The Telephone Consumer Protection Act (TCPA) was passed by Congress in 1991 and signed into law by then President George H. W. Bush. The TCPA charged the Communications Act of 1934. The TCPA’s purpose was to restrict telephone solicitations and the use of automated dialing equipment. In addition to restricting the use of automated dialing equipment and pre-recorded messages, the TCPA deals with telemarketing calls using a “live” caller and fax transmissions. The TCPA was enacted largely as a result of what Congress saw as the inability of states to protect their citizens from unsolicited telemarketing and is codified at 47 U.S.C. § 227.
The Federal Communications Commission (FCC) is empowered to issue rules and regulations implementing the TCPA. In 2003, the FCC amended rules under the TCPA to implement the national “Do-Not-Call” (DNC) list. This allowed telephone subscribers to expressly opt-out of receiving telemarketing calls. Therefore, no person or entity may initiate any telephone solicitation to a residential telephone number on the national DNC registry. Additionally, no person or entity may initiate any telephone solicitation to any residential telephone subscriber before 8 a.m. or after 9 p.m. (called party’s local time).
Beginning in October of 2013, prior express written consent was required by the FCC for all auto-dialed calls, pre-recorded calls, or text messages sent to a wireless number. In addition, prior express written consent was also required for pre-recorded calls made to residential telephone numbers for advertising or telemarketing purposes.
An autodialed call is a phone call involving a live person or pre-recorded message that is placed using an automatic telephone dialing system that can produce, store, and call telephone numbers using a random or sequential number generator. Telemarketing is 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, which is transmitted to any person.
Purely informational calls and calls for non-commercial purposes are exempt from the FCC’s regulations. For instance, the FCC has determined that other types of calls, such as research and survey calls and bank account fraud alerts, are exempt from the written consent requirement reserved for telemarketing calls, as long as they do not contain telemarketing messages.
Other types of calls are also exempt from the FCC’s prior written consent requirement. The following types of calls are exempt: calls that are manually dialed and do not contain a pre-recorded message; calls made for emergency purposes; calls not made for a commercial purpose; calls made for a commercial purpose that do not include or introduce an advertisement or constitute telemarketing; calls made by or on behalf of a tax-exempt nonprofit organization; and calls that deliver a “health care” message made by or on behalf of a “covered entity” or its “business associate,” as those terms are defined in the HIPAA Privacy Rule, are all exempt from the written consent requirement.
When a person or entity contacts you, without your consent, through the use of an automated dialing system, the use of a pre-recorded or artificial voice, or through receipt of an unsolicited text message, it is possible that your rights under the TCPA may be at risk. If you have not given your permission, your TCPA rights may have been violated if these persons or entities: call your cell phone using an auto-dialer; call your cell phone and use a pre-recorded voice; auto-dial your residential phone to deliver certain types of telemarketing calls; call your residential line using a pre-recorded voice with certain types of telemarketing calls; or send a junk fax to your fax machine without properly identifying themselves and their number.
States also have their own statutes to address telephone solicitations violations. In Alabama, the caller must provide their name, and the name of the company they are calling on behalf of, within the first 30 seconds of the call. If the caller fails to do so, that qualifies as a violation, under Alabama law. Alabama regulations addressing telephone solicitation violations can be found at Ala. Code § 8-19A-12 and § 8-19C-5.
In Alabama, any person who has received one or more telephone solicitations within a 12-month period from the same person or entity may seek an injunction to have all telephone solicitations from that person or entity stopped. As an additional remedy, anyone who has received one or more of these telephone solicitations may seek recovery for actual monetary loss or up to $2,000 in damages for each violation, whichever is greater. Both claims can be brought together, within two years of the violation. See Ala. Code§ 8-19C-7 & § 8-19C.
The TCPA provides for statutory damages, generally from $500 to $1,500 for each violation, which are paid to the consumer. In determining final amount of statutory or actual damages, courts do analyze whether the Defendant knowingly or willfully violated the Telephone Consumer Protection Act. Potential damages under the TCPA may escalate very quickly, considering that telemarketing campaigns often involve thousands, and sometimes millions, of calls and text messages.
If you have information about a potential TCPA violation and would like to speak with an attorney, contact Andrew Brashier, a lawyer in our firm’s Consumer Fraud and Commercial Litigation Section, by email at Andrew.Brashier@BeasleyAllen.com, or by phone at 800-898-2034 or 334-269-2343.
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