TCPA -- This is serious business
The TCPA is the Telephone Consumer Protection Act that was enacted to protect consumers from unsolicited telemarketers and other types of marketers who do not have permission to contact them or who break other TCPA laws, such as:
- Placing robocalls (using an automated dialing machine and/or pre-recorded message);
- Sending unsolicited text messages;
- Calling or texting people who never established a business relationship with the calling company;
- Not providing an option to opt out of the calls/texts;
- Calling numbers listed on the National Do Not Call Registry or on company-specific “do-not-call” lists;
- Sending unsolicited advertisements to any fax machine — both businesses and residences — without the recipient’s prior express invitation or permission (i.e., “junk faxes”);
- E-mail spam containing misleading or false information
- Other TCPA violations.
Unless you have provided prior express consent to be contacted, the Telephone Consumer Protection Act generally prohibits the following - even if you’ve established a business relationship with the company:
• Calls placed to residences before 8 am or after 9 pm, local time.
• Calling consumers who specifically asked the company not to call them (companies must maintain and honor an internal “do-not-call” list for 5 years).
• Calling consumers placed on the National Do Not Call Registry.
• Failing to identify the person or entity on whose behalf the call is being made and providing a telephone number or address at which that person or entity may be contacted.
• Using an artificial voice or a recorded message.
• Using an automated dialing machine to place the call.
• Sending unsolicited advertising faxes.
A robocall is any phone call made using an automatic dialing system (equipment or computer software that dials phone numbers without human intervention) or that contains a pre-recorded message or artificial voice.
Even if a live person is on the line, the call may have been made using an auto dialer. You can often tell if you notice a period of “dead air” before the live person comes on the line.
Robocalls have been frequently used for automated marketing, as seen in the number of companies that have been hit with lawsuits after being faced with allegations of using robocalls to promote their services, with fines of up to $16,000 per call made.
The Federal Communications Commission (FCC), which enforces the Telephone Consumer Protection Act, has interpreted robocalls to include SMS text messages, and ringless voice messages directed at cell phone voice mailboxes.
There are certain calls that are not subject to the rules of the TCPA. This list includes calls that are made from tax-exempt non-profit companies, political groups, calls made with a non-commercial intent, or calls that do not include any unsolicited promotion.
For a company to legally place a robocall, it must first have “prior express consent.” Under old TCPA rules, the FCC interpreted this to include oral approval or implied approval to receive calls, such as by providing your phone number to the company when purchasing a product or service.
However, this “established business relationship” exemption no longer applies. The FCC’s interpretation of prior express consent now requires a signed, written agreement, specifically agreeing to receive telemarketing calls or text messages via an auto dialer and/or pre-recorded voice. This rule does not apply to debt collection calls or texts unless they contain any sort of advertisement or marketing material.
FEDERAL TELEPHONE AND CONSUMER PROTECTION ACTS - SUMMARIES
The law implements new consumer protections, gives more teeth to law enforcement efforts and takes other steps to combat unwanted robocalls.
President Trump signed the TRACED Act, the first federal law designed to curb unwanted robocalls. With the problem of robocalls running rampant, the legislation passed with strong support in both the Democratic-led House and the Republican-led Senate.
The legislation takes on the problem from multiple fronts. First, it gives the Federal Communications Commission (FCC) more authority to go after the scammers responsible for unwanted robocalls. It allows the FCC to go after scammers the first time they break the law and extends the statute of limitations by up to four years in some cases. It also ups the financial penalties against robocallers.
Additionally, it encourages stronger Justice Department criminal prosecution of unlawful robocalls by requiring the FCC to provide the DOJ with evidence of criminal robocall violations.
Next, the law requires all carriers to eventually implement new technologies to authenticate caller-ID information, preventing call spoofing -- at no additional line-item cost to consumers. As Congress notes in its summary of the law, many illegal robocalls use call spoofing so the call appears to be coming from a trusted number.
The FCC is already planning to mandate that carriers implement its SHAKEN/STIR authentication system to help combat robocalls. In March, AT&T and Comcast announced that they successfully tested the first SHAKEN/STIR-authenticated call between two different telecom networks.
Meanwhile, the law additionally says consumers should also get access to robocall blocking at no additional line item charge on their bill.
The law also requires the FCC to put new limits on robocalls that are legal, even without consumer consent -- such as calls from financial institutions regarding potentially fraudulent transactions. Specifically, the law calls for new limits on the kinds of organizations that may make such calls, who can receive such calls and the number of calls allowed under the exemption.
The TRACE Act also clarifies that when a person gets a new phone number, robocallers cannot keep calling to look for the person previously had that number.
It also requires the FCC to work to stop one-ring scams and helps the FCC and carriers trace back the origin of unlawful robocalls.
The law passed in the House earlier this month by a vote of 417 to 3, and it passed in the Senate by voice vote.
During the legislative debate, Congress put out a white paper with data on the extent of the robocall problem: In 2018, there were an estimated 48 billion robocalls, up over 64 percent since 2016, according to YouMail. Meanwhile, First Orion predicts that this year 44.6 percent of all calls to mobile phones will be scam calls.
In a statement, the cloud communications company Twilio said the legislation should have a notable impact: "The law will aid efforts among law enforcement authorities, government agencies and the communications industry to stop the bad calls and restore consumers' faith that they will receive the calls they want. With its strong emphasis on the implementation of the SHAKEN/STIR protocol and consumer protection efforts, we expect to see a dramatic change in the robocall landscape in the next 12 to 18 months."
- Requires written consumer consent prior to sending calls/texts.
- Requires an 'opt out' method for consumers to stop future calls.
- Prohibits artificial or pre-recorded voice to residential lines.
- Prohibits artificial or pre-recorded voice or an automatic telephone dialing system to cell numbers.
- A call is exempt from the TCPA if the call:
- Is made on behalf of a tax-exempt nonprofit organization.
- Is not made for a commercial purpose.
- Does not include an unsolicited advertisement, even if it is made for a commercial purpose.
- Applies to telemarketing calls, text messages, and ringless voice messaging.
Prohibition on the knowing transmission of misleading or inaccurate caller ID information, 'with the intent to defraud cause harm, or wrongfully obtain anything of value.' Prohibits 'spoofing' of caller IDs.
Telemarketers must consult the National Do Not Call Registry before calling, and not call those who are listed, unless exempt.
Prohibits deceptive and abusive telemarketing acts or practices.