Disclaimer: This blog is for general information purposes only and does not constitute legal advice and does not create or intend to create an attorney-client relationship. This blog post should never be used to replace the advice of your personal attorney.
The Telephone Consumer Protection Act of 1991 (TCPA) became Public Law 102-243 (47 USC § 227) in the same year for the United States. President George H.W. Bush signed it as an amendment to the already antiquated Communications Act of 1934, once Congress approved the Act. The primary purpose of the TCPA is to regulate how telemarketers and autodialers operate. Other provisions deal with prerecorded messages, text messages, as well as junk fax. A different portion of the text deals with the manner telemarketing equipment works. The main provisions in that direction involve requirements for identification and contact information of the person or company making the call. The technical capacity for that is necessary for all systems telemarketers use:
- Fax machines
- Voice messaging systems
- SMS messaging systems
TCPA compliance is mandatory for all companies and telemarketers that conduct business over the phone. The Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) are responsible for making sure the rules get enforced. They have the power to launch investigations into a violation of the TCPA principles and then impose fines accordingly. If your company is conducting telephone solicitations of any sort, you must make sure that you know the TCPA inside and out. It’ll help you run your business smoothly and protect your customers from bother too.
Prohibitions Under The TCPA
For a telemarketer to follow the TCPA regulation to the letter, they may not:
- Call private residences outside the 8 a.m. – 9 p.m. window, Monday to Sunday
- Use prerecorded messages for telephone solicitation
- Use prerecorded voice messages and text messages to contact emergency lines such as police and fire departments, healthcare facilities, and healthcare professionals
- Send unsolicited faxes
- Auto-dial two or more lines of business subscribers
There are also precise requirements the company needs to fulfill to operate within the boundaries of the law.
One of the requirements is the preparation of a company-specific Do Not Call registry. The list should include the numbers of individuals and commercial entities that expressed their wish not to receive calls from the telemarketer. According to the current status of the TCPA, solicitors can’t call consumers for five years after their initial request.
The Federal DNC List
In addition to a company-specific DNC list, telemarketers need to have a subscription to the National Do Not Call Registry. It is an extension of the TCPA that came into existence in 2003. The Federal Communications Commission looks after the list. The DNC registry helps people who want to avoid unsolicited advertisements. They may enter their landline or cell phone numbers on the donotcall.gov website. Companies have to compare their existing call sheets against the registry and remove any matches. Calling a number on the DNC list with a sales pitch counts as a violation of TCPA compliance. Companies may still reach out to consumers on the list who have given them written permission. The call rules don’t apply if the number has been in the registry for less than 31 days. The same goes for established business relationships.
Other Instances When The National Do Not Call Registry Call Rules Don’t Apply
The Federal Communications Commission won’t launch an investigation into violations of the DNC rules when the called party received a message from:
- Non-profit organizations asking for charitable donations
- Political campaigns
- Commercial entities providing information about products and services that don’t contain a sales pitch
- Debt collection officers
- When prior express consent is present
Called parties that have filed a complaint in those instances won’t have the case followed up.
Other TCPA Requirements
All solicitors must provide their name, telephone number, and address to the person they are calling. That mandatory disclosure guarantees consumers they know who’s calling them at any time. Often a third-party telemarketing company makes the telemarketing calls. Then they have to provide not only their contact information but also that of the business on whose behalf they call.
The TCPA requires businesses to stay away from robocalls. They need to hire real people to do the telemarketing calls on their behalf. Consumers should always talk to a live caller and not listen to a prerecorded message. They should also report the call if they have been autodialed and not connected to a live agent within 2 seconds of answering.
What About Text Messages?
Wireless communication technology was in its infancy when the first version of TCPA came into being in 1991. That’s why the original text doesn’t have provisions for text messages and text messaging. As technology evolved, so did the law. The current status of text messaging advertising has a clear definition in terms of TCPA compliance. One of its most important aspects is that the consumer should give written permission to the company or organization before they can receive text messages from them. There is a distinction between obtaining a number and obtaining consent to receive SMS messages. A company may gather cell phone numbers in many different ways:
- They may come from an existing or former client
- The telemarketer may follow a potential lead
- They may make use of information from other members of a group or organization
To have a list of numbers doesn’t equal authorization to send them texts. You may still be compliant with the TCPA and send SMS messages without written consent. That’s possible in instances when the message contains information about a product or service your consumer wants to know about. Such things include delivery information, reminders for appointments, and others. If you want to learn more about the TCPA and text messages, get in touch with our experts at TCPA Protect right away.
So What’s Allowed?
The TCPA may sound a little restrictive to businesses, but that’s not exactly the case. First and foremost, it’s by design, a layer of defense for consumers against unethical or annoying telephone calls from telemarketers. When you come to think of it, the TCPA helps businesses protect their consumers. Studies show that the rules help companies conduct more efficient marketing campaigns via phone, text messages, and fax. The reports show higher levels of customer satisfaction too.
What telemarketers can do according to the TCPA is as follows:
- Call potential consumers during business hours with sales pitches
- Contact current customers with informational messages
- Send text messages and faxes, as long as they don’t violate the CAN-SPAM Act
TCPA compliance will help your business achieve its goals without trouble with the Federal Communications Commission.
How Do You Comply With TCPA?
If it’s your first telemarketing campaign, the issue with TCPA compliance might be a bit overwhelming. There is only one way to guarantee compliance. That’s to follow the rules and regulations of the Telephone Consumer Protection Act to the letter. Should you encounter confusing passages in the text and its amendments, you’d best consult with a lawyer. An attorney who has experience with the Telephone Consumer Protection Act will help you protect your customers from unlawful telemarketing calls, text messages, and junk fax. The most important thing to remember is that even if practices such as using an automatic telephone dialing system or atds for short, sounds like a good idea, you shouldn’t use them if the Act forbids it.
Whenever you feel like you need help tailoring your promotional campaign per the current state and federal law, you can count on TCPA Protect. Our specialists and services will help you do right by your consumers and your business.
What Happens In Case Of A Violation?
The FCC and FTC investigate certain violations of the Act, such as violations of the Federal Do Not Call List. Meanwhile, consumers have the right to file individual and class action lawsuits in federal courts. The court may grant $500 compensation per violation or recovery of actual monetary loss. On top of that, the consumer may seek an injunction. When the telemarketer has knowingly violated the TCPA, they may have to pay three times the penalty to the offended party – $1500. The federal courts’ right to decide on issues of the TCPA got guaranteed by the Supreme Court decision in Mims v. Arrow Fin. Servs., LLC.
Have any questions about TCPA and how to protect your customers? Contact TCPA Protect for all the right answers.