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.
In Virginia, as in all states, the Telephone Consumer Protection Act (TCPA) regulates telemarketing practices to protect consumers from unwanted calls and messages. The TCPA restricts telemarketing calls, SMS/text messages, and the use of autodialers and prerecorded voices. Telemarketers must obtain prior express written consent from consumers before making robocalls and provide an opt-out mechanism during each call. The national Do-Not-Call Registry, which telemarketers must honor, allows consumers to opt out of telemarketing calls. Violations of the TCPA can lead to lawsuits with damages ranging from $500 to $1,500 per incident. Virginia businesses engaging in telemarketing should ensure compliance with the TCPA and consult an attorney for guidance on both federal and any additional state-specific regulations.