Main requirements imposed by the TCPA include the following:
• Limit the calls to the period between 8 AM and 9 PM.
• Maintain an internal, company specific DNC list and honor a consumer’s request
not to be called again.
• Have a clearly written DNC policy, available to anyone upon request.
• Have a clearly defined training program for personnel making the telephone solicitations.
• Disclose a telephone number or address where the seller may be contacted.
When a DNC request is received, the requester may not be called again on behalf
of the business for which the solicitation was made. Names must be kept on a company’s
internal DNC list for 5 years unless the request is revoked.
A telemarketer is required to forward all requests to be removed from a list to
the company on whose behalf it is calling. If a telemarketer maintains the DNC list,
the seller on whose behalf the telemarketer places the call will still be subject
to liability for any failure to honor a DNC request. The DNC request must also be
honored by any affiliate or subsidiary of the company if there is a reasonable expectation
on the part of the consumer that the request would also apply to the affiliate or
A call is exempt from the TCPA's DNC provisions if it:
• Is made on behalf of a tax-exempt nonprofit organization;
• Is not made for a commercial purpose;
• Does not include an unsolicited advertisement, even if it is made for a commercial
• Is made to a consumer with whom the calling company has an EBR.
The term EBR is defined under the TCPA the same as it is under the TSR and the same
rules apply (see discussion above).
Other important provisions of the TCPA include:
• Wireless Numbers- the TCPA prohibits
using an automatic telephone dialing system (ATDS) to call a cell phone, pager or
any other number for which the called party is charged without the consumer’s prior
express consent (prior express written
consent required for telemarketing/advertising calls).
• A predictive dialer has been interpreted by the FCC And some federal courts to
constitute an ATDS.
• Subject to a few limitations, the FCC has held that a consumer who knowingly provides
his/her cell phone number to a business as a contact number has provided "prior
express consent" to be contacted at that number (for non-telemarketing calls).
• Federal courts have held that an ATDS is any equipment that has the capacity "to store or produce telephone numbers to
be called, using a random or sequential number generator," regardless of whether
it is used in such manner.
• The FCC and federal courts have held that a text message constitutes a telephone
call for purposes of the TCPA and FCC regulations.
• To obtain prior express written
consent, the caller must enter into an agreement with the consumer, which meets
the following requirements:
1) Must be in writing;
2) Must be signed by the consumer
(an electronic signature is sufficient pursuant to the E-SIGN Act);
3) Must specifically authorize
the caller to place telemarketing
calls to the consumer;
4) Must clearly authorize
the caller to use an ATDS and/or
5) Must include the telephone number
to be called; and
6) Must disclose that consumers are not required to sign the agreement (directly
or indirectly) or agree to the agreement as a
condition of purchasing any property, goods or services.
• Emergency Numbers - the TCPA prohibits
using an ATDS to place any calls to emergency phone lines (including 911 numbers,
hospital emergency lines, physicians or medical service lines, health care facilities,
poison control centers, fire protection, or law enforcement agencies).
• Prerecorded Messages - the TCPA
prohibits sending prerecorded messages to residential subscribers, except in cases
of emergency, if the caller has received prior express written consent (see requirements
listed above) or if another exemption (e.g. non-solicitation messages) apply.
• Automated Opt-out Mechanisms. The
FCC's amended TCPA regulations require all
prerecorded telemarketing messages and
abandoned call messages to provide an automated, interactive voice
and/or key-press-activated opt-out mechanism that allows consumers to make an internal
DNC request. The mechanism must automatically add the consumer's number to the caller's
internal DNC list and immediately terminate the call. If the message is left on
an answering machine or in a voice mailbox, the message must provide a toll free
number that enables the consumer to connect to the automated opt-out mechanism.
• Multi-Line Businesses - the TCPA
prohibits using an ATDS in a manner that simultaneously engages two or more lines
of a multi-line business.
• Fax Machines
- the TCPA also bans the use of fax machines to send unsolicited commercial advertisements
to either residences or business, without express written permission.