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Telephone Consumer Protection Act

In an effort to address a growing number of telephone marketing calls, in 1991 Congress enacted the Telephone Consumer Protection Act (TCPA). The TCPA is located in the United States Code, beginning at 47 U.S.C. §227.

The TCPA restricts the making of telemarketing calls, the sending of SMS/text messages, and the use of automatic telephone dialing systems and artificial or prerecorded voice messages. The rules apply to common carriers as well as to other marketers.

In 1992, the Federal Communications Commission (FCC) adopted rules to implement the TCPA, including the requirement that entities making telephone solicitations institute procedures for maintaining company-specific do-not-call lists.

Most recently, in 2012, the FCC revised its TCPA rules to require telemarketers (1) to obtain prior express written consent from consumers before robocalling them; (2) to no longer allow telemarketers to use an "established business relationship" to avoid getting consent from consumers when calling their home phones; and (3) to require telemarketers to provide an automated, interactive "opt-out" mechanism during each robocall so consumers can immediately tell the telemarketer to stop calling.

Earlier, in 2003, the FCC revised its TCPA rules to establish, in coordination with the Federal Trade Commission (FTC), a national Do-Not-Call Registry. The national registry is nationwide in scope, covers all telemarketers (with the exception of certain nonprofit organizations), and applies to both interstate and intrastate calls.

The Do-Not-Call registry went into effect on October 1, 2003 and is administered by the FTC. To reduce the number of hang-up and dead air calls consumers experience, the FTC’s telemarketing rules also contain restrictions on the use of autodialers and requirements for transmitting caller ID information.

The TCPA includes a private right of action (meaning an individual or individuals can file a lawsuit for a violation of the statute) for damages ranging from $500 to $1,500 per violation and has been the subject of much class action litigation for the past 30 years.

Before making telemarketing calls or communicating with customers or potential customers using SMS/text messaging, a business should consult a lawyer with expertise on the TCPA and any similar state statutes.

The Telephone Consumer Protection Act (TCPA) of 1991 is a federal law that restricts telemarketing calls, text message marketing, and the use of autodialers and prerecorded messages. In Texas, as in other states, businesses must comply with the TCPA, which includes obtaining prior express written consent from consumers before making robocalls, not relying on an established business relationship to bypass consent for home phone calls, and providing an opt-out mechanism during robocalls. The Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) have established rules to implement the TCPA, including the creation of a national Do-Not-Call Registry which has been effective since October 1, 2003. This registry applies to both interstate and intrastate calls and covers all telemarketers except certain nonprofits. Violations of the TCPA can lead to lawsuits with damages ranging from $500 to $1,500 per incident. Texas businesses should consult an attorney to ensure compliance with the TCPA and any relevant state laws regarding telemarketing and consumer communication.

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