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Spangenberg Shibley & Liber LLP | Jun 18, 2015

The Telephone Consumer Protection Act ("TCPA") at a Glance

Categories: Business Litigation

What is it?

The TCPA is a federal law that limits the ways telemarketers can contact consumers by phone, and in some instances prohibits telemarketers from calling consumers at all.

Is the TCPA different from the 'Do Not Call List'?

There are provisions of the TCPA that require telemarketers not to contact people listed on the National Do Not Call Registry. Furthermore, the TCPA requires that telemarketers maintain their own company-specific "do-not-call" list of consumers who have asked not to be called. The company-specific do not call request must be honored for 5 years.

What if I am not on a do not call list or registry?

Then telemarketers can call you at home, but not before 8 a.m. or after 9 p.m. And telemarketers are required to provide you with their name, the name of the person or entity on whose behalf the call is being made, and a phone number or address at which that person or entity can be contacted. But the TCPA prohibits most commercial calls to your home that use an artificial voice or recording for which you have not given express consent.

What about my cell phone?

The TCPA prohibits all calls made using "automated telephone equipment" or an artificial or prerecorded voice to any cell phone, unless you have given the caller "prior express consent" to call you.

Does the TCPA govern fax solicitations?

Yes. The TCPA prohibits unsolicited advertising faxes, unless the sender has an established business relationship with you.

What about text messages?

At least one circuit court of appeals has held that the TCPA applies to unsolicited cell phone text messages advertising goods or services.

What are the penalties for violating the TCPA?

A consumer can sue under the TCPA for $500 up to $1,500 for each violation, or to recover the monetary loss sustained as a result of the violation, if any, whichever is higher. The consumer can also sue for an injunction - an order forcing the solicitor to cease violating the TCPA.

Have lawsuits for TCPA violations been successful?

Most lawsuits alleging violations of the TCPA are filed as class actions. Many class action lawsuits have resulted in settlements. Recently, for example, Capital One and other companies agreed to pay $75.5 million to end a class action alleging these companies used an automated dialer to call customers' cell phones.

The TCPA is an important law that protects us from unwanted telephone solicitations. The TCPA does not prohibit any or all kinds of calls by telemarketers or solicitations. If you have received a pre-recorded solicitation without your consent, however, it may very well be a violation.