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The '''Telephone Consumer Protection Act of 1991''' (TCPA) was signed by the [[United States Congress]] in 1991 as Public Law 102-243 by former [[George Herbert Walker Bush|President Bush]], updating the [[Communications Act of 1934]]. It is the primary law governing the conduct of telephone solicatation, ie. [[telemarketing]]. The TCPA restricts the use of [[autodialler|automatic dialing systems]], artificial or prerecorded voice messages, SMS to SMS text messages, and [[fax|fax machines]] to send unsolicited advertisements (Internet to SMS test messages are covered by the [[Can Spam Act]].
The '''Telephone Consumer Protection Act of 1991''' (TCPA) was passed by the [[United States Congress]] in 1991 ans signed into law by former [[George Herbert Walker Bush|President Bush]] as Public Law 102-243, updating the [[Communications Act of 1934]]. The current version of the statute is found principally at [http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000227----000-.html 47 U.S.C. 227]. The TCPA is the primary law in the [[US]] governing the conduct of telephone solicitations, ie. [[telemarketing]]. The TCPA restricts the use of [[autodialer|automatic dialing systems]], artificial or prerecorded voice messages, SMS text messages received by cell phones, and the use of fax machines to send unsolicited advertisements. It also specifies several technical requirements for fax machines, autodialers, and voice messaging systems -- principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.


=== General Provisions ===
The law has important implications for [[telemarketing]] firms:
Unless the recipient has given prior express consent, the TCPA and FCC rules under the TCPA generally require:


* Solicitors may not call before 8 a.m. or after 9 p.m., local time.
* Solicitors may not call residences before 8 a.m. or after 9 p.m., local time.
* The solicitor must maintain a "Do Not Call" (DNC) list, which must be honored for 10 years.
* The solicitor must maintain a "Do Not Call" (DNC) list, which must be honored for 5 years.
* Solicitors must provide their name, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that person or entity may be contacted.
* Solicitors must provide their name, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that person or entity may be contacted.
* Calls cannot be made with artificial voices or recordings.
* Solicitation calls cannot be made to residences with artificial voices or recordings.
* Solicitors cannot call cellular phones, or any other service in which the recipient is charged for the call. In a related section, unsolicited commercial [[fax]] messages are also prohibited.
* Calls of any type cannot be made with artificial voices or recordings to cell phones or to any service in which the recipient is charged for the call.
* Solicitors cannot engage two or more lines of a multi-line business.
* Prerecorded or autodialed calls cannot engage two or more lines of a multi-line business or to any emergency number.
* In a related section, unsolicited advertising faxes are also prohibited.
* In the event of a violation of the TCPA, individuals are entitled to collect damages directly from a solicitor for $500 to $1,500 or recover actual monetary loss, whichever is higher.
* In the event of a violation of the TCPA, individuals are entitled to collect damages directly from a solicitor for $500 to $1,500 for each violation, or recover actual monetary loss, whichever is higher.


The major limitation of this law that renders it all but ineffective at stopping unsolicited calls is that the consumer must request of each telemarketer to be put onto that telemarketer's do-not-call list. This burden was lifted by the [[Do-Not-Call Implementation Act]]'s establishment of the [[National Do Not Call Registry]].
The major limitation of this law as enacted was that it was ineffective at proactively stopping unsolicited calls in that the consumer had to request of each telemarketer to be put onto that telemarketer's do-not-call list. This burden was lifted by the [[Do-Not-Call Implementation Act]]'s establishment of the [[National Do Not Call Registry]] and adoption of the National Do-Not-Call list by the [[FCC]] in 2003


The [[CAN-SPAM Act]] made a minor amendment to the TCPA to explicitly apply the TCPA to calls and faxes originating outside the [[US]].
⚫
The portions of the TCPA related to [[junk fax]] were amended by two later acts: the [[CAN-SPAM Act]] and the [[Junk Fax Prevention Act of 2005]].

⚫
The portions of the TCPA related to unsolicited advertising faxes were amended by the [[Junk Fax Prevention Act of 2005]].

===Unusual Statutory Provision===
The TCPA is a relatively unique statute in that it is a federal law, but suits brought by consumers against violators are heard exclusively in state courts.<ref>Robert R. Biggerstaff, ''State Courts and the Telephone Consumer Protection Act of 1991: must States Opt-in? Can States Opt-out?'' 33 Conn. L. Rev. 407 (2001).</ref>. This is a highly unusual situation in the US where lawsuits brought under federal laws can be heard by federal courts. This has resulted in a number of court cases addressing this unique provision and there have been divergent opinions from different court.

===Major Court Cases===
The TCPA's constitutionally was challenged by telemarketers soon after it was enacted. Two cases, ''Moser v. FCC'', 46 F.3d 970 (9th Cir. 1995) cert. denied, 515 U.S. 1161 (1995) and ''Destination Ventures Ltd. v. FCC'', 46 F.3d 54 (9th Cir. 1995) effectively settled this issue finding the restrictions in the TCPA were constitutional.

The US national elections in 2006 saw many questionable uses of prerecorded calls in political campaigns. In some instances, these calls were anonymous [[attack_ad|attack ads]]. Because the TCPA requires all telephone calls using a prerecorded messages to deliver a message to identify the caller, those calls arguably violated the TCPA. The first case to address this issue was brought by the Oklahoma Attorney General against a political consultant. The court decision, ''Oklahoma v. Pope'', 2007 WL 108943 (W.D. Ok., Jan 9, 2007) held that the calls did indeed violate the TCPA. Further proceedings in that case are expected.

===Law Review Articles===
* Robert R. Biggerstaff, ''State Courts and the Telephone Consumer Protection Act of 1991: must States Opt-in? Can States Opt-out?'' 33 Conn. L. Rev. 407 (2001).

