What Is the TCPA? Your Definitive Legal Guide

Type: Blog
Topic: Compliance

The Telephone Consumer Protection Act (TCPA) is one of the most significant pieces of consumer privacy legislation ever enacted.

The TCPA gives everyday consumers relief from harassing and unregulated telemarking communications. However, since many businesses still rely on phone calls and text messages in their marketing efforts, maintaining compliance can be challenging.

To stay compliant with TCPA law and avoid hefty fines associated with violations, it’s important to understand what the Telephone Consumer Protection Act is.

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Overview of the Telephone Consumer Protection Act

The TCPA was signed into law by President George H.W. Bush in 1991 in response to a dramatic increase in unwanted telemarketing phone calls and faxes. More than three decades later, the TCPA remains the foundation of federal telemarketing regulations. The Rules and Regulations Implementing the TCPA set some key guidelines for appropriate telemarketing practices including:

• Limiting the use of pre-recorded messages and automatic telephone dialing systems (ATDS)
• Restrictions on automated phone equipment 
• Maintenance of Do Not Call lists

However, the TCPA has not remained static since 1991. Several revisions have been made to the law in the interest of consumer privacy as technology advances.

History and Development of the TCPA

Large-scale outbound calling campaigns became a highly successful marketing strategy in the 1980s. Call centers using ATDSs experienced a boom in popularity as preferred telemarketing channels.

However, every day American consumers became increasingly frustrated with the volume of unsolicited sales calls and faxes they received. In response, the United States Congress enacted the TCPA to protect consumer privacy in 1991.

In accordance with the TCPA, the Federal Communications Commission (FCC) initially required companies to build and maintain their own do-not-call database. In 2003, the Federal Trade Commission (FTC) created the National Do Not Call Registry to prohibit unwanted telemarketing communications.

Collections businesses were reigned in from making harassing phone calls in the Fair Debt Collection Practices Act of 2010. And in 2015, major revisions were made to the TCPA to further restrict harassing telemarketing practices and protect consumer rights.

Some key provisions of the 2015 TCPA revisions include:

• Telephone service providers can offer to block robocalls 
• Restriction of automated dialing to wireless phones without consent
• Consumer right to revoke consent to receive calls at any time

Updates and Trends with the TCPA

Since its inception, there have been numerous court decisions related to the TCPA. Perhaps the most significant of recent decisions is Facebook v. Deguid which was related to the definition and function of autodialers to send unsolicited text messages.

But beyond these court cases, there have been a few major updates to the TCPA. In 2013, a revision was made to officially prohibit any pre-recorded voice messages made to landline phones for telemarketing purposes without permission.

And in 2015, the Federal Communications Commission released a Declaratory Ruling and Order to address clarity concerns on how the FCC interprets and enforces TCPA law. Updates were made to accommodate new telecommunications technologies. Clear definitions of an autodialer, SMS texts, reassigned phone numbers, revoking prior express consent, and other crucial terminologies were introduced.

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TCPA Risks

In today’s constantly evolving communications landscape, complying with TCPA law can be challenging. There are a few main risks that modern businesses face.

Data Accuracy

Marketing data acquired from lead generators and outside lists can be inaccurate. False contact information often leads to violations.

Reassigned Numbers

As more and more consumers adopt cellular telephone technology, phone numbers are continuously dropped and reassigned. Contacting a reassigned phone number risks TCPA violation.

Do Not Call Violations

Do not call (DNC) compliance is becoming more important following the decision of the Supreme Court in Facebook v Duguid. Increased telemarketing regulations on the state level elevate the risk of DNC violations.

How the National Do Not Call Registry Is Involved

The TCPA granted power to the FTC and FCC to create a national do not call list. While it took more than a decade to actually establish this do not call database, it has become a cornerstone of TCPA law.

The National Do Not Call Registry is used to prohibit businesses from calling restricted phone numbers. Before making any sales calls, telemarketers must comply with the do not call request and ensure that no calls are made to phone numbers listed on the National Do Not Call Registry. However, certain types of telemarketing are allowed, such as:

• Tax-Exempt Nonprofit Organizations and Charities
• Political Organizations
• Telephone Surveys

Who Does the TCPA Apply to?

