Telephone Consumer Protection Act of 1991
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The Telephone Consumer Protection Act of 1991 (TCPA) was passed by the
General provisions
Unless the recipient has given prior express consent, the TCPA and Federal Communications Commission (FCC) rules under the TCPA generally:[1]
- Prohibits solicitors from calling residences before 8 a.m. or after 9 pm, local time.
- Requires solicitors maintain a company-specific "do-not-call" (DNC) list of consumers who asked not to be called; the DNC request must be honored for 5 years.
- Requires solicitors honor the National Do Not Call Registry.
- Requires solicitors 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.
- Prohibits solicitations to residences that use an artificial voice or a recording.[2]
- Prohibits any call made using automated telephone equipment or an artificial or prerecorded voice to an emergency line (e.g., "911"), a hospital emergency number, a physician's office, a hospital/health care facility/elderly room, a cellular telephone, or any service for which the recipient is charged for the call.[3]
- Prohibits autodialed calls that engage two or more lines of a multi-line business.
- Prohibits unsolicited advertising faxes.
- In the event of a violation of the TCPA, a subscriber may (1) sue for up to $500 for each violation or recover actual monetary loss, whichever is greater, (2) seek an injunction, or (3) both.[4]
- In the event of a willful violation of the TCPA, a subscriber may sue for up to three time the damages, i.e. $1,500, for each violation.[5]
When Congress passed the TCPA in 1991, it delegated the do-not-call rules to the FCC. Congress suggested that the FCC's do-not-call regulations "may require the establishment and operation of a single national database."[6] The FCC did not adopt a single national database but rather required each company to maintain its own do-not-call database.[7] The FCC's initial do-not-call list regulations were ineffective at proactively stopping unsolicited calls because the consumer had to make a do-not-call request for each telemarketer. In 2003, even though the FCC was the agency entrusted with the TCPA, it was the Federal Trade Commission that established the National Do Not Call Registry and implemented regulations prohibiting commercial telemarketers from making unsolicited sales calls to persons who did not wish to receive them. After being challenged in court by the telemarketing industry,[citation needed] the National Do Not Call Registry received Congressional ratification in the speedy enactment of Do-Not-Call Implementation Act. In 2013, the Philadelphia Federal Appeals Court held that consent to receive calls from collectors, banks, or telemarketers to consumers' cell phones may be revoked by the consumer.[8]
The
The portions of the TCPA related to unsolicited advertising faxes were amended by the Junk Fax Prevention Act of 2005.
In February 2024, the FCC issued a Declaratory Ruling that speech synthesis via generative audio (deepfakes) is considered an "artificial" voice for the purposes of the TCPA.[9][10]
Unusual statutory provision
Though the TCPA is a
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
In April 2005 a class action lawsuit against Jamster! was filed.[16] The lawsuit alleges that Jamster! scammed cellular telephone customers through the use of fraudulent and deceptive advertisements. The plaintiffs argue that the ads in question offered one free ring tone to cell phone customers who responded to the ad via text message, but failed to inform users that they would be subscribed to a monthly service.[17] The lawsuit was combined with four others and settled in November 2009.[18][19]
In August 2014, Capital One Financial Corp., AllianceOne Receivables Management Inc., Leading Edge Recovery Solutions, LLC and Capital Management Services, L.P. entered into an agreement to pay $75.5 million to end a consolidated class action lawsuit pending in the United States District Court for the Northern District of Illinois alleging that the companies used an automated dialer to call customers' cellphones without consent. This is the largest proposed cash settlement under the TCPA to date.[20] It is notable that this legal action involved informational telephone calls, which are not subject to the "prior express written consent" requirements which have been in place for telemarketing calls since October 2013.[21]
The United States Supreme Court resolved a significant circuit split to decide that federal courts have