* Kevin N. Tharp, ''Federal Court Jurisdiction over Private Tcpa Claims: Why the Federal Courts of Appeals Got it Right'', 52 Fed. Comm. L.J. 189 (1999).

* David E. Sorkin, ''Unsolicited Commercial E-Mail and the Telephone Consumer Protection Act of 1991'', 45 Buffalo L. Rev. 1001 (1997).

* Hillary B. Miller and Robert R. Biggerstaff, ''Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes'', Fed. Comm. L.J. 667 (2000)


⚫
''See also: [[telemarketing]], [[autodialer]]''


===More Information===
===More Information===
*[http://www.fcc.gov/cgb/consumerfacts/tcpa.html The FCC on unwanted telemarketing calls]
*[http://www.fcc.gov/cgb/consumerfacts/tcpa.html The FCC page on unwanted telemarketing calls]
*[http://www.junkbusters.com/ht/en/fcc.html Junkbusters' Guide to US Laws on Telemarketing]
*[http://www.junkbusters.com/ht/en/fcc.html Junkbusters' Guide to US Laws on Telemarketing]
*[http://www.tcpalaw.com Legal resources and court cases regarding the TCPA]
*[http://www.junkfaxes.com/ Site related to TCPA enforcement by consumers]
*[http://www.junkfax.org/ Site dedicated to stoping junk faxes]

⚫
''See also: [[telemarketing]], [[autodialer]]''


[[Category:Telemarketing]]
[[Category:Telemarketing]]

Revision as of 23:57, 26 January 2007

The Telephone Consumer Protection Act of 1991 (TCPA) was passed by the United States Congress in 1991 ans signed into law by former President Bush as Public Law 102-243, updating the Communications Act of 1934. The current version of the statute is found principally at 47 U.S.C. 227. The TCPA is the primary law in the US governing the conduct of telephone solicitations, ie. telemarketing. The TCPA restricts the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages received by cell phones, and the use of fax machines to send unsolicited advertisements. It also specifies several technical requirements for fax machines, autodialers, and voice messaging systems -- principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.

General Provisions

Unless the recipient has given prior express consent, the TCPA and FCC rules under the TCPA generally require:

  • Solicitors may not call residences before 8 a.m. or after 9 p.m., local time.
  • The solicitor must maintain a "Do Not Call" (DNC) list, which must be honored for 5 years.
  • Solicitors must provide their name, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that person or entity may be contacted.
  • Solicitation calls cannot be made to residences with artificial voices or recordings.
  • Calls of any type cannot be made with artificial voices or recordings to cell phones or to any service in which the recipient is charged for the call.
  • Prerecorded or autodialed calls cannot engage two or more lines of a multi-line business or to any emergency number.
  • In a related section, unsolicited advertising faxes are also prohibited.
  • In the event of a violation of the TCPA, individuals are entitled to collect damages directly from a solicitor for $500 to $1,500 for each violation, or recover actual monetary loss, whichever is higher.

The major limitation of this law as enacted was that it was ineffective at proactively stopping unsolicited calls in that the consumer had to request of each telemarketer to be put onto that telemarketer's do-not-call list. This burden was lifted by the Do-Not-Call Implementation Act's establishment of the National Do Not Call Registry and adoption of the National Do-Not-Call list by the FCC in 2003

The CAN-SPAM Act made a minor amendment to the TCPA to explicitly apply the TCPA to calls and faxes originating outside the US.

The portions of the TCPA related to unsolicited advertising faxes were amended by the Junk Fax Prevention Act of 2005.

Unusual Statutory Provision

The TCPA is a relatively unique statute in that it is a federal law, but suits brought by consumers against violators are heard exclusively in state courts.[1]. This is a highly unusual situation in the US where lawsuits brought under federal laws can be heard by federal courts. This has resulted in a number of court cases addressing this unique provision and there have been divergent opinions from different court.

Major Court Cases

The TCPA's constitutionally was challenged by telemarketers soon after it was enacted. Two cases, Moser v. FCC, 46 F.3d 970 (9th Cir. 1995) cert. denied, 515 U.S. 1161 (1995) and Destination Ventures Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995) effectively settled this issue finding the restrictions in the TCPA were constitutional.

The US national elections in 2006 saw many questionable uses of prerecorded calls in political campaigns. In some instances, these calls were anonymous attack ads. Because the TCPA requires all telephone calls using a prerecorded messages to deliver a message to identify the caller, those calls arguably violated the TCPA. The first case to address this issue was brought by the Oklahoma Attorney General against a political consultant. The court decision, Oklahoma v. Pope, 2007 WL 108943 (W.D. Ok., Jan 9, 2007) held that the calls did indeed violate the TCPA. Further proceedings in that case are expected.

Law Review Articles

  • Robert R. Biggerstaff, State Courts and the Telephone Consumer Protection Act of 1991: must States Opt-in? Can States Opt-out? 33 Conn. L. Rev. 407 (2001).
  • Kevin N. Tharp, Federal Court Jurisdiction over Private Tcpa Claims: Why the Federal Courts of Appeals Got it Right, 52 Fed. Comm. L.J. 189 (1999).
  • David E. Sorkin, Unsolicited Commercial E-Mail and the Telephone Consumer Protection Act of 1991, 45 Buffalo L. Rev. 1001 (1997).
  • Hillary B. Miller and Robert R. Biggerstaff, Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes, Fed. Comm. L.J. 667 (2000)


More Information

See also: telemarketing, autodialer

  1. ^ Robert R. Biggerstaff, State Courts and the Telephone Consumer Protection Act of 1991: must States Opt-in? Can States Opt-out? 33 Conn. L. Rev. 407 (2001).
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