The Telephone Consumer Protection Act

The Telephone Consumer Protection Act ("TCPA") was the first federal law enacted to regulate the actions of legitimate telemarketers. This law was passed in 1991 by the Federal Communications Commission ("FCC")and it was meant to create a balance between consumers’ rights and allowing the effective use of telemarketing by businesses. The FCC regulates telephone solicitation by restricting the use of auto-dialing and prohibiting other commercial calls by establishing a "do not call" list requirement for residential telemarketing and limiting what hours calls can be made to residences. The TCPA requires that telemarketers formalize existing policies and if necessary create new ones to bring their operations in compliance with the law.

When Calls Can be Made and What Must be Said

There are several restrictions placed on telemarketers by the FCC when they are making commercial solicitations to residences under 47 C.F.R. § 64.1200(b), (c), and (d). When making those calls, telemarketers are required to:

• Call only between the hours of 8 a.m. and 9 p.m. (The called party can consent to calls at other hours.)
• Additionally, when the “live operator” first speaks to the consumer during an telemarketing call, they must provide the consumer with:

o Their name,
o The name of the business, individual or other entity the call is being made on behalf of, and
o The telephone number or address so the consumer can contact the person or entity.

"Do Not Call" List Requirement
Companies are also required to maintain a "do not call" list and honor any request by a consumer not to be called again under 47 C.F.R. § 64.1200(d)(6). The only exception to this is for nonprofits. Once a request not to be called again is made, the person who made the request may not be called again by that specific business. However, the business is allowed to make one error in calling the consumer again. Should they make the mistake for a second time the business is subject to penalties. Additionally, the person’s name must remain on the list indefinitely. All employees engaged in the telemarketing process must be trained in the “do not call” procedures. Telemarketing service agencies must ensure that they are in compliance and that their clients understand and agree to maintain a “do not call” list because the client will ultimately be held responsible.

Auto Dialer Regulations

The TCPA also regulates auto dialers and Automatic Dialing Recorded Message Players ("ADRMPs") under 42 U.S.C. §227 (b). Auto dialers store produce telephone numbers to be called using a number generator. ADRMPs are auto dialers but also play prerecorded message to the consumer. ADRMPs cannot be used to call:

• Any emergency telephone line,
• Guest or patient room telephone line of a hospital, health care facility, elderly home, or other such establishment, or
• A telephone number that is assigned to a service, such as paging, cellular telephone, specialized mobile radio, other radio common carrier, or any service for which the called party would be charged for the call

When ADRMP is used the beginning of the call must identify the business, individual, or other entity who is initiating the call, and their telephone number or address.

The TCPA also regulates the transmission of advertisements over telephone facsimile machines under 42 U.S.C. § 227(b)(1)(C). More specifically it bans the transmission of unsolicited advertisements. However it there is an established business relationship with the recipient of the advertisement then there is assumed prior consent until it has been requested that they not send such faxes anymore.

Exemptions
There are some calls that are exempt from the TCPA. Such calls include:

• Calls made on behalf of a tax-exempt nonprofit organization
• Calls that are not made for commercial purposes
• Unsolicited advertisements, even if made for commercial purposes
• Calls from a company with whom the consumer has an established business relationship. (Such a relationship cannot be established by having made a prior solicitation call.) This exemption can be ended by the consumer requesting that no more calls be made

Penalties

When a person has received more than one telephone call within any twelve month period in violation of the regulations the consumer can under 42 U.S.C. § 227(c)(5): 

• Report the violations to the business or solicitor making the calls to make the calls stop
• If that does not make the calls stop, file a suit in state court (if the state permits) to stop the calls or sue for monetary loss. The penalty is the greater of $500 for each violation or the actual monetary loss

Our last post, "Pre-Recorded Calls Do Not Violate the FDCPA," was the impetus for this post about the TCPA. Both the FDCPA and TCPA have garnered much attention as the economy struggles, because creditors have become more aggressive in their collection methods.

If you or a loved one have been subjected to these aggressive tactics by a creditor, please contact us immediately. We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 if you prefer to talk to a trained professional over the phone instead, or of course, visit our website at http://www.krohnandmoss.com/.