What Is the Telephone Consumer Protection Act? August 14, 2020 | Uncategorized

Are you receiving unwanted, disruptive, and annoying calls to your home phone or cellphone? The U.S. Congress enacted the federal Telephone Consumer Protection Act, or “TCPA,” which protects against all unsolicited calls to cellphones, and telemarketing calls to phones on the “Do Not Call” Registry. (See how you can sign up for the Do Not Call Registry here.)

Why Does Federal Law Ban Unwanted Robocalls and Texts?

The U.S. Congress enacted the TCPA in 1991 to free Americans from “robocalls” initiated by abusive and harassing “autodialers,” among other things. As described by its Congressional sponsor, the calls prohibited by the TCPA are “the scourge of modern civilization, they wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone out of the wall.” Congress embedded the reasons for the TCPA into the statute itself with explicit “Congressional Findings”:

Evidence compiled by the Congress indicates that residential telephone subscribers consider automated or prerecorded telephone calls, regardless of the content or the initiator of the message, to be a nuisance and an invasion of privacy. Businesses also have complained to the Congress and the Federal Communications Commission that automated or prerecorded telephone calls are a nuisance, are an invasion of privacy, and interfere with interstate commerce.

The U.S. Supreme Court decided that “‘automated or prerecorded telephone calls’ made to private residences…were rightly regarded by recipients as ‘an invasion of privacy.’” Congress concluded that:

Banning such automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call or when such calls are necessary in an emergency situation affecting the health and safety of the consumer, is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.

Courts have decided that the TCPA serves an “important government interest” by protecting privacy.

The Federal Communications Commission (“FCC”) recently confirmed that the “scourge” of robocalls from automated dialers continues to burden Americans. A 2015 FCC Ruling says that these robocalls “top the list of consumer complaints received by the” FCC,  but reminds that the TCPA gives “heightened protection to wireless consumers, for whom robocalls can be costly and particularly intrusive.”

What Unwanted Calls and Texts Are Against the Law?

In order to remedy the “scourge” of unwanted robocalls,  the TCPA generally declares that automatic telephone dialing to cellphones is unlawful, with limited exceptions:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States –

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice – …

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added).

An “automatic telephone dialing system” (sometimes called an “ATDS”) under the TCPA is “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The FCC has also long ruled that a so-called “predictive” dialer is an ATDS.

Can I Get Money Under the TCPA?

 The TCPA prescribes damages of at least $500 for a violation of the statute; knowing or willful violations of the TCPA are subject to treble statutory damages. 47 U.S.C. § 227(b)(3)(C).  “Knowing or willful” conduct under the TCPA does not require bad faith, but simply a showing that the violator had reason to know, or should have known, that its conduct would violate the statute.

If you believe that you received calls or texts to your cellphone without your prior express consent, or after you asked for them to stop, call or text the lawyers at Gordon, Wolf & Carney.