Telephone Consumer Protection Act of 1991

The Telephone Consumer Protection Act of 1991 (TCPA) was passed by the United States Congress in 1991 and signed into law by President George H. W. Bush as Public Law 102-243, amending 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 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 cannot be made with artificial voices or recordings to cell phones or to any service in which the recipient is charged for the call; however, debt collectors are permitted to use auto-dialers and pre-recorded messages to call any type of telephone, whether land line or cellular.
* 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 from 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 generally heard in state courts. [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).] . This has resulted in a number of court cases addressing this unique provision and there have been divergent opinions from different courts. More recent court decisions have found that at times TCPA cases can be brought in federal courts, for example when there is federal jurisdiction under the Class Action Fairness Act of 2005.

Major Court Cases

The TCPA's constitutionality 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

* [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.tcpalaw.com Court decisions and legal resources regarding the TCPA]

"See also: telemarketing, autodialer"

References