Join DMA

Telephone Consumer Protection Act (TCPA) and Robocalls and Text Messaging

NOTE: This is not legal advice. The DMA is providing you with general information about the rules below and DMA-related member guidelines. For legal questions specific to your company, please ensure you are working with your own legal counsel who can represent your organization.

The Telephone Consumer Protection Act was passed in 1991. The Federal Communications
Commission’s (FCC) rules and regulations implementing the act went into effect on December
20, 1992. This rule is analogous to the rule regulated by the Federal Trade Commission, the
Telemarketing Sales Rule (TSR) as set established by the Do-Not-Call Implementation Act
(DNCIA, 2003). The latest changes to the FCC’s TCPA go into effect on October 16, 2013.

The rules were recently updated. Regulations were issued by the Federal Communications
Commission in February of 2012 with an effective date of October 16, 2013 due to consumer
complaints about unwanted prerecorded telemarketing calls and texts, consistently in the top
three consumer complaint categories at the FCC in 2011.

According to the agency, artificial, or “robocalls” invade consumer privacy, and can in the case
of calls to wireless devices, eat up minutes. A “robocall” is a prerecorded telemarketing
message. The new rules reduce regulatory uncertainty and are meant to “maximize
consistency” with the other federal agency that regulates calls, the Federal Trade Commission.
The rule applies to all autodialed robocalls to residential land lines, and residential and business
mobile phones. Moreover, text messaging is also covered under the autodialer definition of the
FCC.

RECENT CHANGES:

  1. Require marketers to obtain prior written express consent from an individual for that
    marketer before any robocalls or text messaging can be made; this includes using an
    electronic form for the signature to the extent such a signature is valid under law such as
    set forth in the E-SIGN Act or state contract law. The rules for obtaining prior express
    written consent mirror those required by the FTC for prerecorded sales messages.

    • When obtaining prior written express consent the marketer must disclose to the
      individual that giving permission will allow the marketer to make autodialed robocalls
      and/or text messages and that providing consent is not a condition of any purchase.
      Both disclosures should be clearly displayed at the time when the marketer is
      seeking written consent.
    • Since most marketers who have already obtained written consent have not displayed
      the two disclosures in a. above, such prior written consent does not satisfy the new
      rule. [Note: DMA is petitioning the FCC to accept the pre October 16, 2013 prior
      written consent without the disclosures.]

    See: http://www.business.ftc.gov/documents/bus27-complying-telemarketing-sales-rule

  2. The rule eliminates the former “established business relationship” exemption. The
    exemption was allowed in the prior rule for robocalls to residential lines, but this
    exemption is now eliminated.
  3. Requires telemarketers to provide an automated interactive opt-out mechanism during
    each robocall so that consumers can immediately tell the telemarketer to stop calling.
  4. Strictly limits the number of abandoned or “dead air” calls that telemarketers make within
    each calling campaign. The permissible 3% call abandonment rate should be calculated
    for each calling campaign so that telemarketers cannot shift more abandoned calls to
    certain other campaigns.
  5. Other kinds of calls not impacted are as follows: Prerecorded informational calls, such as
    those relating to school closings and flight changes can continue to be available to
    consumers who wish to receive them. Further, prerecorded calls from entities regulated
    by the Health Insurance Portability and Accountability Act of 1996 to residences are
    exempt. Such non-commercial calls are also allowed by tax-exempt nonprofit
    organizations and political organizations.

BACKGROUND ON TCPA:

The most significant part of the FCC’s TCPA regulations concern commercial solicitation calls
made to residences. Those making the calls are required to:

  • 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. The FCC
    amended its rules in 2003 so that organizations use the FTC National Do Not Call List
    Registry process. (See https://www.donotcall.gov/) When such a do not call 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. It 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.

A call is exempt from the TCPA if the call:

  • 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.

Other important provisions of the TCPA include:

  • A ban on sending unsolicited advertisements by auto-dialer, prerecorded voice
    message, or fax to anyone without prior express consent.
  • A ban on auto-dialers 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 an auto-dialer to engage two or more lines of a multi-line
    business.
  • A requirement that anyone using an auto-dialer 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.

  • Customers must be able to opt-out of future robocalls during a robocall. If there is an opt
    out requested, the call must be disconnected immediately and no future calls can be
    made to that consumer by that organization.

The TCPA can be enforced in at least three different ways:

  • 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 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, auto-dialers, 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.

Consumers with complaints go to: http://www.fcc.gov/complaints

For questions or concerns, DMA members may contact ethics@the-dma.org or government@the-dma.org