The TCPA: Protection Against Robocalls and Prerecorded Calls

Congress passed the federal Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227) in response to increasing consumer complaints about telemarketer and debt collector phone calls. The primary purpose of the TCPA is to reduce the number of nuisance calls you get.

In addition, some states, like Arkansas, Florida, Oklahoma, and Washington, have passed their own mini-TCPA laws. These laws generally put additional restrictions on what telemarketers may and may not do when calling consumers in those states.

With this guide to the TCPA and state telemarketing laws, you can learn how to protect yourself from unwanted calls.

What Is a Robocall?

An automated call, or "robocall," is a call dialed by a computer. On the other hand, a prerecorded voice message is a recorded human-voice message that the caller uses when contacting a consumer. Calls made by artificial intelligence (AI) fall under the category of prerecorded voice messages under the TCPA.

The TCPA: Your Weapon Against Robocalls and Unwanted Telemarketing

The TCPA specifically restricts the practices of telemarketers and debt collectors and their use of automated dialing and prerecorded voice messages concerning:

• cell phones
• residential phone lines
• text messages, and
• unsolicited faxes.

The TCPA also restricts telemarketers from calling consumers registered with the federal do-not-call registry.

Know Your Rights: Your Guide to Unwanted Calls

The TCPA prohibits the following practices.

Calls to Cell Phones

The TCPA prohibits marketers from sending automated calls, prerecorded messages, and text messages to cell phones. The law applies to all cell phones for business or personal use.

In essence, a telemarketer or debt collector violates the law whenever it makes an automated robocall, prerecorded message, or text message to a consumer's cell phone unless the consumer previously gave the telemarketer or debt collector permission to call. In cases where consent has been previously given, the consumer can revoke that consent by notifying the telemarketer or debt collector to stop calling the cell phone.

For telemarketing and advertising calls or texts made using an automated telephone dialing system (ATDS) or a prerecorded voice to cell phones, or by prerecorded voice to residential lines, prior express written consent is required. (47 C.F.R. § 64.1200). Non-telemarketing calls require prior express consent. (The rules regarding prior express written consent were issued by the FCC under the TCPA.)

Calls to Residential Phone Lines

The TCPA prohibits calls to residential telephone lines using an artificial or prerecorded voice, except for emergency purposes, to deliver a message without the prior express consent of the called party. (47 U.S.C. § 227).

Telemarketing Calls to Consumers on the Do-Not-Call Registry

The TCPA prohibits any solicitation calls to those consumers whose telephone numbers are registered on the national do-not-call list. Consumers can place both their cell phone and residential lines on the do-not-call registry.

The prohibition only applies to solicitations from telemarketers/sellers with whom the consumer does not have an "established business relationship." If the consumer has done business with a telemarketer/seller within the last 18 months or made an inquiry within the last three months, then it is presumed under the TCPA that the consumer has an established business relationship with that telemarketer/seller. (47 C.F.R. § 64.1200).

Under the TCPA, telemarketers and debt collectors using an autodialer are also forbidden from other practices, including calling the consumer before 8:00 a.m. or after 9:00 p.m. The caller must additionally, during any call, provide the caller's name, the name of the business entity on whose behalf the call is being made, and a telephone number or address at which the person or entity can be reached.

U.S. Supreme Court Limits the Scope of the TCPA in Facebook v. Duguid

Again, the TCPA prohibits using an automated telephone dialing system (ATDS) or an artificial or prerecorded voice to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) to "telephone number[s] assigned to a paging service [or] cellular telephone service." (47 U.S.C. § 227(b)(1)(A)(iii)). The U.S. Supreme Court clarified in the case of Facebook, Inc. v. Duguid that, under the TCPA, to be considered an autodialer, the autodialer must have the capacity either to store or to produce a telephone number using a random or sequential number generator.

In this case, Facebook sent Noah Duguid numerous automatic text messages without his consent. Duguid sued Facebook for violating the provision of the TCPA, which prohibits calls placed using an ATDS, or autodialer. The court, ruling in favor of Facebook, decided that because Facebook's notification system neither stores nor produces numbers "using a random or sequential number generator," it is not an autodialer.

Other defendants in TCPA class action cases are likely to use this precedent to argue that the technology used to send text messages doesn't constitute an autodialer and, thus, the TCPA doesn't apply.

Documenting Evidence of TCPA Violations

Consumers receiving calls violating the TCPA can take a few steps to document the violations.

• Obtain and save all phone records and highlight incoming calls from debt collectors and telemarketers.
• Make a written record of the calls you receive, specifically, the date, time of the call, caller's identity, and a summary of any conversations held with the caller.
• Save all voice messages.
• If you have revoked your consent to receive calls, keep a copy of the revocation.

How to Fight: Combating Telemarketing Harassment Under the TCPA

Consumers who receive telemarketing calls, prerecorded or automated calls to their cell phones or residential landlines that violate the TCPA may file a lawsuit against the telemarketer or debt collector for the violation.

A consumer can recover:

• up to $500 for each violation of the do not call registry
• up to $500 per violation, and
• up to $1,500 per violation if the consumer can show that the TCPA was violated knowingly and willfully.