In 2015, Congress added an exemption to § 227(b)(1)(A)(iii) to allow for robocalls related to federally-owed debt collection. This resulted in the Supreme Court case Barr v. American Assn. of Political Consultants, Inc., 591 U.S. ___ (2020), which ruled this created a content-based restriction on free speech that failed strict scrutiny, and invalidated the exemption but leaving the rest of the statue in place due to severability.[22]
In January 2017, the
In August 2019, the
In July 2020, the US Supreme Court found the "government-debt" exception to the TCPA was unconstitutional. The "government-debt" exception was added as an amendment to the TCPA in 2015. The case, Barr v. American Assn. of Political Consultants, Inc., was brought by political groups that desired to use robocalls for political ads. The court found the TCPA did unconstitutionally favor debt collection speech over political speech and violated the First Amendment.[27][28]
In July 2020, the
In September 2020, the
In October 2020, the
In December 2020, the District Court for the Southern District of Ohio found that a consumer can revoke consent to be contacted by the holder of a debt, and a third party debt collector calling on behalf of the holder can be held liable for TCPA violations even if the revoked consent was not communicated to the third party debt collector. Specifically the court found "[a] third party debt collection agency is liable for autodialed calls under the TCPA when the consumer has revoked his prior express consent to be called, even when that revocation has not been communicated to the debt collector or the debt collector otherwise fails to confirm the consumer has consented to calls."[34][35]
Andrew Perrong has filed at least 45 TCPA lawsuits against a wide variety of businesses, ranging from chimney sweeps and collection agencies to large businesses like Verizon and Citibank. Perrong has demanded tens of thousands of dollars in some cases, and most of his suits are settled quickly. It is unknown how much money Perrong has made from his settlements. His first settlement occurred in 2015 while a senior at La Salle College High School.[36]
In the Supreme Court decision
FCC actions
Since 2015, the FCC has ordered violators of the TCPA to pay $208.4 million. The sum includes forfeiture orders in cases involving robocalling, Do Not Call Registry and telephone solicitation violations. According to records obtained by the Wall Street Journal in 2019, the government had collected $6,790 of that amount.[38]
In March 2021 the FCC issued a fine of $225 million against the Texas-based telemarketers John C. Spiller and Jakob A. Mears, after they made approximately one billion robocalls to people across the country. The pair used business names including Rising Eagle and JSquared Telecom, were responsible for the calls. One of the people involved in the scheme admitted to making "millions" of robocalls per day, even going so far as to go out of his way to call numbers on the Do Not Call list because he believed it would be more profitable to do so.[39]
On June 6, 2023, the FCC imposed a $5,134,500 fine against
See also
References
- ^ 47 U.S.C. § 227; 47 C.F.R. § 64.1200
- ^ 47 U.S.C. § 227(B); FCC Regulations exempt non-solicitation calls.
- ^ 47 U.S.C. § 227(b)(1)(A)
- ^ 47 U.S.C. § 227(b)(3)(a),(b)
- ^ a b 47 U.S.C. § 227(b)(3)
- ^ 47 U.S.C. § 227(c)(3)
- ^ 47 C.F.R. § 64.1200(e)(2)(vi) October 1, 1997 edition.
- ^ "Gager v. Dell Financial Services". www.consumerslaw.com.
- ^ Brodkin, Jon (February 1, 2024). "FCC to declare AI-generated voices in robocalls illegal under existing law". Ars Technica. Retrieved February 1, 2024.
- ^ "FCC Confirms that TCPA Applies to AI Technologies that Generate Human Voices | Federal Communications Commission". www.fcc.gov. February 8, 2024. Retrieved February 8, 2024.
- ^ 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).
- ^ Mims v. Arrow Financial Services, LLC, 421 Fed.Appx. 920, 921 (11th Cir. 2010); Murphy v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000) (federal courts lack federal-question jurisdiction over TCPA claims); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 519 (3rd Cir. 1998) (same); Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Servs., Ltd., 156 F.3d 432, 434 (2nd Cir. 1998) (same); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 514 (5th Cir. 1997) (same); International Science & Technology Inst. v. Inacom Communications, Inc., 106 F.3d 1146, 1158 (4th Cir. 1997) (same); Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463–465 (6th Cir. 2010) (federal courts have federal-question jurisdiction over TCPA actions), Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447 (7th Cir. 2005) (same)
- ^ a b Mims v. Arrow Financial Services 132 S. Ct. 740, 742 (2012)
- ^ "CAND-ECF-Confirm Request". ecf.cand.uscourts.gov.
- ^ "Stephen King Text Message Class Action Lawsuit Settlement". Top Class Actions. March 30, 2010.