The TCPA applies to any individual, business organization, or other such entity that uses telephone communications for marketing or solicitation purposes. This includes:

• Voice Calls
• SMS Text Messages
• Faxes
• VoIP Calls

The law applies not only to those responsible for conducting communications, such as call center employees or other third-party agents, but also places liability on the entities responsible for developing calling campaigns. 

How is the TCPA Enforced?

The TCPA is enforced in a variety of ways. Private citizens may bring individual lawsuits and class actions against entities that violate regulations. Penalties can amount to $500 or more per violation and $1500 for willful TCPA violations. These fines can amass quickly, and it’s not unusual for settlements in TCPA class actions to reach millions of dollars.

More broadly, government agencies like the FCC and FTC are responsible for enforcing TCPA compliance. At least 151 enforcement actions against telemarketers have been taken by the FTC alone, resulting in over $178 million in civil penalties and $112 million in restitution or disgorgement.

Why the TCPA Is Important for You

The TCPA is important for both everyday consumers and businesses conducting telemarketing campaigns. For consumers, it means relief from harassing telecommunications, freeing up their personal phone lines for essential communications.

For businesses, it means making efforts to comply with TCPA regulations in order to avoid costly fines and litigation.

The primary frustration with automated telemarketing communications to consumers is certainly the persistence of unwanted calls. It can be incredibly disappointing, if not outright annoying, to answer the phone expecting a personal conversation but instead hear an automated marketing recording. But beyond personal frustrations, a high volume of telemarketing calls can have real consequences to the private communications of American consumers.

An overabundance of telemarketing calls can decrease trust in phone communications, making consumers less likely to answer calls overall. This can be highly detrimental in emergency situations where individuals need to be contacted immediately but instead ignore their ringing phone. Pre-recorded calls can also tie up phone lines when emergency services are trying to contact certain individuals.

Concerns such as this were the impetus behind introducing and eventually passing the TCPA in 1991. And as important as the TCPA is to consumers, it’s doubly important for businesses.

The TCPA is important because it sets guidelines for appropriate telephone solicitations. Regulatory compliance is essential for any organization interested in implementing telemarketing campaigns. Failure to comply can result in serious fines of between $500 and $1500 per violation. In some cases, these fines are incurred per call, which can amass to a crippling sum for negligent telemarketers.

The good news is that savvy telemarketers can avoid risks by staying compliant with established regulations.

Compliance with TCPA

Compliance with TCPA involves adhering to a few particular provisions.

Restricted Call Times

Calls can only be made to residential consumers between the hours of 8 AM and 9 PM in the consumer’s time zone.

Automatic Telephone Dialing Systems (ATDS)

Autodialed telecommunications to consumers who might be charged for the telephone call without prior express written consent are prohibited.

Need for Identification

Callers must provide accurate contact information including their name, company, and telephone number or address.

Internal DNC List

Telemarketers are expected to keep an updated list of consumers who do not want to be contacted via phone call or text.

Robocall Restrictions

Use of artificial or prerecorded voice messages is prohibited in landline or wireless communications without prior express written consent

National Do Not Call Registry

Telemarketers are expected to observe do not call rules and respect the privacy of phone numbers listed on the National Do Not Call Registry.

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PossibleNow helps companies like yours handle multi-channel direct marketing compliance. Through our trusted technology platform DNCSolution, we mitigate the risk of violating Do Not Contact regulations such as TCPA, CANSPAM, and CASL.

Our team’s strategic thinking and expertise will deliver holistic solutions to your regulatory compliance needs. Backed by world-class infrastructure, application training, and customer support, you can trust PossibleNow to deliver the results you want from your communication programs.

FAQs

What does the TCPA prohibit?

The TCPA restricts telephone solicitations including regulations for call times, automated calls, artificial or prerecorded voice messages, and text messages.

What does TCPA mean?

TCPA stands for “Telephone Consumer Protection Act.” The law was introduced to protect consumers from unwanted phone calls and other telecommunications.

What are the TCPA requirements?

TCPA compliance requirements include observing call time restrictions, identification requirements, avoiding numbers listed on the National Do Not Call Registry and internal DNC lists, and refraining from use of robocalls or ATDS.

What calls are covered under TCPA?

Calls made by any individual, business organization, or other such entity that uses telephone communications for marketing or solicitation purposes are covered under TCPA.