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.
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. Calls made by artificial intelligence (AI) 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:
It also restricts telemarketers from calling consumers registered with the do-not-call registry.
Some states, like Florida, Oklahoma, and Washington, have passed mini-TCPA laws. These laws generally put additional restrictions on what telemarketers may and may not do when calling consumers in those states.
The laws were largely a reaction to Facebook v. Duguid (see below) and were passed to implement a new and expanded definition of autodialer.
The TCPA prohibits the following practices.
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 FCC under the TCPA.)
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).
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.
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.
Consumers receiving calls violating the TCPA can take a few steps to document the violations.
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:
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 to 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."
The statute of limitations for TCPA cases is four years.
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.)