Telephone Consumer Protection Act (TCPA)
The Telephone Consumer Protection Act was passed in 1991. The Federal Communications Commission the rules and regulations implementing the act went into effect on December 20, 1992. A court challenge to parts of the act ultimately failed.
From a telephone marketer's viewpoint, the most significant part of the TCPA regulations concern commercial solicitation calls made to residences. Those making the calls are required to:
A call is exempt from the TCPA if the call:
- Limit the calls to the period between 8 A.M. and 9 P.M.
- Maintain a "do not call list" and honor any request to not be called again. When such a request is received, the requester may not be called again on behalf of the business for whom the solicitation is made. One error is allowed in a twelve month period. Subsequently, the soliciting companies are subject to penalties. A person's name must be kept on the "do not call list" indefinitely.
- Have a clearly written policy, available to anyone upon request.
- Have a clearly defined training program for their personnel making the telephone solicitations.
- If you are a service bureau, forward all requests to be removed from a list to the company on whose behalf you are calling. Its is that company that is legally liable under the TCPA, not the service bureau. The "do not call" request must also be honored by any affiliate or subsidiary of the company if there is a reasonable expectation on the part of the consumer that there request would apply also to the affiliate or subsidiary.
Other important provisions of the TCPA include:
- Is made on behalf of a tax-exempt nonprofit organization.
- Is not made for a commercial purpose.
- Does not include an unsolicited advertisement, even if it is made for a commercial purpose.
- Is made to a consumer with whom the calling company has an established business relationship. This relationship cannot be established merely by having made a prior solicitation call. The customer ends this exemption when he or her requests that no more calls be made.
The TCPA can be enforced in at least three different ways:
- A ban on autodialers and artificial or prerecorded voice messages programmed to call any emergency phone lines (including 911 numbers, hospital emergency lines, physicians or medical service lines, health care facilities, poison control centers, fire protection or law enforcement agencies), pagers or cellular phones, or a call for which a charge is made to the calling party.
- A prohibition against the use of artificial or prerecorded voice messages to call a residence except in cases of emergency or if the caller has received prior express consent. (Such calls to businesses are not prohibited.)
- A prohibition against the use of an autodialer to engage two or more lines of a multi-line business.
- A requirement that anyone using an autodialer or an artificial or prerecorded voice message to call any number state the identity of the caller at the beginning of the message and give the address and phone number of the caller during the call.
- A ban on sending unsolicited advertisements by fax to anyone without prior express consent. A prior business relationship is considered consent unless the recipient of the fax withdraws that consent. (This provision was unsuccessfully challenged in federal court.)
- The individual who receives a call after a name removal request has been given to the caller is granted a private right of action in a local court and may sue for $500 in damages for each violation. In some cases, the courts can levy triple damages. Similar suits may be filed for violations of the TCPA's provisions regarding faxes, autodialers, and artificial or prerecorded messages.
- States may initiate civil action against offending companies on behalf of their citizens.
- Complaints may be filed with the Federal Communications Commission, which has the power to assess penalties against parties in violation of the TCPA.
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