What is the Telephone Consumer Protection Act?

Posted by Ryan Howard on May 20, 2016 11:04:23 AM

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On March 10, 1876, the first phone call was made when Alexander Graham Bell, inventor of the telephone, called his assistant, Thomas Watson, and said, "Mr. Watson, come here. I want to see you." Now, just past the 140th anniversary of that call, the evolution of telephone technology and regulatory compliance impacts call centers, debt collection agencies and more.

What is the TCPA and what regulations does it dictate?

Telephone Consumer Protection Act of 1991

Passed in 1991 by Congress and signed by President George Bush, the TCPA was designed as a way to protect consumers from too many unsolicited phone calls. The law did not immediately set up the National Do Not Call Registry, however in 2003, the FTC, recognizing the ineffectiveness of solicitors keeping their own specific DNC lists, established it. Consumers can request to be added to the National Do Not Call Registry and the TCPA requires solicitors to honor that request. Also, unless prior express consent is given by the consumer, the TCPA regulates:

  • Calls between 9pm and 8am local time are prohibited
  • Solicitors must identify themselves and whom they are representing
  • Phone solicitors must maintain their own do not call list and honor a consumer's request for 5 years
  • Solicitation calls to landlines using an automated recording or an autodialer are prohibited
  • Computerized solicitation calls to any device or phone number in which the consumer will be charged for the call (i.e. cell phones) are prohibited

The law also prohibits unsolicited faxes of advertisement. How many companies send advertisements over fax, you may be asking? This is precisely how the TCPA gets outdated really quickly. 

Compliance and the TCPA

As with any mandates written around technology, the rules can become ineffective fast. With litigation brought on by consumers and concerned industry groups, there have been many additions and requests for clarification on the TCPA. Interpretations of the law have included other methods of communication with consumers including text messages. Depending on the types of calls, telemarketing or non-telemarketing, one requires consumer consent and the other requires that consent in writing. Some calls can be both telemarketing and non-telemarketing offering both information and promotional material, blurring compliance and consent. More uncertainty also abounds as technology continues to change and businesses struggle to keep up, adopting their own communication policies to stay in touch with customers. Some consumers actually do want to receive certain calls, from their healthcare providers for instance, but both the providers and consumer may be unaware of TCPA regulations. Other clarification concerns include:

  • Identification or classification of autodialing systems - with technology continually changing, new definitions must be included
  • Consumers revoking consent to be contacted
  • Text messaging
  • Reassigned phone numbers - if a consumer consented to calls to their mobile number but their number is subsequently reassigned to a new mobile user

Caller Beware

At this point, it is certainly understandable that businesses need to be aware of the TCPA and the potential violations of the law. To ensure compliance in the best way possible, make sure to:

  • Obtain prior written express consent before attempting to contact a customer via phone
  • Ensure consent forms are clear and keep all records of consent
  • Allow consumers to opt out of communications
  • Assume that any device that automates mass phone calls can be constituted as an autodialer
  • Categorize your messaging (marketing or informational) and keep it as neutral as possible
  • Work with partners who are TCPA compliant

Educating yourself on the regulations that affect your communications is important in building and nurturing a relationship with your customers. Even with a TCPA compliant partner, your business can still be held responsible for extraneous or unnecessary contact. A backlog of litigation remains for the FCC with regards to clarification and the impact of these lawsuits could lead to many more changes. 

The first telephone call was only the beginning of the effects of communication and technology on our lives. No one could have predicted its success nor its impact. Even Western Union's response to Alexander Graham Bell's invention was, "This 'telephone' has too many shortcomings to be seriously considered as a means of communication. The device is inherently of no value to us." In actuality, the telephone to 21st century businesses is invaluable. Use it wisely.

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Topics: TCPA

Ryan Howard

Written by Ryan Howard

Vice President of Business Development at the group of BYL Companies