TCPA - Telephone Consumer Protection Act

What is the Telephone Consumer Protection Act (TCPA)?

The TCPA was passed into law in 1991. The Federal Communications Commission (“FCC”) is empowered to issue rules and regulations implementing the TCPA. Among other things, the TCPA allows individuals to file lawsuits and collect damages for receiving unsolicited telemarketing calls, faxes, pre-recorded calls or autodialed calls.

 

Beginning October 16, 2013, the “established business relationship” exemption for pre-recorded telemarketing calls to residential landlines will be eliminated.

In the past, advertisers could rely on an established business relationship (such as a previous purchase) to circumvent the need to obtain a consumer’s written consent to receive telemarketing calls. That exception to the consent requirement will no longer exist after this year. Advertisers will have to obtain written consumer consent, outlined above, even if they previously had a business relationship with the consumer.

 

What are the penalties for failing to comply with the TCPA?

The TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per unsolicited call/message. In determining the final amount of statutory damages to award, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA. Considering that telemarketing campaigns often involve thousands to, in some cases, millions, of calls/text messages, potential damages under the TCPA may escalate very quickly.

 

Checklist for Written Consent requirements:

 

Sample Consent Language:

I hereby consent to receive autodialed and/or pre-recorded telemarketing calls from or on behalf of [ADVERTISER] at the telephone number provided above.[5] I understand that consent is not a condition of purchase.

 

TCPA Legislation References

Check out these sites and articles for more information on TCPA, changes to the legislation and legal exposure for those who do not gain prior consent before contacting customer and prospects on their cell phones.

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