What Is the Telephone Consumer Protection Act?
If your afternoons are not being disrupted by banks offering loans and telecom companies insisting you invest in a new plan, it is because of the protection offered to you by the Telephone Consumer Protection Act. The TCPA restricts all kinds of bogus telemarketing communications, via calls, SMSes or even fax.
Under the TCPA, all telephone solicitation and the use of automated phone equipment is restricted, preventing the harassment of consumers who have not consented, through pre-recorded messages, automatic dialing, SMSes and fax. No company is allowed to violate the consent of consumers who subscribe to the National Do Not Call Registry. Companies that are found in violation of the Act are liable to monetary punishment.
Origins of the Act
The TCPA became a law in the year 1991 after the Communications Act of 1934 was amended. It was put in place after an increase in unsolicited telemarketing calls, messages and faxes.
Once the TCPA was passed, the Federal Communications Commission introduced regulations that shaped the Do Not Call Registry. To begin with, every company and organization was expected to maintain their own directory of consumers who had ticked the ‘Do Not Call’ option. These individual databases eventually gave way to the National Do Not Call Registry in 2003. Maintained by the Federal Trade Commission, the Do Not Call Registry is open to both cell phone and landline users. The portal accepts registrations at donotcall.gov.
What Does the Act Protect?
The Act has been put in place to protect the consent of all consumers on the Do Not Call Registry. FCC regulations are entitled to impose financial penalties or fines on commercial organizations and telemarketers for calling phone numbers on the Do Not Call directory.
For the numbers that are not registered on the directory, the FCC regulations allow for only a certain number of abandoned calls. The Commission also demands telemarketers to transmit caller identity details.
How to Identify Auto Dialer Calls
If you have been receiving over four calls or voicemails on a single day from the same number, the telemarketer is using an auto dialing service. Similarly, if you receive a call and only hear a recorded message, it’s a robocall, meaning one that has not been made manually. A call where no one speaks on the other end is also a sign of a robocall.
Declaratory Ruling and Order of 2015
Since its inception in 1991, the Telephone Consumer Protection Act has seen several changes and modifications. In July 2015, the TCPA was formally amended and made more defined and detailed. The Declaratory Ruling and Order of 2015 was born out of this amendment after acknowledging and addressing several consumer petitions for clarity on the TCPA’s terms and how it is interpreted by the FCC.
The following are some of the important highlights of the ruling:
- Telemarketers are prohibited from using automated dialing to reach a wireless phone and leave a pre-recorded message without consent.
- Consumers are entitled to retract consent or permission to be contacted by telemarketers via calls or SMSes at any time and in any ‘reasonable’ way.
- Telecom service providers can add robocall blocking services in consumer plans.
- If a previously consenting consumer’s number has been reassigned, callers are prohibited from calling the reassigned number unless consent is explicit.
- Consent is still explicit if a person transfers the number from a landline to a wireless service.
- Callers are provided with an emergency option in case of urgent messages, such as intimating the consumer about potential fraud or reminder to fill an insurance premium or medication requirement. But while doing so, the caller must also provide the consumer with a way to opt out.
What Is Covered in the Do Not Call Registry?
The FCC regulations have expanded their wings to include banks, insurance companies, credit unions, and savings associations. The Commission regulations also have a counterpart in FTC’s telemarketing regulations, which cover all other business organizations and entities. This includes third parties acting at the behest of a financial institution.
The regulations also cater to unsolicited facsimile advertising or telemarketing approaches via fax. These regulations were later consolidated into the Junk Fax Prevention Act of 2005.
What Are Some Important Keywords to Remember?
The Telephone Consumer Protection Act is a long and complex document that has been amended a number of times over the years. The TCPA, therefore, deals with a few technical terms. The following is a helpful glossary to weed through the jargon and understand some important keywords:
- Unsolicited Advertisement: Any attempt to advertise the commercial availability of a product, property or service to any person without the explicit permission or invitation of the said person.
- Abandoned Call: If a telephonic call is not transferred to a live agent after two seconds of the receiver’s entire greeting, it’s an abandoned call.
- Residential Subscriber: Any person in a signed or verbal contract with a common carrier to provide telephone exchange service at a personal residence.
- Established Business Relationship: An established business relationship refers to an existing equation between an individual or entity and a residential subscriber, based on the subscriber’s transaction with the entity within the 18 months immediately preceding the date of the telephone call. Alternately, on the basis of the subscriber’s inquiry regarding products or services offered by the entity in the three months immediately preceding the date of the call. For the call to be legal, neither party should have terminated the relationship.
- Automatic Telephone Dialing System and Auto-dialer: A technology or equipment that has the ability to either store or generate telephone numbers using an algorithm, along with the ability to dial the numbers.
- Seller: The individual or entity on whose behalf a call or message is transmitted to any person in order to encourage a purchase, rental or investment in a product, property or services.
- Telemarketer: The individual or entity that initiates a telephone call or message on behalf of a seller to encourage the purchase, rental or investment in a product, property or services.
