The Telephone Consumer Protection Act ("TCPA")

An Introduction

The Telephone Consumer Protection Act ("TCPA"), a federal Act enacted in 1991, was designed to deter unsolicited, automated phone calls to residential lines and cell phones. This federal law was adopted in response to increasing consumer complaints about telemarketing calls, faxes, and texts.

The Telephone Consumer Protection Act (TCPA) outlaws:

  • Automatic, artificial, or pre-recorded voice messages, without prior express consent, to any emergency telephone line, hospital patient, pager, cellular phone, or other service for which the receiver is charged for the call.
  • Artificial or pre-recorded voice messages to residential telephone lines without prior express consent.
  • Unsolicited advertisements to fax machines absent an "existing business relationship."
  • Automatic telephone dialing systems to engage two or more of a business' telephone lines simultaneously.
  • Making any telemarketing call to any residential subscriber who has registered her number on the national or company-specific "Do-Not-Call" list.
  • Making any telemarketing call outside the hours of 8 a.m. and 9 p.m.

Tying up needed phone lines, privacy invasions, and imposition costs to the recipient were three primary complaints that led to the TCPA. Legitimate debt collection attempts are not considered "solicitations" and are thus generally exempt from the TCPA.

The Federal Communications Commission ("FCC"), a federal agency in charge of regulating interstate wire communications, is responsible for interpreting the TCPA and implementing regulations carrying out its plain meaning and purpose.

See our prior blog post discussing the U.S. Supreme Court's (2012) declaring the federal judiciary's original jurisdiction over TCPA cases.

Defenses to TCPA claims:

  • When a recipient provides EXPRESS CONSENT to be called by automatic telephone dialing system, or by artificial or pre-recorded voice.
  • Exempt from liability are calls made for a commercial or business purpose – not unsolicited advertisements.
  • Calls to residential lines ("non cell phone"), even if made with pre-recorded or artificial voices, are permitted so long as the calls relate to a commercial or business purpose – not unsolicited advertisements. Calls by debt collectors are generally permissible as business-related calls.

The TCPA allows for the following damages to a prevailing plaintiff:

  • Actual monetary loss
  • $500 statutory damage for each violation; and/or
  • $1,500 for each violation, if in the court's discretion, each violation conducted knowingly and willfully.

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