Congress passed the federal Telephone Consumer Protection Act (TCPA) in response to an increasing number of 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, and perhaps more importantly, it works to protect the consumer's right to privacy.
An automated call, or "robocall," is a call dialed by a computer. A pre-recorded voice message, on the other hand, is a recorded human-voice message that the caller uses when contacting the consumer. The TCPA specifically restricts the practices of telemarketers and debt collectors and their use of automated dialing and pre-recorded voice messages with regard to:
residential phone lines
text messages, and
It also restricts telemarketers from calling consumers who have registered with the do-not-call registry.
What Constitutes a Violation of the TCPA?
The following practices are prohibited by the TCPA.
Calls to Cellphones
The TCPA prohibits the use of automated calls, pre-recorded messages, and text messages to cellphones. The law applies to all cellphones whether used for business or personal use. In essence, a telemarketer or debt collector violates the law every time it makes an automated robocall, pre-recorded message, or text message to a consumer's cellphone 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 cellphone.
Calls to Residential Phone Lines
The TCPA prohibits pre-recorded 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 cellphone 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 who are receiving calls in violation of 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 are receiving, specifically, recording the date of the call, 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, pre-recorded or automated calls to their cellphones or residential landlines, may file a lawsuit against the telemarketer or debt collector for the violation of the TCPA.
A consumer can recover:
up to $500 for each violation of the do not call registry
up to $500 per phone call that violates the TCPA, and
up to $1,500 per phone call if the consumer can show that the TCPA was violated knowingly and willfully.
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.