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. But also, perhaps more importantly, it protects the consumer's right to privacy.

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 the consumer. (Arguably, calls made by AI or "artificial intelligence" fall under the category of prerecorded voice messages under the TCPA.)

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.

It also restricts telemarketers from calling consumers registered with the do-not-call registry.

What Constitutes a Violation of the TCPA?

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. Non-telemarketing calls require prior express consent. (The rules regarding prior express written consent were issued by the Federal Communications Commission under the TCPA.)

Calls to Residential Phone Lines

The TCPA prohibits prerecorded messages for calls made to residential telephone lines. It 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.

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 do-not-call list. Consumers can place both their cell phone and residential lines on the do-not-call registry.

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.

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.

Damages for Violations of 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.

Statute of Limitations for TCPA Violations

The statute of limitations for TCPA cases is four years.

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.)