What is the Telecommunications Consumer Protection Act of 1991 (TCPA)
The Telecommunications Consumer Protection Act of 1991 (TCPA) is a U.S. law created in response to consumer concern over telemarketing. The act sets guidelines for telemarketing practices, places greater restrictions on the use of automated telephone equipment, and requires that entities making telephone solicitations maintain do-not-call lists. The TCPA was a response to complaints directed at the Federal Communications Commission (FCC) regarding the use of telephones for solicitation of business. It was signed into law by President George H. W. Bush.
BREAKING DOWN Telecommunications Consumer Protection Act of 1991 (TCPA)
The Telecommunications Consumer Protection Act of 1991 limits the use of a variety of telemarketing devices and practices. They include prerecorded messages, artificial (robo) messages, auto-dialing systems, text messages and fax machines. The TCPA also stipulates that autodialing and voice messaging equipment, as well as fax machines, must convey the identification and contact information of their user in their messages.
Despite the TCPA's rules, the number of robocalls has skyrocketed over the past few years. April 2018 alone saw some 3.4 billion robocalls made in the U.S.; the FCC receives about half a million complaints a month. Unfortunately, the incentive to engage in robocalling is too big and the cost of doing it remains very low. In addition, software helps disguise callers' identities, and voice-over-internet protocol (VOIP) calling allows many robocallers to work overseas — far from the reach of U.S. authorities.
The full text of the Telecommunications Consumer Protection Act of 1991 can be found in Title 47, Chapter 5, Subchapter II, Part I, Section 227 of the U.S. Code and on the FCC's TCPA Rules page.
Telecommunications Consumer Protection Act of 1991: Provisions
Telemarketers/solicitors who have not obtained prior consent from call or message recipients are limited under the following TCPA provisions:
- Telemarketers/solicitors may not call residences by using a recording or artificial voice.
- They may not call residences outside of the hours of 8 a.m. and 9 p.m. (local time).
- They must give their name, who they are calling on behalf of, and a phone number or address for that person or entity.
- Telemarketers are prohibited from making any automated calls or those using an artificial or prerecorded voice to emergency phone lines (911 or hospital), doctors' offices, mobile phones or any other recipient that will be charged for the call.
- Autodialing two or more lines of the same business is also prohibited.
- They may not send unsolicited faxes featuring advertising.
- Telemarketers/solicitors are required to maintain company-specific do-not-call lists of recipients who do not wish to be called and to honor that list for five years, as well as to honor the National Do Not Call Registry.
The TCPA also prescribes penalties for violating such rules. For example, a subscriber may sue for $500 for each violation or recover damages, seek an injunction or sue for both. In cases of willful violation of the TCPA, subscribers can claim treble damages for each instance. For more, see the FCC's page on Telemarketing and Robocalls.
Telecommunications Consumer Protection Act of 1991: Updates
As a follow-up to the TCPA, in 2003 the Federal Trade Commission and the FCC collaborated to establish a nationwide do-not-call registry to further reduce the number of unwanted phone calls received by households. And in 2012, the FCC revised its TCPA rules with the following provisions requiring telemarketers to:
- Obtain prior express written consent from consumers before robocalling them.
- Cease using an "established business relationship" to avoid getting consent from consumers when calling their home phones.
- Provide an automated, interactive opt-out mechanism during each robocall so consumers can immediately tell the telemarketer to stop calling.
A key decision in the U.S. Court of Appeals for the D.C. Circuit in March 2018 (ACA International v. Federal Communications Commission) favored the telemarketing industry as it sided with plaintiffs who claimed that the TCPA penalized responsible businesses. At issue was the definition of "automated telephone dialing system" and the meaning of "called party" in certain contexts.