The Telephone Consumer Protection Act of 1991 (TCPA) was passed by the United States Congress in 1991 and signed into law by President George H. W. Bush as Public Law 102-243. It amended the Communications Act of 1934. The TCPA is codified as 47 U.S.C. 227. The TCPA restricts telephone solicitations (i.e., telemarketing) and the use of automated telephone equipment. The TCPA limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages, and fax machines. It also specifies several technical requirements for fax machines, autodialers, and voice messaging systems—principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.
Unless the recipient has given prior express consent, the TCPA and Federal Communications Commission (FCC) rules under the TCPA generally:
- Prohibits solicitors from calling residences before 8 a.m. or after 9 p.m., local time.
- Requires solicitors maintain a "do-not-call" (DNC) list of consumers who asked not to be called; the DNC request must be honored for 5 years.
- Requires solicitors honor the National Do Not Call Registry.
- Requires solicitors provide their name, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that person or entity may be contacted.
- Prohibits solicitations to residences that use an artificial voice or a recording.
- Prohibits any call made using automated telephone equipment or an artificial or prerecorded voice to an emergency line (e.g., "911"), a hospital emergency number, a physician's office, a hospital/health care facility/elderly room, a cellular telephone, or any service for which the recipient is charged for the call.
- Prohibits autodialed calls that engage two or more lines of a multi-line business.
- Prohibits unsolicited advertising faxes.
- In the event of a violation of the TCPA, a subscriber may sue for up to $1,500 for each violation or to recover actual monetary loss, whichever is higher. In addition, the subscriber may seek an injunction.
The FCC's initial do-not-call list regulations were ineffective at proactively stopping unsolicited calls because the consumer had to make a do-not-call request for each telemarketer. This burden was lifted by the Do-Not-Call Implementation Act's establishment of the National Do Not Call Registry and adoption of the National Do-Not-Call list by the FCC in 2003
The CAN-SPAM Act made a minor amendment to the TCPA to explicitly apply the TCPA to calls and faxes originating from outside the U.S.
The portions of the TCPA related to unsolicited advertising faxes were amended by the Junk Fax Prevention Act of 2005.
Unusual statutory provision
Though the TCPA is a federal statute, suits brought by consumers against violators are frequently filed in state courts. The TCPA is unusual in that the language creating a private right of action led to conflicting views on whether the federal courts had federal question subject matter jurisdiction. The TCPA provides in relevant part: "A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State. …" As of January 2012, there was a circuit split among the federal appeals courts on the issue of whether federal courts have federal question, diversity jurisdiction (individually or under the Class Action Fairness Act of 2005), or whether the state courts have exclusive jurisdiction.
Major court cases
The TCPA's constitutionality was challenged by telemarketers soon after it was enacted. Two cases, Moser v. FCC, 46 F.3d 970 (9th Cir. 1995) cert. denied, 515 U.S. 1161 (1995) and Destination Ventures Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995) effectively settled this issue finding the restrictions in the TCPA were constitutional.
The United States Supreme Court resolved a significant circuit split to decide that federal courts have federal question subject matter jurisdiction in Mims v. Arrow Financial Services, LLC, __ US __, 132 S. Ct. 740, 181 L. Ed. 2d 881 (Jan. 18, 2012), resolving a circuit split.
The Ninth Circuit held that the TCPA applies to unsolicited cellular telephone text messages advertising the commercial availability of goods or services as "calls" made in violation of the act.
- ^ 47 U.S.C. § 227; 47 C.F.R. § 64.1200
- ^ 47 U.S.C. § 227(B); FCC Regulations exempt non-solicitation calls.
- ^ 47 U.S.C. § 227(b)(1)(A)
- ^ Robert R. Biggerstaff, State Courts and the Telephone Consumer Protection Act of 1991: must States Opt-in? Can States Opt-out? 33 Conn. L. Rev. 407 (2001).
- ^ Subsection 227(b)(3)
- ^ Mims v. Arrow Financial Services, LLC, 421 Fed.Appx. 920, 921 (11th Cir. 2010); Murphy v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000) (federal courts lack federal-question jurisdiction over TCPA claims); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 519 (3rd Cir. 1998) (same); Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Servs., Ltd., 156 F.3d 432, 434 (2nd Cir. 1998) (same); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 514 (5th Cir. 1997) (same); International Science & Technology Inst. v. Inacom Communications, Inc., 106 F.3d 1146, 1158 (4th Cir. 1997) (same); Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463–465 (6th Cir. 2010) (federal courts have federal-question jurisdiction over TCPA actions), Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447 (7th Cir. 2005) (same)
- ^ http://www.supremecourt.gov/opinions/11pdf/10-1195.pdf
Law review articles
- Robert R. Biggerstaff, State Courts and the Telephone Consumer Protection Act of 1991: must States Opt-in? Can States Opt-out? 33 Conn. L. Rev. 407 (2001).
- Kevin N. Tharp, Federal Court Jurisdiction over Private TCPA Claims: Why the Federal Courts of Appeals Got it Right, 52 Fed. Comm. L.J. 189 (1999).
- David E. Sorkin, Unsolicited Commercial E-Mail and the Telephone Consumer Protection Act of 1991, 45 Buffalo L. Rev. 1001 (1997).
- Hillary B. Miller and Robert R. Biggerstaff, Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes, Fed. Comm. L.J. 667 (2000)