The Telephone Consumer Protection Act of 1991
Amending the Communications Act of 1934, the TCPA was signed into law in 1991 as a response to a growing rise in unregulated and harassing telemarketing calls and faxes.
The TCPA restricts telephone solicitations (i.e. telemarketing) and the use of automated phone equipment. The Act limits the use of pre-recorded voice messages, automatic dialing, and SMS and fax use. Without explicit customer consent, companies must adhere to strict solicitation rules, solicitors must honor the National Do Not Call Registry, and subscribers may sue a company that does not follow the TCPA guidelines.
Consumer consent is an essential defense under the TCPA and should be a primary focus of any business that communicates with consumers and customers directly via telephony.
The Emergence of the Do Not Call Registry
With the passing of the TCPA, Congress delegated do-not-call rules to the FCC (Federal Communications Commission), who initially required every company to build and maintain their own do-not-call database. In 2003 the National Do Not Call Registry was created by the Federal Trade Commission (FTC), implementing regulations that prohibit commercial telemarketers from making unwanted, unsolicited sales calls.
Interpreting the TCPA: Declaratory Ruling and Order of 2015
Over time, the TCPA was amended and more clearly defined. In July 2015, the FCC officially released the TCPA Declaratory Ruling and Order which addressed petitions and requests for clarity on how the TCPA is to be interpreted by the FCC. This order defined a handful of terms found in the TCPA and further clarified restrictions on telemarketers and consumer rights. Some key components on this ruling include:
- Telephone service providers can offer robocall blocking to consumers.
- Telemarketers may not use automated dialing to call wireless phone and leave pre-recorded telemarketing messages without consent.
- Consumers may revoke consent to receive calls or SMS messages in any ‘reasonable’ way, at any time.
- Callers must cease calling any reassigned phone numbers (wired and wireless).
- Consent ‘survives’ when a person ports their landline phone number to a wireless number.
- Some ‘urgent circumstances’ still allow a company to call or send SMSes to wireless phones without prior consent, such as alerts about potential fraud or reminders of urgent medication refills. However, the company instigating such communications must offer consumers an ‘opt-out’ option.
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