Telephone Consumer Protection Act of 1991
Encyclopedia
The Telephone Consumer Protection Act of 1991 (TCPA) was passed by the United States Congress
in 1991 and signed into law by President George H. W. Bush
as Public Law 102-243, amending the Communications Act of 1934
. The current version of the statute is found principally at 47 U.S.C. 227. The TCPA is the primary law in the United States
governing the conduct of telephone solicitations, i.e., telemarketing
. The TCPA restricts the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages received by cell phones, and the use of fax machines to send unsolicited advertisements. It also specifies several technical requirements for fax machines, autodialers, and voice messaging systems—principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.
(FCC) rules under the TCPA generally require:
The major limitation of this law as enacted was that it was ineffective at proactively stopping unsolicited calls in that the consumer had to request of each telemarketer to be put onto that telemarketer's do-not-call list. This burden was lifted by the Do-Not-Call Implementation Act's establishment of the National Do Not Call Registry and adoption of the National Do-Not-Call list by the FCC in 2003
The CAN-SPAM Act made a minor amendment to the TCPA to explicitly apply the TCPA to calls and faxes originating from outside the U.S.
The portions of the TCPA related to unsolicited advertising faxes were amended by the Junk Fax Prevention Act of 2005
.
.
The TCPA was held to regulate unsolicited text messages in the Ninth Circuit.
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
in 1991 and signed into law by President George H. W. Bush
George H. W. Bush
George Herbert Walker Bush is an American politician who served as the 41st President of the United States . He had previously served as the 43rd Vice President of the United States , a congressman, an ambassador, and Director of Central Intelligence.Bush was born in Milton, Massachusetts, to...
as Public Law 102-243, amending the Communications Act of 1934
Communications Act of 1934
The Communications Act of 1934 is a United States federal law, enacted as Public Law Number 416, Act of June 19, 1934, ch. 652, 48 Stat. 1064, by the 73rd Congress, signed by President Franklin D. Roosevelt, codified as Chapter 5 of Title 47 of the United States Code, et seq. The Act replaced the...
. The current version of the statute is found principally at 47 U.S.C. 227. The TCPA is the primary law in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
governing the conduct of telephone solicitations, i.e., telemarketing
Telemarketing
Telemarketing is a method of direct marketing in which a salesperson solicits prospective customers to buy products or services, either over the phone or through a subsequent face to face or Web conferencing appointment scheduled during the call.Telemarketing can also include recorded sales pitches...
. The TCPA restricts the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages received by cell phones, and the use of fax machines to send unsolicited advertisements. It also specifies several technical requirements for fax machines, autodialers, and voice messaging systems—principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.
General provisions
Unless the recipient has given prior express consent, the TCPA and Federal Communications CommissionFederal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
(FCC) rules under the TCPA generally require:
- Solicitors may not call residences before 8 a.m. or after 9 p.m., local time.
- The solicitor must maintain a "Do Not Call" (DNC) list, which must be honored for 5 years.
- Solicitors must provide their name, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that person or entity may be contacted.
- Solicitation calls cannot be made to residences with artificial voices or recordings.
- Calls cannot be made with artificial voices or recordings to cell phones or to any service in which the recipient is charged for the call.
- Prerecorded or autodialed calls cannot engage two or more lines of a multi-line business or to any emergency number.
- In a related section, unsolicited advertising faxes are also prohibited.
- In the event of a violation of the TCPA, individuals are entitled to collect damages directly from a solicitor for $500 to $1,500 for each violation, or recover actual monetary loss, whichever is higher.
The major limitation of this law as enacted was that it was ineffective at proactively stopping unsolicited calls in that the consumer had to request of each telemarketer to be put onto that telemarketer's do-not-call list. This burden was lifted by the Do-Not-Call Implementation Act's establishment of the National Do Not Call Registry and adoption of the National Do-Not-Call list by the FCC in 2003
The CAN-SPAM Act made a minor amendment to the TCPA to explicitly apply the TCPA to calls and faxes originating from outside the U.S.
The portions of the TCPA related to unsolicited advertising faxes were amended by the Junk Fax Prevention Act of 2005
Junk Fax Prevention Act of 2005
The Junk Fax Prevention Act of 2005, Pub L. No. 109-21, 119 Stat. 359 , was passed by the United States Congress and signed into law by President George W. Bush on July 9, 2005...
.
Unusual statutory provision
The TCPA is a relatively unique statute in that it is a federal law, but suits brought by consumers against violators are generally heard in state courts. This has resulted in a number of court cases addressing this unique provision and there have been divergent opinions from different courts. More recent court decisions have found that at times TCPA cases can be brought in federal courts, for example when there is federal jurisdiction under the Class Action Fairness Act of 2005Class Action Fairness Act of 2005
The U.S. Class Action Fairness Act of 2005, 28 U.S.C. Sections 1332, 1453, and 1711–1715, expanded federal jurisdiction over many large class-action lawsuits and mass actions taken in the United States....
.
Major court cases
The TCPA's constitutionality was challenged by telemarketers soon after it was enacted. Two cases, Moser v. FCC, 46 F.3d 970 (9th Cir. 1995) cert. denied, 515 U.S. 1161 (1995) and Destination Ventures Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995) effectively settled this issue finding the restrictions in the TCPA were constitutional.The TCPA was held to regulate unsolicited text messages in the Ninth Circuit.
Law review articles
- Robert R. Biggerstaff, State Courts and the Telephone Consumer Protection Act of 1991: must States Opt-in? Can States Opt-out? 33 Conn. L. Rev. 407 (2001).
- Kevin N. Tharp, Federal Court Jurisdiction over Private TCPA Claims: Why the Federal Courts of Appeals Got it Right, 52 Fed. Comm. L.J. 189 (1999).
- David E. Sorkin, Unsolicited Commercial E-Mail and the Telephone Consumer Protection Act of 1991, 45 Buffalo L. Rev. 1001 (1997).
- Hillary B. Miller and Robert R. Biggerstaff, Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes, Fed. Comm. L.J. 667 (2000)