Overview of the Telephone Consumer Protection Act

Current as of September 9, 2016.

In 1991, Congress enacted the Telephone Consumer Protection Act (“TCPA”) to address certain calling practices that invade consumer privacy and threaten public safety. Originally applicable only to solicitation calls made to residential landline telephones, over the years the reach of the act has been expanded by amendment and by regulatory actions of the Federal Communications Commission (“FCC”). As applied the TCPA also prohibits unsolicited “junk” facsimiles, autodialed and prerecorded calls to wireless phones and automated advertising SMS text messages.

In relevant part, the TCPA and the FCC implementing rules prohibit: (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent; and (2) making any non-emergency call using an automatic telephone dialing system (“autodialer”) or an artificial or prerecorded voice to a wireless telephone number without prior express consent. If the call includes or introduces an advertisement or constitutes telemarketing, consent must be in writing. If an autodialed or prerecorded call to a wireless number is not for such purposes, consent may be oral or written. The FCC has concluded that the TCPA’s protections against unwanted calls to wireless numbers encompass both voice calls and text messages, including short message service (SMS) texts, if the call is made to a telephone number assigned to such service.

The TCPA also prohibits the sending of unsolicited advertisements to telephone facsimile machines. Requirement for prior express consent and the facsimile must contain specific “opt out” instructions.

Private Cause of Act and Statutory Damages

The TCPA is a strict liability statute that awards $500 per each violation and up to $1,500 per willful violation, penalties that were designed to empower individual consumers to seek redress in small claims court. However, the expanded scope of the TCPA has proven to be a windfall for the plaintiff class action lawyers with TCPA class actions increasing by a factor of over 400% from 2010. A total of 3710 class action lawsuits were filed in 2015, a 45% increase over 2014. Class action settlements in the tens of millions of dollars are not uncommon.

Form of express consent

The Commission has stated that “persons who knowingly release their telephone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”

Exemptions

The Commission has created a number of exemptions for the call prohibitions set forth above. The TCPA expressly exempts from these prohibitions calls made for “emergency purposes.” The Commission has also recently recognized the following exemptions in a number of declaratory rulings on petitions filed by interested parties:

  1. Financial institutions calls relevant to the security of the subscriber’s account.
  2. Health care providers regarding appointments, test results, medication status, etc.
  3. Utilities regarding service issues, emergencies, outages, etc. (New as of 8/4/16).
  4. Schools regarding weather closures, fire, health risks, threats, and unexcused absences and with express consent other school activities (consent evidenced by providing phone number to the school) (New as of 8/4/16).

Defense Strategy

Because the TCPA is a strict liability statute, defending TCPA claims can be quite challenging. An early case evaluation is essential to maximize the prospects of a positive outcome.