The TCPA is a federal statute which prohibits certain automated calls, texts and faxes sent by telemarketers and others. The law is implemented by regulations from the Federal Communications Commission (“FCC”). The TCPA allows victims of illegal calls to collect damages of a minimum of $500 per illegal call, text or fax. Although the TCPA has been around since 1991, the FCC frequently updates its regulations to match changes in technologies and to better protect consumers from abusive telemarketing. New regulations went into effect in 2013 which radically increase consumer protection by requiring that telemarketers obtain a consumer’s consent in writing before making a call or sending a text.
What Types of Phone Calls are Prohibited?
Calls to Cell Phones
- Calls to cell phones using any form of artificial or pre-recorded voice without your consent are ILLEGAL.
- Calls made to cell phones using an “automated telephone dialing system,” without your consent are also ILLEGAL.
- Note: This includes telemarketing and non-telemarketing calls.
What Type of Consent is Required? Depends on the type of call.
Telemarketing or advertisement calls to a cell phone require written consent.
- So, if the caller is trying to sell you something, it must have your consent IN WRITING must unambiguously state your permission for automated calls from that company.
- For more information about what constitutes ‘Written Consent’ please click here.
Non-telemarketing calls to cell phones are also illegal if made without your consent. However, consent for some of these calls need not be in writing.
Even if you gave your consent to be called in the past, you can REVOKE the consent any time. Any call made after revocation is illegal. Click here for more about revoking your consent.
Telemarketers cannot call your landline using a pre-recorded or artificial voice without your prior consent IN WRITING.
Exceptions are as follows:
- Calls for emergency purposes
- Purely informational calls
- Calls made for a non-commercial purpose
- Commercial calls that do not include an advertisement or constitute telemarketing.
- Also, it is permissible to use an auto-dialer to call a landline, as long as there is no pre-recorded or artificial voice used.
- There are other exceptions that apply to calls made to any type of line. To read more, click here.
The TCPA prohibits any telephone solicitation before 8 a.m. and after 9 p.m. (the called party’s local time).
Restrictions on Lawful Prerecorded Calls
Even where an automated call is made with your consent, the call must follow certain rules.
- Any automated message must identity the caller
- Any automated message must provide a number that allows the consumer to make a do-not-call request.
- For automated telemarketing messages, the opt-out option must be automated and easily accessed by the consumer.
Even where you have consented to a call, that consent can always be revoked. Telemarketers are required to keep track of consumers who tell them not to call and they must respect those wishes.
You revoke any prior consent by opting out of future calls. This is true even if your number is not on a do-not-call list. If the telemarketer calls you again, they are violating the law. Keep in mind – this applies to text messages.
When revoking consent, choose a method that allows you to document the revocation, such as text, email or recorded call.
How Do I know if The Call was Made With an Autodialer?
It can be hard to tell if an auto-dialer has been used. But, the FCC and many courts broadly define “automated telephone dialing system” to include just about any telephone dialing software.
Many systems used by telemarketing firms will autodial many numbers at one time and will prompt a live person to come to the line as soon as the call is answered. In that case, there will be a delay and maybe a clicking sound after you pick up. If a live person comes to the line after a delay, you probably have been called by an autodialer.
But even if there is no delay or click, the call may still be illegal. Common sense is a good tool here. If you receive the type of telemarketing call that you suspect was directed at a large group of people, then the system used to call you was an “automated telephone dialing system.”
Remember also that if a prerecorded message or some artificial voice is used to call your landline, the call is illegal, no matter what system was used to dial your number.
Illegal Text Messages
The TCPA treats a text message as a “call”. So, the same rules that apply to cellphone calls apply to texts.
If you receive a text that is trying to sell you something and you have not given your consent, IN WRITING, to receive that text, then it is illegal. Even a non-telemarketing text without your consent is illegal unless it is for an emergency or is health-care related.
Revoking consent is as easy as replying to the unwanted text. If the texter keeps sending you texts, it is violating the law.
Suing For Illegal Calls and Texts
The TCPA allows victims of illegal calls or texts to sue the violator and recover a minimum of $500.00 per illegal call or text. If the violations are willful, then the penalty can be as high as $1,500.00 per call or text.
Because of the recoverable statutory damages, most consumer attorneys will represent victims of illegal calls with no out-of-pocket fee from the consumer.
A “telemarketing” call is any call that offers or promotes a product or service. Purely informational calls and calls for non-commercial purposes are allowed. Examples of “purely informational calls” include calls to announce school closings or to provide information regarding a bank account balance.
The purpose of the call matters.
Even if a call or text itself does not contain a sales pitch, it is telemarketing if its purpose is to promote future sales. The calls announcing a free offer or that you have won a prize are telemarketing. Inevitably, the consumer is required to call a number to receive the “free” gift or prize and then a sales pitch is given. “Free trips” offered by time-share marketers are classic examples. These are telemarketing calls because the purpose behind the call is to make a future sale.
The FCC calls these “dual purpose” calls and they are illegal if made without written consent. Other examples of dual purpose calls:
- Calls/texts from a mortgage broker announcing lower interest rates;
- Calls from a tax-relief company announcing a new IRS leniency program
- Calls from credit card companies offering overdraft protection.
WHAT CONSTITUTES “CONSENT”?
“Prior Express Written Consent”
As explained above, telemarketing calls made to a cell phone or landline and certain non-telemarketing other calls made to a cell phone require your Prior Express Written Consent. This means a writing which meets the following criteria:
- Must be made after “clear and conspicuous” disclosure of the fact that future automated calls will be made
- Must be a writing which unambiguously states that the consumer consents and agrees to be called
- “Writing” can be electronic. Consent can be express by email, electronically checked boxes or text replies, as long as it meets the other requirements
- Cannot be tied to the purchase of good or service
- Just providing a phone number is not enough
Prior (Unwritten) Consent
As explained above, some non-telemarketing calls do not require consent, but that consent does not have to be in writing. The level of consent can be provided in a number ways.
- Providing a number to company can be “prior express consent” to receive calls to that number.
- Consent may also be given verbally.
However, your consent is to be narrowly applied to the context in which it was given. If you give consent to be called by a specific company about a specific subject, that consent cannot be applied beyond those calls.
Advertiser Must Demonstrate Consent
Whatever level of required consent, the telemarketer has the burden of proving that consent was given. If a dispute concerning consent arises, the consumer will not be required to provide the absence of consent. It will be up to the telemarketer to show some evidence of consent in order to prove that the call was legal. If it has no records documenting your consent, then there is no consent for the call.
Cell Phone Numbers Ported from a Landline:
However, if the caller knows this is a cell number or if the number is already listed on the caller’s do-not-call list or the national do-not-call list, the exemption does not apply.
Calls by Tax Exempt Non Profits.
A call from a tax-exempt non-profit is not a “telephone solicitation.”
This excludes these calls from most of the meaningful parts of the law. However, more of the Act’s provisions apply to companies hired by non-profits to make calls. Those companies must comply with the FCC’s company-specific do-not-call lists.
Calls or Texts from your Mobile Service Provider About Your Service
These are allowed.
Calls Related to Healthcare
Not subject to the written consent requirement. Caller must still have consent, but consent can be verbally provided or implied by the providing of a number.
Calls to Hospital Rooms or Assisted Living Facilities
No calls using a ATDS or prerecorded or artificial voice may be made to a patient’s room in a hospital or other health care facility, elderly home or other similar facility.
Calls to Emergency Numbers
No calls using a ATDS or prerecorded or artificial voice may be made to any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency.