We've all experienced it! We are sitting in our family room after dinner getting ready to watch our favorite episode of The Big Bang Theory or Game of Thrones, when the phone rings, and, it's not someone we recognize. Rather, someone is trying to sell something to us or even collect something from us. Such is the pace of modern life.
There are a host of federal laws and regulations designed to address these types of communications with us as consumers. Over the years, these laws have addressed landlines, mobile phones, email and text messaging. This and my next Back to Basics blog addresses the rules for these methods of communication. It will take at least two editions to just summarize this complex area of law.
So, let's begin with the basics—the Telephone Consumer Protection Act (TCPA).
The TCPA governs telemarketing and solicitation calls to landlines and mobile phones. This 1991 law initiated the effort at protecting consumers from often unwanted intrusions. The primary purpose was to address the proliferation of telephone solicitations. The TCPA, now applying to landlines and mobile phones, created the original National Do-Not-Call Registry. However, there are a number of exceptions to the Registry including emergency, political, and healthcare calls.
Basically, a company must have prior express consent to make a call or send a text message to a mobile phone using an automatic telephone dialing system or an artificial or prerecorded voice. If the call is a non-telemarketing call, the consent may be oral or written. If an autodialed or prerecorded call is a telemarketing call, the consent must be by prior express written consent.
If the call is to a residential landline, the caller must have prior express written consent to make a telemarketing call using an artificial or prerecorded voice.
The TCPA has numerous restrictions and requirements, including:
- The telemarketer must provide the name of the individual caller, the name of the company and a telephone number or address for the company;
- An unanswered telemarketing call must not be disconnected prior to 15 seconds or four rings;
When a sales representative is not available, there must be a prerecorded identification and opt-out message with an interactive key-press function;
- When a prerecorded or artificial voice is used for telemarketing, there must be an interactive opt-out mechanism;
- A telephone solicitation may not be made before 8 AM or after 9 PM, or to a person who has registered with the National Do-Not-Call Registry.
“Telemarketing” is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services…” No consent is required for non-telemarketing calls. Also importantly, courts and the FCC have held that debt-collection calls that do not include advertisements are exempt from the restrictions on telemarketing and solicitation calls under the TCPA.
If this sounds complicated, that's because it is.