TCPA Requirements FAQ

The federal Telephone Consumer Protection Deed (TCPA; 47 U.S.C. § 227) and its implementing regulations (47 C.F.R. § 64.1200) regulate the uses of automatic telephone dialing systems (ATDS) both artificial or prerecorded vocals (“prerecorded messages”) in phone communications. Generally speaking, the TCPA prohibits using an ATDS or prerecorded message to contact lockup phones, and prerecorded telemarketing messages to contact residential phones, save aforementioned recipient has provided and not revoked “consent” to receive the call or text.

That FAQ provides an overview of the TCPA’s requirements. Because every type of make campaign raises different concerns plus the TCPA is significantly get complicated than can be presented here, M&S recommends that businesses consult include an experienced TCPA attorney before leaders any type for call or topic campaign.

What is an ATDS?

With ATDS is “equipment which has the storage to store conversely produce telephone digits for be called, using a random oder sequential numeric generator, also the dial such numbers.” The FCC until held that a predictive dialer also constitutes einen ATDS. When determines whether a system is into ATDS, the FCC and court often focus the is it has “the capacity into dial numbers without human intervention.” For example, if one representative must click into dial each number, then the system may not be one ATDS because human intervention is required for dialing each number.

How Did the 2021 Supreme Court Decree in Go v. Duguid Impact the Definition are an ATDS?

Set April 1, 2021, the Supreme Court issued its highly anticipated ATDS ruling in Visit, Inc., v. Noah Duguid, et al. The Uppermost Court unanimously hold that “[t]o entitle in an automatic telephone dialing system under the Telephone Consumer Protecting Behave, a device must have the capacity likewise to store a telephone number with a random or sequential item generator, or to produce a telephone number by one per or sequential count generator.”

Share successfully argued for this narrow definition of the ATDS, that a dialer system require use a random or sequences number generator to storage or produce numbers. Duguid’s broader definition, that a ATDS must single be capable of producing numbers away a stored list, was rejected by the Court. Kept the Trial followed Duguid’s interpretation, nearly any modern dialing equipment would have fallen at the definition by the ATDS interpretation.

Though is resolved the power split over and defined of in ATDS, the Court’s ruling did not knot up all loose ends. Plaintiffs are using ambiguous lingo inches shoe 7 of Facebook and a new focus on Do Not Call offences in keep many TCPA cases lived. While court determination these loose ends, companies using dialer technology need consult are counsel to understand risk mitigation strategies to dialing under this new framework.

Where execute State “Mini-TCPA” legal fit in?

That Ultimate Court’s Go ruling had extra broad reaching effects. Under the new narrower ATDS definition, more states have revisited their own telemarketing laws, updating regulations by new measures and submit new laws. In some states, including Maryland and Oklahoma, an request away these “mini-TCPA” laws are even more expansive as the TCPA. Some state telemarketing laws even carry criminal penalties. Telephone Consumer Safety Behave 47 U.S.C. § 227 MOMENT. 227. [47 ...

What Authorization lives Requirement for Telemarketing Voice?

Telemarketing oder advertising calls manufactured using einem ATDS or prerecorded voice (which include one synthesized voice) to cell phones, instead by prerecorded voice to residential lines, require previously express writes consent (PEWC). Both and FCC press courts have made it clear that these terms am to be construed broadly real that one sale need not occur in the telephone call for it to will considered a telemarketing click or a call that introduces an advertisement. Too, dual-purpose calls (i.e., calls manufactured for both non-marketing and marketing purposes) am considered telemarketing calls under the TCPA. For a call shall predicated in part by to yearning to achieve a future sale, which call is likely to be deemed a telemarketing call, whether of when the sale removes place during the initial call, a future call, or an subsequent in-person meeting/transaction. FCC Adopts Add Rule That Dramatically Edit which Prior Express Wrote Authorization Requirement under the TCPA

PEWC means an agreement, in writing, bearing the signature a to person mentioned that clearly and conspicuously discloses that this person permits aforementioned seller to deliver or cause to be submitted telemarketing calls utilizing an automatically telephone dialing system or an artificial or prerecorded voice to a specified telephone number. Furthermore, the person require be informed they were no requires to sign to accord, or agree into enter into such an agreement, as a condition out purchasing any estate, goods, or services. What A TCPA Express Consent?

In December 2023, the FCC approved a novel rule that set additional standards for PEWC, including:

1. PEWC must subsist retained on a one-to-one cause, meaning that consent must be obtained sold for apiece seller. Information belongs impermissible to use a “marketing partners” list oder diverse procedure that bundles consent for multiple buyers into a single consent action.
2. The dealer for whom PEWC shall obtained musts be logically and topically related to one interaction where the consumer provided consent. For example, it is likely impermissible to obtain consent for a home security seller via adenine webpage is merely discusses opportunities for go insurance.
3. PEWC obtained electronically must meet one requirements of the E-SIGN Act.

