TCPA Overview: Robocalls, Do-Not-Call Lists, and Spam Faxes
In 1991, Congress passed the Telephone Consumer Protection Act in an attempt to put an end to annoying telemarketing calls. Some of the TCPA’s provisions are common sense. For example, it prohibits automated telephone dialing systems (ATDS) and calls using an artificial or prerecorded voice – also known as robocalls – to be directed to emergency telephone lines, such as 911, healthcare-related emergency lines, poison control emergency lines, and police and fire emergency lines. It also prohibits these types of calls to the rooms of hospital patients, convalescent hospital patients, and those living in facilities for the elderly.
Granted, these types of recipients are in the minority. But there’s another type of prohibited call that impacts many more consumers: automated or prerecorded calls to pagers, cell phones, or any service where the recipient is charged for the call. These calls are prohibited without the consumer’s prior express consent.
In the TCPA, Congress gave the Federal Communications Commission the authority to develop and implement regulations pertaining to the TCPA. Over the years, the FCC has made rules and has also changed those rules. In fact, in February 2012 the FCC adopted significant modifications to TCPA rules. Then, following a 2015 Congressional budget rider that exempted those collecting federal student loan debts from the robocall prohibition, the FCC in 2016 issued a declaratory ruling that attempted to reinstate consumer rights.
As it stands now, FCC rules say that all telemarketing calls to residential phone lines require prior written consent. The agency also requires prior written consent for robocalls made to cell phones. It’s important to note that “written consent” can literally mean signing your name to a form, or it can mean electronic or digital signatures that you provide when filling out forms on the Web. However, the electronic form you “sign” has to disclose that your number will be used to call you with prerecorded messages, and that you agree to receive these calls. Also, you can’t be forced to agree to receive robocalls in order to purchase a good or service.
The TCPA also prohibits companies from sending unsolicited faxes to a fax machine hooked up to a telephone line. There are exceptions to this rule, namely that it’s acceptable to send faxes to consumers who have an established business relationship with the company, and if you’ve published your fax number in a directory or on a website for public distribution.
The TCPA specifically mentions that the FCC can enact regulations prohibiting robocalls to businesses and exemptions for non-commercial calls or those that don’t impact privacy rights. The TCPA also says that an FCC rule should state that an unsolicited fax is acceptable if it contains a notice saying that the recipient can request to be taken off the fax list and provides a cost-free number to do so 24-7-365, but that it may exempt non-profit professional or trade associations from the rule. It also mandates that the FCC submit an annual report to Congress, called the “Junk Fax Enforcement Report.” Further, the TCPA outlines how the FCC should conduct its rulemaking processes.
The TCPA also lays the foundation for what has become the “Do Not Call Registry” by instructing the FCC to take a host of considerations into account when building such a registry. Further, it instructs the FCC to develop standards for artificial or prerecorded voice systems (components of robocalls). The FCC rules require that the robocall include an interactive opt-out mechanism at the beginning of the message, and that when a consumer chooses to opt-out, the number must be added to the caller’s do-not-call list and the call must be immediately disconnected. If a robocall leaves a message on your voicemail, it must include a toll-free number you can call to opt-out. This enables you to opt out, revoke your consent to receive robocalls, and remove your number from lists – even if you’ve previously given your permission to do so.
The TCPA outlines that consumers and businesses can sue those in violation of the TCPA in court, and receive actual monetary damages or $500 for each call, whichever is greater. It also says that, if the violation occurs willfully and knowingly, the court can triple the damages. It also gives express permission to state attorneys general to sue companies to stop them from making calls, or to fine them for violations of the TCPA.
Debt & Credit Lawyer holds TCPA violators accountable, and works to get you the justice you deserve. If you believe your TCPA rights have been violated, call us at 203-529-5100 for a free, no obligation case evaluation.