and health-care related issues; (2) making any non-emergency call using an automatic telephone dialing system (“autodialer”) or an artificial or prerecorded voice to a wireless telephone number without prior express consent. If the call includes or introduces an advertisement or constitutes telemarketing, consent must be in writing. If an autodialed or prerecorded call to a wireless number is not for such purposes, the consent may be oral or written. Generally, these same protections apply to unsolicited text messages. Further, all artificial or prerecorded voice telephone messages must meet a number of requirements (set forth below) or they are in violation of the Act and regulations.

The TCPA also provides protection against unsolicited faxes unless there is an “established business relationship” with the recipient and the sender meets multiple other requirements.

If these provisions are violated, consumers are entitled to be compensated in the amount of $500 for each violation or triple that amount if they can prove the violation was willful.

Virginia also has its own restrictions on unsolicited calls set forth in the Virginia Telephone Privacy Protection Act that offer additional protections to consumers receiving such calls. As with the TCPA, if these provisions are violated, consumers are entitled to be compensated in the amount of $500 for each violation or triple that amount if they can prove the violation was willful.

Both the TCPA and the VTPPA offer robust protections for unwanted calls, texts, and faxes. If you have been a victim of these practices, you may wish to investigate your options. To discuss your options with a lawyer at Webster Book LLP, please click here.

Additional TCPA requirements for artificial or prerecorded voice telephone messages:

(b) All artificial or prerecorded voice telephone messages shall:

(1) At the beginning of the message, state clearly the identity of the business, individual, or other entity that is responsible for initiating the call. If a business is responsible for initiating the call, the name under which the entity is registered to conduct business with the State Corporation Commission (or comparable regulatory authority) must be stated;

(2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player that placed the call) of such business, other entity, or individual. The telephone number provided may not be a 900 number or any other number for which charges exceed local or long distance transmission charges. For telemarketing messages to residential telephone subscribers, such telephone number must permit any individual to make a do-not-call request during regular business hours for the duration of the telemarketing campaign; and

(3) In every case where the artificial or prerecorded voice telephone message includes or introduces an advertisement or constitutes telemarketing and is delivered to a residential telephone line or any of the lines or telephone numbers described in paragraphs (a)(1)(i) through (iii), provide an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request, including brief explanatory instructions on how to use such mechanism, within two (2) seconds of providing the identification information required in paragraph (b)(1) of this section. When the called person elects to opt out using such mechanism, the mechanism, must automatically record the called person’s number to the seller’s do-not-call list and immediately terminate the call. When the artificial or prerecorded voice telephone message is left on an answering machine or a voice mail service, such message must also provide a toll free number that enables the called person to call back at a later time and connect directly to the automated, interactive voice- and/or key press-activated opt-out mechanism and automatically record the called person’s number to the seller’s do-not-call list.