Civil Forfeiture as a TCPA Penalty

On December 30, 2019, the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act became law. This legislation cracks down on robocallers by expanding the authority of the FCC to impose civil penalties of up to $10,000 per call for intentional violations of federal robocall laws and increases the time period that the Commission can take action against those who intentionally violate federal law to four years.

This penalty is in addition to other penalties for TCPA violations ($500 per violation, $1,500 for each willful or knowing violation). Specifically, the law states that if done "with the intent to cause such violation . . ." TCPA violations will result in "an additional penalty not to exceed $10,000."

Statute of Limitations for TCPA Violations

The statute of limitations for TCPA cases is four years.

In recent years, federal and state governments (see below) and courts have been taking actions to regulate robocalls. Here are some of the most recent developments.

Legislation Introduced to Amend TCPA to Punish Robocallers

On March 20, 2024, Senator Edward J. Markey (D-Mass.), Senate Majority Whip Dick Durbin (D-Ill.), U.S. Representative Jan Schakowsky (IL-09) reintroduced the Protecting American Consumers from Robocalls Act into Congress. This proposed law would help prevent illegal robocalls by amending the TCPA to allow all telephone subscribers, including small businesses, to seek damages (a minimum of $500) for all unconsented-to telemarketing calls.

FCC Makes Most AI-Generated Robocalls Illegal

After AI was used in early 2024 to create a robocall message mimicking the voice of President Joe Biden urging New Hampshire residents not to vote in the state's primary election, the Federal Communications Commission (FCC) made these calls illegal under the TCPA.

FCC Requires One-to-One Consent for Robocalls

As of late 2023, the FCC approved regulations saying that telemarketing robocalls are allowed only if the actual seller, not just a telemarketing company, has gotten written consent from the consumer.

In the past, telemarketing firms would buy consumer information and consent from lead generators. Lead generators often misled consumers who thought they were consenting to a single company's telecommunications, but instead were agreeing to get unwanted calls and text messages from many different companies. One common practice was for a lead generator to offer the consumer a quote for a good or service online, such as insurance. But to get the quote, the consumer had to agree to receive calls and texts from the lead generator's marketing partners. The lead generator might then sell this information to telemarketing companies, which made hundreds and thousands of robocalls and robotexts to consumers based on their "consent." The telemarketing companies argued that this practice was legal because they had the consumers' consent.

The FCC's new rule requires "one-to-one consent" for obtaining express written consent to solicit customers via phone call or text using an autodialer or prerecorded voice message. Basically, the rule requires telemarketers to get consumer consent to receive robocalls and robotexts one seller/brand at a time instead of allowing a single consent to apply to multiple businesses or sellers.

The new rule becomes effective one year after its publication in the Federal Register, likely in early 2025.

U.S. Supreme Court Strikes Down TCPA Exception for Federal Debt Collection

When the TCPA became law in 1991, the law prohibited "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice" to "any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call." (47 U.S.C. § 227(b)(1)(A)(iii)). Then, in 2015, Congress amended the law as part of that year's budget bill to include an exception for calls made to collect on government-owned debts.

On July 6, 2020, however, the U.S. Supreme Court struck down the exception for the collection of debts owed to the federal government. (Barr v. American Association of Political Consultants, No. 19–631 (July 6, 2020) (2020 WL 3633780)). So, automated calls to cell phones to collect debts owed to or guaranteed by the federal government, like student loans and mortgage debts, are now banned along with other robocalls.

State Mini-TCPA Laws

Oklahoma and Arkansas join other states, such as Florida and Washington, in placing major restrictions on telephonic sales calls. The laws were largely a reaction to Facebook v. Duguid and were passed to implement a new and expanded definition of autodialer. (Talk to an attorney to learn the laws in your state.)

Taking Action: Reporting Violations and Seeking Justice

If a telemarketer violates federal or state requirements or restrictions on telemarketers, you can take one or more of the following actions.

File a Complaint With Your State Attorney General's Office

You can file a complaint online with your state Attorney General's office to report a violation. The attorney general may bring actions to enforce compliance with the state's telemarketing laws.

File a Lawsuit Against the Telemarketer

If a caller violates the law, you can ask a court for an injunction or recovery of damages. You can use Nolo's Telemarketing Phone Call Log to keep track of telemarketer violations.

Add Yourself to Telemarketing Do-Not-Call Lists

Do-not-call lists protect consumers from unwanted calls from telemarketers.

Add yourself to the national do-not-call list. The Federal Communications Commission and Federal Trade Commission maintain the national do-not-call list. The registry is nationwide and applies to all telemarketers, though certain organizations, such as non-profit organizations, are exempt. You can add your number to this database by visiting the Federal Trade Commission website.

Add yourself to your state's do-not-call list (if it has one). Some states have their own do-not-call list. When registering, you might have to provide your name, physical address, county, and email address.

Talk to a Lawyer

If you have further questions about the TCPA or want to learn more about filing a lawsuit against a telemarketer or debt collector for a violation of the TCPA, talk to a consumer protection lawyer. (TCPA actions are often class action suits.)