The Telephone Consumer Protection Act (TCPA) was enacted in 1991 to defend people from unwanted solicitations such as robocalls, autodials, telemarketers, and invasive text messages. It was challenged twice in 1995 (Moser v. FCC and Destination Ventures Ltd. v. FCC), but both courts upheld the act and deemed it constitutional.
TCPA later spawned a National Do Not Call Registry, in which consumers can enroll to prevent solicitors from contacting them. As of 2007, companies and solicitors must honor a consumer’s Do Not Call registration permanently. (The term used to be five years.)
Other TCPA provisions prevent solicitors from calling before 8am or after 9pm, from using autodialers, and from using artificial recordings. As per the TCPA, solicitors must provide their name, phone number, address, and state on whose behalf they are calling. They must also give recipients the opportunity to opt out from future calls.
The TCPA specifically prohibits companies from using autodialers to call people. An autodialer is any type of equipment or computer software that dials phone numbers without human intervention. Calls made using autodialers frequently result in hang-ups or lengthy periods of “dead air” before a live person comes on the line.
A Brief History of the TCPA
Because it involves telecommunications, the TCPA has gone through several sizable changes since its ratification 25 years ago. The act and its amendments have also been challenged repeatedly, but (to the relief of consumers) always upheld by courts.
Here are some of the TCPA’s many amendments and milestones:
- 1995: The TCPA’s constitutionality is upheld in two landmark cases, Moser v. FCC and Ventures Ltd. v. FCC.
- 2003: The Federal Trade Commission (FTC) establishes the National Do Not Call Registry in compliance with the Do-Not-Call Implementation Act of 2003. Telemarketers are prohibited from contacting registered consumers for five years from the date of consumers’ registration.
- 2003: The CAN-SPAM Act expands TCPA protection to include unsolicited emails.
- 2005: The Junk Fax Prevention Act expands TCPA protection to include unsolicited faxes.
- 2007: The Do-Not-Call Improvement Act changes the term of Do Not Call registration from five years to indefinite/permanent.
- 2009: The Satterfield v. Simon & Schuster decision by the Ninth Circuit Court of California determines that the TCPA also protects consumers from unsolicited text messages.
- 2014: In the largest (but not the first) TCPA-related class action settlement ever, Capital One and three collection agencies agree to pay $75.5 million to end a suit that arose from Capital One’s use of an autodialer to call people’s cellphones.
TCPA Rules with Regard to Political Robocalls
The FCC recently issued a reminder that political campaigns are also subject to TCPA provisions, albeit with some exceptions.
Most notably, robocalls, autodials, and prerecorded messages from political campaigns are permitted to landlines, provided the caller identifies him/herself at the start of the call and gives the recipient the option to opt out from future calls.
However, these kinds of calls and messages are prohibited for cellphones and other mobile devices, with three exceptions:
(1) Calls made for emergency purposes
(2) Calls made with the prior express consent of the called party
(3) Calls made to collect debts “owed to or guaranteed by the United States”
The FCC also emphasized to political robocallers that failure to comply with the TCPA “may subject them to enforcement action, including monetary forfeitures as high as $16,000 per violation.”
While the entire United States is subject to the rules outlined in the TCPA and related acts, many states have legislated even stricter robocall regulations.
For example, in Indiana, all prerecorded robocalls are prohibited unless a live operator first gets permission to play the recorded message.
Indiana is one of 14 states that restrict autodials and robocalls by politicians and political campaigns. Wyoming and Arkansas have the most stringent laws, forbidding these calls entirely. Meanwhile, states like North Carolina, Minnesota, Montana, and North Dakota have laws like Indiana’s, requiring verbal consent before playing a prerecorded message.
Check your own state’s robocall regulations to determine if you may have been a victim of unlawful solicitation. If so, you may be entitled to compensation.
As we all know, countless companies ignore the TCPA and Do Not Call Registry. They still engage in robocalling, autodialing, and other unlawful practices, to the dismay of consumers. As a result, people have brought myriad lawsuits against these companies, in some cases collecting thousands or even millions of dollars. (See below: “TCPA-Related Lawsuits.”)
Even if a human operator is on the other end of an unwanted call you receive, it is possible that the call was made using an autodialer. If you pick up the phone and are greeted by a prerecorded message, the call was almost certainly made using an autodialer.
If you receive a robocall from a telemarketer on your cellphone, and you never gave them express written consent (in the form of a written or electronic signature) to contact you, this too is a violation of the TCPA. If you told a telemarketer or debt collector that they had the wrong number, and they continue to contact you, this is a violation as well.
Furthermore, regardless of whether a telemarketer talks to the recipient or leaves a voicemail, he or she must provide an option for the recipient to opt out of the calls. When answering a call, this option must be given at the beginning of the message, and when leaving voicemails, telemarketers must provide toll-free call-back numbers so that recipients can add their phone numbers to a do-not-call list.
Robocallers must also provide their identities, phone numbers, and addresses. If they violate any of the above, they may be subject to litigation.
The largest and most famous TCPA settlement occurred in August 2014, when Capital One (and three collection agencies) agreed to pay $75.5 million to end a class action suit that arose from Capital One’s use of an autodialer to call consumers’ cellphones.
A few months later, Wells Fargo settled a similar suit for $14.5 million after it used autodialers and prerecorded messages to try and collect on consumer credit card accounts between 2009 and 2014.
Other major TCPA-related settlements include the following:
- AT&T Mobility: $45 million (Oct. 2014)
- HSBC: $40 million (Sep. 2014)
- Bank of America: $32 million (Sep. 2014)
- Midland Credit: $20.5 million (July 2016)
- Wells Fargo: $16.3 million (July 2016)
- Life Time Fitness: $15 million (Feb. 2015)
- Walgreen: $11 million (Mar. 2015)
- Millward Brown: $11 million (Mar. 2015)
In 2015, a man named David Dubanoski filed a class action suit against Walmart after he received 33 autodials in a span of 11 days. The calls were in regard to a Walmart credit card; Mr. Dubanoski did not have such a card.This suit is still pending, but if Mr. Dubanoski receives $1,500 per call (as the law allows), Walmart could owe him nearly $50,000.
Eligibility and Compensation
If you receive unwanted calls or messages from solicitors, our attorneys may be able to help you file a claim for compensation. We assist people who are wrongly contacted by a company looking for a different person, as well as those who were contacted after requesting that a company stop calling. For each unwanted call, a consumer may be able to collect between $500 and $1,500.
If you have questions about your rights under the TCPA, contact us today and fill out a free, no-obligation case review.