- ^ "Jamster slammed for mobile selling practices", InfoWorld, April 5, 2005. Retrieved March 15, 2007.
- ^ Summary of FORD V. VERISIGN, INC., JAMSTER!, et al., Callahan, McCune and Willis. Retrieved March 15, 2007.
- ^ http://jamstermarketinglitigation.com/pdfs/SettlementAgreement.pdf [bare URL PDF]
- ^ http://www.casd.uscourts.gov/ 05-cv-00819-JM
- ISSN 2161-3362. Retrieved August 23, 2014.
- Drinker Biddle & Reath. Retrieved August 23, 2014.
- ^ Wolf, Richard (July 6, 2020). "Supreme Court upholds law banning cellphone robocalls". USA Today. Retrieved July 6, 2020.
- ^ a b Jankoski, Anthony F.; Indych, Marsha J. (September 24, 2020). "Texas District Courts Remain Divided on Standing for Single-Text TCPA Plaintiffs". The National Law Review. Retrieved September 26, 2020.
- ^ Van Patten v. Vertical Fitness (9th Cir. January 30, 2017).
- ^ Delnero, Daniel L. (August 28, 2019). "Eleventh Circuit Holds Receipt Of A Single Text Message Does Not Confer Article Three Standing". TCPA World. Retrieved September 19, 2020.
- ^ Salcedo v. Hanna (11th Cir. August 28, 2019).
- ^ Barr v. American Assn. of Political Consultants, Inc., No. 19-631, 591 U.S. ___ (2020).
- ^ Barr v. American Assn. of Political Consultants, Inc. (Supreme Court July 6, 2020).
- ^ Shields v. Dick (S.D. Tx. July 9, 2020).
- ^ Troutman, Eric J. (September 15, 2020). "Repeat-Player Cunningham Earns Another Huge TCPA Victory- Court Finds Receipt of Missed Debt Collection Call Affords Article III Standing". TCPA World. Retrieved September 19, 2020.
- ^ Cunningham v. Radius Global Solutions Llc (E.D. Tx. September 14, 2020).
- ^ Threadcraft, Joshua (November 6, 2020). "Ohio District Court Holds TCPA Unenforceable From 2015 Through 2020". JD Supra. Retrieved November 13, 2020.
- ^ Lidenbaum v. Realgy, LLC (N.D. Ohio October 29, 2020).
- ^ "Revoked Consent: Plaintiff Awarded $122,500 in Statutory Damages in Partial Summary Judgment Against Debt Collector and CEO in TCPA Case". Lexology. December 23, 2020. Retrieved December 26, 2020.
- ^ Ramsey v. Receivables Performance Mgmt., LLC (S.D. Ohio December 23, 2020).
- ^ Hetrick, Christian (November 2, 2018). "Meet the robocall avenger: Andrew Perrong, 21, sues those pesky callers for cash". The Philadelphia Inquirer. Retrieved September 1, 2020.
- ^ Fritze, John; Jensen, Bart (April 1, 2021). "Supreme Court rules Facebook didn't violate U.S. robocall ban". USA Today. Retrieved April 1, 2021.
- Wall Street Journal. Retrieved March 18, 2021.
- Yahoo. Retrieved March 18, 2021.
- ^ Schnell, Mychael (May 6, 2021). "New York AG James sues Jacob Wohl, Jack Burkman over robocalls". The Hill. Archived from the original on May 6, 2021. Retrieved May 7, 2021.
- ^ Daniels, Cheyanne M. (March 9, 2023). "Judge says Jacob Wohl, Jack Burkman violated Voting Rights Act, KKK Act with 2020 voter suppression". The Hill. Retrieved August 27, 2023.
- ^ Timm, Jane C. (August 24, 2021). "FCC looks to fine conservative activists $5 million for false mail voting robocalls". NBC News. Retrieved August 24, 2021.
- ^ Hendel, John (August 24, 2021). "FCC proposes fining conspiracists $5.1M for voter suppression robocalls". Politico. Retrieved August 24, 2021.
Further reading
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)
External links
- Stop Unwanted Robocalls and Texts consumer guide from the FCC
- 47 CFR Part 64 Subpart L Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising in the Code of Federal Regulations from LII
- Telephone Consumer Protection Act of 1991 as enacted (details) in the US Statutes at Large