It’s time to talk about the Telephone Consumer Protection Act.
The Telephone Consumer Protection Act of 1991 (TCPA) is a federal law that restricts telephone solicitations “telemarketing” and the use of automated telephone equipment. The TCPA limits the use of auto dialing equipment “robo-calls,” artificial or prerecorded voice messages, fax machines and birthed the national “Do Not Call Registry.”
When congress passed the law telemarketers were always interrupting dinner and junk faxes were wasting all the fax paper. It’s clear that a lot has changed in the world of telecommunications since then. More recently, the Federal Communications Committee (FCC), the agency tasked with enforcement of the TCPA, promulgated rules targeting calls to cellphones, text messages and the sophisticated equipment and hardware used to annoy you today.
The following are common questions people have related to activities covered by the TCPA and the FCC rules.
Can telemarketers call my cell phone?
It Depends. The FCC rules prohibit any call that “includes or introduces an advertisement or constitutes telemarketing,” using automated equipment or an artificial or prerecorded voice to a cellular telephone without your prior written permission. This means that a real person, dialing a phone manually can still solicit business from you on your cell phone. However, these days that is very unlikely to happen, so chances are the call is illegal. However, there are a few exceptions including calls not made for commercial purposes, emergency calls, calls from non-profits and some health care providers.
Even if the call itself is legal, it may violate the TCPA if it doesn’t include each of the following:
- A clear statement at the beginning of the call identifying the business, individual, or other entity that is responsible for making the call;
- A clear statement made during the call listing the telephone number (other than that of the auto-dialer or prerecorded message player that placed the call) of such business, other entity, or individual;
- An automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request
What about telemarketing calls to my land line?
Telemarketers cannot call your land line using an artificial or prerecorded voice without your prior express written consent. Auto-dialing is ok, and the same exceptions and rules that apply to cell phone calls apply here.
How can I get telemarketers to stop calling me?
Add your phone number to the National Do Not Call Registry. You can register your home phone number or wireless numbers on the national list for free online at www.donotcall.gov, or by phone at 1-888-382-1222. Make sure to call from the phone number you wish to register. Your request should be good for 5 years.
What if I’m already on the Do-Not-Call list but still receive calls?
Inform your caller that the number they have called in on the Do-Not-Call list and that you no longer wish to receive calls. Record the name of the business, the number they used to contact you and the individual you spoke to (if it was in fact a human being). Better yet, record the conversation with one of any available smart phone apps. File a complaint with the FCC, and call an attorney.
Do pre-recorded calls from a debt collector violate the TCPA?
Before making auto-dialed or pre-recorded calls to your cell phone, a debt collector must obtain your express written or oral consent. Some debt collectors will claim that you agreed to receive such calls when you signed the contract that gave rise to the debt or if you listed your cell phone as your primary contact. This may or may not be true. In any case, request written proof that you consented to receive cell phone calls, ask for written validation of the debt and tell them you don’t want to be contacted again. Do all that again in writing. In addition to TCPA, the debt collector’s actions may violate the Fair Debt Collection Practices Act (FDCPA), so it’s important to record the details of the conversation and contact an attorney if the calls continue.
Unfortunately, if the calls are being directed to your land line, your consent is not required, but I suggest you still follow the same steps.
What should I do if I am receiving calls from a debt collector for somebody else’s debt?
While debt collectors can claim a debtor consented to pre-recorded robo-calls when they signed a contract, the same argument does not apply to innocent parties. If you are receiving calls for somebody else’s debt you may be eligible to receive compensation under the TCPA and the FDCPA. Keep good records of each call and contact an attorney immediately.
How long do I have to bring a claim under the TCPA?
The statue of limitations is 2 years from the violation, but every day you delay will make it harder to gather evidence to prove your case and will increase the chances you won’t be able to find the guilty parties.
What are my remedies under the TCPA?
The TCPA allows victims to file a lawsuit in any state or federal court where they can recover up to $500 for each call that violates the law. If the violations are “willful and knowing,” courts can award up to $1,500 per violation. As previously discussed, if the calls are related to the collection of a debt, there may also be FDCPA violations.