A business guide to the Federal Communications Commission
(FCC) regulations implementing the Telephone Consumer Protection
Act of 1991
In 1991, Congress passed the Telephone Consumer Protection
Act (TCPA), the first federal law regulating the actions
of legitimate telemarketers. Its purpose is to strike a
balance between protecting the rights of consumers and
allowing businesses to use telemarketing effectively.
Regulated by the Federal Communications Commission (FCC),
this law requires telemarketers to formalize their existing
policies and, where necessary, create new ones to bring
their operations into compliance with the following main
restrictions:
Proper Identification
During the introductory portion of all "live operator" outbound
telemarketing calls, the called party must be provided
with the name of the individual making the call, the name
of the business, individual or other entity on whose behalf
the call is being made, and a telephone number or address
at which the person or entity may be contacted.
Calling Hour Restrictions
The TCPA expressly forbids calls to private residences
before 8:00 a.m. or after 9:00 p.m. (local time at the
called party's location). Any exceptions must be with the
expressed consent of the called party.
"Do not call" Policies
The TCPA requires each company, with the exception of those
making nonprofit solicitations, to maintain a list of those
people who do not wish to be contacted by phone and to
develop a written policy implementing this "Do not
call" list-keeping requirement. These written procedures
must be made available to anyone on demand.
"Do not call" lists must be maintained for a period
of 10 years and cannot be sold, or in any way shared (except
with a subsidiary or affiliate company), without the consumer's
expressed consent.
Any employee engaged in any aspect of the telemarketing
process must be fully trained in the above-mentioned procedures.
Service agencies must make sure they are in compliance
and their clients fully understand and agree to follow
the procedures for maintaining "Do not call" data,
as the clients will ultimately be held liable.
A word of warning: If you feel this "Do not call" provision
does not apply to you because you have an existing relationship
with the individuals you call, think again. Although the
federal statute creates an exemption for "established
business relationships," the FCC requires that the "Do
not call" requests of established customers be honored.
In effect, once an established customer requests not to
be called, the "established business relationship" exemption
ceases to apply.
Auto Dialer and ADRMP Regulations
Auto dialers have the
capacity to store or produce telephone numbers to be called
using a random or sequential number generator. Automatic
Dialing Recorded Message Players (ADRMPs) are auto dialers
that play prerecorded or artificial messages to the consumer
with no introduction by a live operator.
The TCPA prohibits the use of ADRMPs to:
• Emergency telephone lines, including any 911 line;
emergency lines of hospitals, physicians, service offices
or health care facilities; poison control centers;
or fire protection and law enforcement agencies.
• Guest/patient rooms of a hospital, convalescent
or other health care facilities, retirement homes or similar
establishments.
• Any telephone number assigned to a paging service,
cellular telephone service, specialized mobile or other
radio common carrier service, or any other service for
which the called party is charged for a call.
• Any residential telephone line for commercial purposes
without the prior expressed consent of the called party,
unless the call is initiated for emergency purposes
or is exempted under other provisions of the TCPA. ADRMPs
can be used for residential calls, provided the call does
not include unsolicited advertising, is to a person with
whom the caller has an established business relationship,
or the call is by, or on behalf of, a tax-exempt nonprofit
organization.
The beginning of all ADRMP
calls must clearly state the identity of the business, individual
or other entity initiating the call, telephone number (other
than the ADRMP which placed the call) or address.
While the law does not regulate the use of ADRMPs to
call businesses, it does prohibit using auto dialers
in a way that simultaneously engages two or more lines
of a multi-line business. It also requires that the beginning
of the prerecorded message contain certain identifying
information about the caller, such as the name of the
business, individual or other entity initiating the call
and their address or telephone number.
Facsimile Regulations
The TCPA specifically bans the transmission of unsolicited
advertisements to telephone facsimile machines. If, however,
the caller has an established business relationship with
the intended recipient, then expressed prior consent
is assumed until a "do not fax" request is received.
By law, each fax transmission must have a header or footer
that clearly states the caller's name, telephone number
and the date and time of transmission. All fax machines
manufactured after 12-20-92 must have the capacity to
print this information on either the first page or, preferably,
every page of the transmission. Again, the company or
person on whose behalf the fax has been sent is ultimately
responsible for compliance.
Enforcement and Penalties
Calling a consumer on two or more occasions within any
12-month period after they have requested not to be called
is a violation of the TCPA and the FCC rule. Using an
artificial or prerecorded voice to call a residence,
an unsolicited advertisement on a telephone facsimile
machine or auto-dialed calls that simultaneously engage
two or more phone lines at a multi-line business are
also violations.
Report violations to the solicitor or business directly
using the telephone number or address provided during
the call. If that doesn't stop the calls, and the state
in which the call was made permits, a suit can be filed
in state court to stop such calls and/or sue for monetary
loss. The penalty is $500 for each violation or actual
monetary loss, whichever is greater. States can also
initiate a civil action in federal district court against
any person or entity that engages in a pattern or practice
of violations of the TCPA or the FCC rules.
Commonly Asked Questions About the TCPA:
In general, what does the FCC regulate pursuant to this
law?
The FCC regulates telephone solicitation by restricting
the use of auto-dialing equipment and by prohibiting
other commercial calls, such as those to facsimile machines,
cellular phones and emergency service providers. Further,
the FCC was empowered to protect residential subscribers
from receiving uninvited telephone solicitations. This
was done by establishing a "Do not call" list-keeping
requirement for residential telemarketing and by prohibiting
calls to residences before 8:00 a.m. or after 9:00 p.m.
Will federal law compliance suffice?
No. During the several years that the TCPA was in the
making, numerous states proceeded to pass extensive telemarketing
legislation of their own. The state approaches vary widely,
from cooling-off periods during which the consumer has
a right to cancel telephone purchases to in-state "Do
not call" mechanisms and time-of-day restrictions.
Despite the obvious interstate character of telemarketing,
all state laws that apply to telemarketing activities
must be complied with in addition to the federal law.
What is a basic "Do not call" list-keeping
protocol?
The written policy should include, but is not limited
to:
1) how "Do not call" requests will be captured,
2) how, and how quickly, these names and telephone numbers
will get into the database,
3) how, where appropriate,
the "Do not call" request will be forwarded,
in a timely manner, to the person, business or entity
on whose behalf the call was made and its affiliated
companies; and
4) how the accuracy of the database will
be maintained.
The American Teleservices Association,
Inc. (ATA) is a not-for-profit trade association founded
in 1983 to represent and serve the telemarketing industry.
It is committed to meeting the needs of its members,
as well as protecting the rights of consumers and businesses
having telephone contact with its members.
This guide has been prepared as an educational tool.
For legal matters, consult your own counsel. Copies
of the complete Telephone Consumer Protection Act and the
FCC's Report and Order in CC Docket No. 92-90 released
on 10/16/92 are available from:
CCMI
1120 19th Street, N.W.,
Suite 620
Washington, DC 10036
202-452-1422
www.telview.com
TCPA violations should be reported in writing to:
Federal Communications Commission
1919 M Street, N.W.
Washington, DC 20554
1-888-225-5322
www.fcc.gov
The Direct Marketing Association offers a Telephone Preference
Service, a useful tool for removing names of consumers who
have expressed a preference against all telemarketing calls.
To subscribe, you may submit your request in writing to:
Telephone Preference Service
c/o The Direct Marketing Association
P.O. Box 9014
Farmingdale, NY 11735-9014
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