Instances of Violation
Telemarketers have challenged the TCPA since it was introduced in 1991.
There have been several major cases that have gone as high up as the US Supreme Court to be settled. The following are two case studies of some of the high profile cases:
Capital One Financial Corp.
In 2012, three separate cases were registered against collection agencies that were collecting debt on behalf of Capital One, an American bank holding company. The agencies allegedly used auto-dialers and/or pre-recorded messages to contact consumers without their explicit consent.
Without accepting any guilt, Capital One and the three agencies agreed to pay $75.5 million in a settlement, one of the largest settlement amounts in US history. Capital One agreed to pay $73 million and the three collection agencies combined contributed $2.5 million. The settlement was approved by the court in 2015.
The whopping amount was attributed to the large size of the class. According to the class counsel’s statements in court, between $20 and $40 would be provided to each member of the class, estimated to include approximately $21 million people. The class is defined to include all individuals in the United States who received a call from Capital One’s agents through an automatic telephone dialing system in an attempt to collect debt between January 2008 and June 2014.
By the time the deal was approved by the court, the attorney’s fee in the case was famously cut from 30 percent of the settlement amount to 20 percent, bringing the fee amount to $15 million.
Dish Network LLC
In 2017, Dish Network LLC (Dish) was found liable to pay $341 in two separate federal cases related to violation of the TCPA.
In one case, ‘Krakauer v Dish Network LLC’, complainants claimed they received calls from Satellite Systems Network (SSN) to promote Dish’s services, despite being on the Do Not Call Registry. Dish argued in court that it should not be held responsible for SSN’s actions. The court, however, ultimately found Dish liable for approximately 51,000 calls in violation of the TCPA. The court judgement stated that Dish was aware of SSN’s history of TCPA violations, yet continued to allow SSN to market its services. The satellite service provider had enough evidence that SSN was making illegal calls on its behalf, yet “repeatedly looked the other way”. The jury held Dish liable for $400 per call, approximately $20.5 million.
In the other case, ‘United States of America et al v Dish Network LLC’, the FTC, along with the states of California, Ohio, Illinois and North Carolina alleged violations of TCPA, TSR (Telemarketing Sales Rule) and state law. Dish was accused of calling individuals listed in the Do Not Call Registry. Dish was held liable to pay up $280 million in statutory damages and penalties. Of this $168 million was paid to the federal government and the remaining was given to the states. Dish was also made to consult a telemarketing-compliance expert who would help design a plan to ensure compliance with the rules. The plan was expected to be shared with the court.
How Can Companies Ensure TCPA Compliance?
All the cases mentioned above are evidence that companies engaging in telemarketing, especially through third-party agents need to have a management program in place to ensure TCPA compliance. If vendors or third-party agencies like SSN are managed, instances of blatant TCPA violations are likely to reduce. The following are some steps:
- Carry out thorough background checks before engaging third-party vendors for telemarketing.
- Engage vendors in a binding contract to honor the Do Not Call Registry and require them to follow regulations.
- Insist vendors maintain detailed records of interactions with customers and evidence of compliance with TCPA regulations. The company should also have the right to audit these records.
- Address and investigate consumer complaints in an organized way. For example, Dish received complaints from individuals regarding unsolicited calls from SSN but chose to dismiss them saying it takes no responsibility for SSN’s actions.
There are several attorneys and law firms in the field specializing in cases relating to TCPA violations. If you are on the Do Not Call Registry, yet you continue to receive unsolicited messages or calls from telemarketers, you are within your rights to file a lawsuit against the company responsible. If you have been on the receiving end of unsolicited calls, faxes or pre-recorded or auto-dialed telemarketing communications, you may be able to bring a suit against the caller if the caller is found to be in violation of the TCPA. You can find legal aid in your local area through Find An Attorney, a portal which generates contacts of attorneys based on the field you’re looking for help in and the area. Most law firms will also assist with cases of TCPA violations.
In order to build your case and make it stronger, you may want to make note of some information. The following information may also be presented in court as evidence:
- All records of phone calls, voicemails and messages from telemarketers. Do not delete the voicemails and messages and ask your service provider for an itemized list of calls received.
- A legitimate written record of the names of the callers and the dates of the calls, along with the caller’s identity and premise of the conversation you had with them.
- Detailed copies of letters, emails or any other communication you may have sent callers to withdraw your consent for them to make automated calls to your number.
Finally, the above covers some basic themes to help you familiarize yourself with the Act that protects your privacy rights and upholds your consent in the event of unsolicited advances by telemarketing communications. It happens often that common citizens are not even aware of how to register themselves in the Do Not Call directory or that there is a way to stop these unsolicited communications. The above is only a short summary of what the TCPA of 1991 and its following amendments protect and how to stand up for your right to be protected from unwarranted phone calls.
With this information in hand, explore further and educate yourself on the rights the US Constitutions has bestowed upon you. Visit the fcc.gov to know more.
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