Updated Telephone Consumer Protection Act Further Protects You – Know Your Rights When It Comes to Who’s Calling You
What is the Telephone Consumer Protection Act (TCPA)?
The Telephone Consumer Protection Act (TCPA) was initially implemented in 1991 to protect consumers from unsolicited calls. In addition to setting the regulations for what is allowed, the TCPA provides guidelines for individuals to file lawsuits and collect damages for receiving unsolicited telemarketing calls, faxes, pre-recorded calls, or autodialed calls.
What are the penalties for failing to comply with the TCPA?
The TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per unsolicited call/message. In determining the final amount of statutory damages to award, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA. Considering that telemarketing campaigns often involve thousands – in some cases millions – of calls/text messages, potential damages under the TCPA may escalate very quickly.
It is important that if you believe your rights have been violated, to file a complaint to document your experience.
How is a call classified as “Telemarketing”?
A “Telemarketing” caller tries to sell you something and/or market a product or service to you. If you get a phone call or text message encouraging you to buy or provide information about a product or service for sale, chances are this is a telemarketer.
What about text messages? Are these protected under the TCPA?
The TCPA provides protection not only for voice calls, but also for short message service (SMS) text messages, provided that they are classified as “Telemarketing” in nature. If you receive telemarketing text messages, they might be breaking the law. It is important that if you believe your rights have been violated, to file a complaint to document your experience.
So, what is new in the TCPA for October 16, 2013?
On February 15, 2012, the FCC approved additional protection against unwanted robocalls and autodialed calls with a live person pitching a product or service.
Changes to the TCPA, effective October 16, 2013 are as follows:
- Prior Written Express: Unambiguous written consent is required before a telemarketing call or text message. However, calls that are manually dialed and do not contain a pre-recorded message are exempt from this rule.
In the past, advertisers could rely on an established business relationship (such as a previous purchase) to circumvent the need to obtain a consumer’s written consent to receive telemarketing calls. That exception to the consent requirement will no longer exist after this year.
Advertisers/Telemarketers must have express written consumer consent even if they previously had a business relationship with the consumer. And, the written consent must be very clear so that the consumer understands that they agree to be contacted by the advertiser/telemarketer. Keep in mind that consumers can consent by using approved e-signatures as provided for in the E-Signature Act of 2000.
- No “established business relationship” exemption: In the past, advertisers could rely on an established business relationship (such as a previous purchase) to circumvent the need to obtain a consumer’s written consent to receive telemarketing calls. That exception to the consent requirement will no longer exist after this year.
If a dispute concerning consent arises, the telemarketer bears the burden of proof to demonstrate that a clear and conspicuous disclosure was provided and that the consumer unambiguously consented to receive telemarketing calls to the specific telephone number.
What is a “Robocall” or “Autodial” call?
An “autodialer” is frequently used by telemarketers to store and call lists of phone numbers and can involve a live person on the other end. A “robocall” is when an autodialler is used to deliver a pre-recorded message, rather than have a live person deliver the marketing pitch.
Are Debt Collectors and Telemarketers a problem for very many people?
Over 100 million telemarketing and debt collection calls are made every day. Over 30 million Americans are being hassled for debt collection, many via illegal methods and practices. Rates of incidents are on the rise, with many tactics growing increasingly aggressive. Additional statistics and information on the trends of unwanted calls and texts can be found here.