What Isthe TCPA?

The TCPA protects consumers from unsolicited automated calls, known as telemarketing, and from other unwanted forms of telecommunication, including faxes and text messages. It was established to regulate the use of automated text messages, calls, and faxed advertising for marketing and other purposes.

The law applies to all entities making telephone calls, including landlines, cellular phones, and VoIP (voice over Internet protocol). The Federal Communications Commission (FCC) is responsible for administering and enforcing the TCPA.

The law defines telemarketing as the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property or goods, or the solicitation of charitable contributions. It also establishes specific rules regarding how these calls are allowed to be conducted. These include requiring the use of an audible signal indicating the call is an advertisement and prohibiting calls to certain numbers, like those associated with hospitals and schools.

The Telephone Consumer Protection Act of 1991

The TCPA was enacted to protect consumers from unwelcome and intrusive telemarketing calls, faxes, and texts. It would also increase consumer awareness about how and when their phone numbers are used and give them control over who can contact them and how.

After a period of rapid growth in telemarketing activities, the need for the TCPA became necessary. With the rise of robocalls and automated dialing systems, consumers began receiving multiple, unwanted telemarketing calls each day. In response, Congress passed the TCPA in order to establish basic consumer protections against such practices.

The TCPA prohibits telemarketers from calling consumers before 8 a.m. and after 9 p.m., as well as placing multiple calls within a short time frame. It also requires telemarketers to provide a way for consumers to opt out of receiving future calls. Furthermore, the TCPA holds accountable those who violate the law by allowing consumers to sue and providing fines that range from hundreds to hundreds of thousands of dollars.

The Emergence of the Do Not Call Registry

The Do Not Call Registry is a list administered by the Federal Trade Commission, or FTC, that allows people to register their phone numbers to protect themselves from unwanted sales calls. Those who register on the list are protected from telemarketing calls from companies with whom they do not already do business and from making solicitations on behalf of charities, political organizations, and survey researchers.

The Do Not Call Registry was created in 2003 as an effort to eliminate and reduce the number of unwanted, intrusive telephone calls that consumers receive in the United States. By 2020, more than 224 million phone numbers had been registered with the Do Not Call Registry.

Interpreting the TCPA: Declaratory Ruling and Order of 2015

The TCPA Declaratory Ruling and Order of 2015 serves to strengthen existing consumer protections while providing businesses with more freedom of action. The ruling clarifies many existing ambiguities in the FCC's previous decisions and updates the TCPA to account for modern technology.

Key Points of the Ruling

1. Automated calls, texts, or other types of automated messages sent to residential or landline numbers require prior express written consent prior to sending.
2. Prior express written consent must be a "clear and conspicuous" agreement signed by the consumer, and must include clear disclosure of the nature of the content that is being sent.
3. Automated calls and texts are not allowed on cell phones or other wireless devices, except in limited circumstances. Automated calls and texts to cell phones must have prior express written consent to proceed, and the opt-out must be easy.
4. Automated calls must include caller ID information for the purpose of identifying the sender.