Introduction

The Telephone Consumer Protection Act (TCPA) of 1991 is a U.S. federal statute that places restrictions on the use of automated dialing and artificial voice (“robocalls”) to residential and mobile phone lines for solicitation purposes. The Federal Communications Commission (FCC) regulations at CFR Title 47, Part 64, subpart L: “Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising” further implement the TCPA, including its application to telephone, voicemail, SMS, and facsimile messages.

Applicability

The TCPA applies to any person in the United States employing automated telephone or facsimile technologies to advertise the commercial availability or quality of any property, goods, or services. Automated telephone technologies includes automated SMS (text) messages.

Compliance Tip: The TCPA does not apply to non-profit entities and commercial calls made for purposes other than solicitation.

Requirements

The TCPA requires that prior express consent be obtained from the called party for any call (other than a call made for emergency purposes) using any automatic telephone dialing system or an artificial or prerecorded voice.

The TCPA also requires that callers establish procedures to maintain company-specific do-not-call lists and offer automated opt-out mechanisms in automated messages.

Compliance Tip: The FCC’s company-specific do-not-call lists are different than the FTC’s National Do-Not-Call Registry.

Enforcement & Liability

The TCPA may be enforced in the following ways:

  • FCC enforcement actions
  • State attorneys general lawsuits
  • Individual or class plaintiffs under a private right of action

Compliance Tip: Individual plaintiffs can be awarded statutory damages up to 3x the actual monetary damages or $500, whichever is greater, for violations that are knowing or willful. TCPA class actions are increasingly common.

Penalties

Plaintiffs may recover actual monetary damages or $500 per violation, whichever is greater. If the violation is knowing or willful, the court may award 3x the statutory amount.