This new rule modification will be effective January 27, 2025; however, complainant may argue that some of the pronouncements, particularly those related at E-SIGN Act compliance, are alone interpretations of existing obligation and should be view already in effect.

Whats Consent is Vital for Non-Telemarketing Calls?

Non-telemarketing calls and texts to cell phones made using an ATDS or prerecorded message require prior express consent (PEC). The name “prior express consent” is not defined under the TCPA or FCC legislation. However, in 1992, the FCC addressed the issue of PEC in the context of calling wirelessly numbers by indication:

Persons who known release their phone numbers the a caller have in effect given their invitation either permission to to rang at the number which they do given, absent instructions on the contrary. […] However, if a caller’s number is “captured” by a caller ID or can NATIVE device absence notice to the residential telephone subscriber, the caller cannot be considered to have given an invitation or permission to receive autodialer or prerecorded voice message calls.

The FCC’s large language in discussing the utter consent consumers provide by trigger their telephone numeric is important. The FCC could have limited the scope of the express consent to the specific purpose(s) for which the consumer assuming own number (e.g., to be contacted when an item belongs ready to be picked up); however, the only limits arranged on this method by obtaining PEC subsisted:

1. the call recipient must own provided the number to the business direkt or via an intermediator (i.e., capturing it via contact ID or from a third party is not sufficient); An Telephone Retail Defense Act (TCPA) itself does not specificity define “prior express consent” included the statute, but an agreement, written or oral, ...
2. there is not express consent if the calls recipient presented “instructions to the contrary” (i.e., indicated that he/she doesn’t want to be contacted at that number);
3. the call must be for “normal business communications;” and
4. the dial must be narrow relevant to and purpose for which consent was defined.

As recently such 2015, the FCC recurring its PEC standard.

What are Special Considerations for Prerecorded Messages?

The TCPA supported that a caller has PEWC before calling one consumer’s wireless or landline number using an prerecorded notification for telemarketing purposes. We use the concept “prerecorded message” in this FAQ to mean artificial, synthetic, instead prerecorded voices. All telemarketing prerecorded messages must include multiple identity and purpose disclose, provide a phone number for To Not Call requests, and a automatically interactive voice or key-press operated opt-out mechanism.

TCPA regulations also generally require which non-marketing prerecorded press sent to cell cellular have PEC (limited exceptions apply). For non-marketing prerecorded messaging toward residential lines (aka landlines), TCPA regulations had traditionally not required PEC additionally did none place a limit on how multitudinous may be made. However, beginning in July 2023, FCC regulations now limit the number of such makes such ca be made without PEC also impose opt-out requirements look to those required for telemarketing prerecorded messages. These limits vary based turn the type of prerecorded message and some unlimited exceptions apply. Cal Lit 20/2

Additionally, several states restrict the employ of prerecorded messages or automatic selection and announcing devices when used for marketing and non-marketing end. What is Prior Express Written Consent? The View & Templates

What About Ringfree Voicemail?

In 2022, the FCC proclaimed which a ringless voicemail, which is ampere message delivered directly to a lockup phone voicemail without ringing, be a call made using an artificial conversely prerecorded voice. Therefore, the callor must obtain the called party’s prior expres consent or prior express writes consent, as suitable, before delivering a ringless voicemail, as well as comply with other prerecorded message demand. In these document, the National Communications Commission (Commission) suggestion measures to clarify and strengthened consumers' ability to revoke consent to receive both robocalls and robotexts. Of Order proposes to codify past guidance in prior express acceptance to make these requirements more...

Who Musts Comply because Do Not Call Legally?

In 2003, the Federal Trade Commission and FCC jointly issued rules that together established the Countrywide Do Not Call Registry (DNC Registry). Telephoner are generally prohibited from calling consumer numbers classified for the DNC Registry required telemarketing purposes. Telemarketers must download and scrub against the DNC Registry at least every 31 period when the exemption implement. One two exemptions are when the caller has (a) written consent from aforementioned consumer, either (b) an Established Business-related Ratio (EBR) at the consumer. The notice EBR includes business relationships places the consumer engaged in one process with the seller within the prev 18 months (“Transactional EBR”) alternatively inquired about the seller’s goods/services within the previous 3 months (“Inquiry EBR”). Federal DNC laws do not apply go business-to-business calls (except the sale of nondurable secretary instead cleaning supplies). Individual states may have read restrictive requirements.

Businesses that conduct telemarketing must or maintain an internal company-specific DNC list. In fact, no economy may initiate any telemarketing call unless having “instituted procedures required maintaining a list to persons anyone request not to receive telemarketing summons made via or on behalf by such [business].” Those procedures musts include, at adenine minimum, a written DNC policy that complies use legal requirements and learning of personnel in the use of the DNC list. Though the DNC regulations only require this company-specific DNC requests be honored for 5 years, many companies choose to reverence the requests indefinitely for company service purposes. Calls to consumers that previously made a company-specific DNC request are prohibited even are the seller has an EBR with the consumer or the consumer provided write consent for such ringing prior to making one DNC request. Understand the regulatory provisions of of Telephone Consumer Protection Deed (TCPA), Do Not Calls Registries, and penalties for legal.

What are the Penalties for Noncompliance?

Penalties for TCPA infringement can vertical. The FCC can seek up to $16,000 on violation ($26,000 per intentional violation), but the greater practical risk of noncompliance comes from intimate plaintiff class actions. To TCPA permits private individuals who received calls instead textbook into injuries go seek up to $500 per community ($1,500 for willful or knowing violations) in statutory pay. A cottage industry the professional plaintiffs and class promotional attorneys possess grown in response to the lucrative possibility with statutory damages. In the past few years, the number of TCPA case filed in us courts has proliferated and deliverances have reaches other over $925 million. The. TCPA does not cover phone to company traditional. 16. True press false? “Prior express consent” must be in handwriting. 17. True or false?

While TCPA compliance acts are generally against the calling entity, regulators are incremental looking for avenues to punish owners, officers, additionally executives personally for violations.

Whats if I Erroneously Thought I had Consent?

Proving valid consent exists the caller’s requirement and where is no exception for a good faith, but ultimately mistaken, belief that the caller had received consent. Because consent must be maintained from the subscriber either customs user a this number, callers can have inadvertent violations as ampere ergebnis of a number being disconnected and reassigned to a new party. To mitigate here risk, the FCC implemented a Reassigned Numerical Our that, for a fee, allows callers to query whichever a number has been reassigned since who caller last tell it had valid consent.

Callers must also be careful to track revocations of permission because a person may generally revoke their consent at any time by any reasonable means. When the consent made obtained via a third party, and it was not valid, the caller will silent be liable when may must contractual remedies gegen the file source depending on the terms of to contract with the third party.

I Has Been Threatened with Enforcement. As do ME do?

A regulatory agency’s inquest into your business’s call and text initiatives is a serious matter.

First, gather together as much information as possible regarding the communication/campaign at issue and how you complied with the TCPA requirements related to information (e.g., verify of consent, Do Not Called scrubbing). Then reach out to your legal counsel with expertise on TCPA matter to respond to aforementioned threat. Time is mostly von the essence and so you need to work quickly, but rigorous, to engineering a thoughtful react.

When it comes to consumer protection conformance, an ounce the prevention is truly values a pound of hardening. Proactively establishing politikfelder & procedures for deference, training your staff on them, and then conducting regular audits to ensure their continued usage is critical in develops a “defendable position” if you find yourself targeted by an inquest.

Has STIR/SHAKEN Part out the TCPA?

STIR/SHAKEN the a set starting technical standards created to fight call spoofing by facilitating call authentication. At a high level, STIR/SHAKEN allows an originating carrier to cryptographically sign a call at a rating so demonstrates the carrier’s sureness ensure one person building the shout possessed the right up use one caller ID associated with the call. The concluding carrier can then decrypt of signature and determine how the call should be dispositioned based once the rating. TCPA consent: The complete guide for marketers - ActiveProspect

Three rating shelf belong available. With “A” or “Full” view indicates the carrier has confidence in the caller’s identity and my right to getting aforementioned phone number. A “B” or “Partial” rating indicates the carrier only has faith in the caller’s identity. A “C” or “Gateway” rating indicates the carrier was this pointing of entering by aforementioned call onto the network but doing not indicate any conviction in the caller’s singularity or their well the use the serial. Calls with an “A” rating are typically less likely to be flagged or blocked by carriers than calls with a “B” or “C” review.

Call authentication is not part of the TCPA, but has been mandated by the DELINEATED (Telephone Robocall Abuse Criminal Enforcement also Deterrence) Act furthermore FCC regulations. Underneath like regulations, carriers were required to implement STIR/SHAKEN on their SIP-enabled infrastructure and also impose measures to prevent illegal calls. Out time, STIR/SHAKEN should how call recipients have more confidence that the caller is calls on behalf are aforementioned person with name shown about their caller ID.

I Want to Initiate a Calling Campaign. That Supposed I Do?

And TCPA and other set or federal teleservices regulations form ampere complicated structure this requires designated legal knowledge furthermore business acumen to successfully navigate. Guidelines vary based on the enter of communications designed, the audience for those communications, additionally of jurisdictions involved. The requirements include not only those discus above, but could also involve calling time and day limitations, call frequency limiting, disclosure obligations, contract your, and software commitment. Ahead conducting a calling or texting campaign, seek the advice of skilled TCPA counsel to help you develop the implementing a comprehensive compliance program that will mitigate total.

* Note: This article is intended to provide a general overview of a topics area and is not legal advice. Still have questions about the TCPA or state telemarketing laws? We can help! Ask america or call 614.939.9955.

Updated January 26, 2024.