What is regulated under the TCPA?
The Telephone Consumer Protection Act (TCPA) regulates telemarketing calls, auto-dialed calls, prerecorded calls, text messages, and unsolicited faxes. It also is the authority to create the National Do-Not-Call List. The Federal Communications Commission (“FCC”) is empowered to issue rules and regulations implementing the TCPA.
What are the TCPA’s restrictions on collection calls under FCC rules?
The FCC has determined that debt collection calls are not telemarketing calls. Therefore, under the rule the FCC has stated that with respect to autodialed or prerecorded debt collection calls, to the extent that they do not contain telemarketing messages, would not require any consent when made to residential wireline consumers, but require either prior written or oral consent if made to a consumer’s wireless number referring to 47 C.F.R. § 64.1200(a)(1).
On February 15, 2012, the Federal Communications Commission (FCC) issued a Report and Order (Order) that updates and clarifies certain provisions of the TCPA. Remaining in effect is the FCC’s earlier ruling that autodialed or prerecorded collection calls to wireless numbers are made with the consumer’s “prior express consent” if the consumer has given the cell phone number to the creditor for use in normal business communications, such as in a credit application.
The FCC also provided in the Order a non-exhaustive list of other types of calls that are exempt from the written consent requirement reserved for telemarketing calls, such as research and survey calls and bank account fraud alerts to the extent they do not contain telemarketing messages as well.
What are the TCPA’s restrictions on telemarketing and advertisements under FCC rules?
The FCC rules that govern the delivery methods telemarketing and advertisements. Telemarketing means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.
Beginning October 16, 2013, prior express written consent was required for all autodialed calls, pre-recorded calls or texts sent or made to a wireless number and pre-recorded calls made to wired numbers for advertising or telemarketing purposes. The prior business relationship exemption was eliminated.
Exceptions include calls:
- that are manually dialed and do not contain a pre-recorded message;
- made for emergency purposes;
- not made for a commercial purpose;
- made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing;
- made by or on behalf of a tax-exempt nonprofit organization; or
- that delivers a “health care” message made by, or on behalf of, a “covered entity” or its “business associate,” as those terms are defined in the HIPAA Privacy Rule.
Some other important restrictions under the TCPA include:
- Disconnect an unanswered telemarketing call prior to at least 15 seconds or four (4) rings.
- Abandon more than 3% of all telemarketing calls that are answered live by a person, as measured over a 30-day period for a single calling campaign. If a single calling campaign exceeds a 30-day period, the abandonment rate shall be calculated separately for each successive 30-day period or portion thereof.
Additional requirements for all artificial or prerecorded voice telephone messages include:
- At the beginning of the message, it must state clearly the identity of the business, individual, or other entity that is responsible for initiating the call.
- During or after the message, state clearly the telephone number (other than that of the auto-dialer or prerecorded message player that placed the call) of such business, other entity, or individual. The telephone number provided may not be a number for which charges exceed local or long distance charges.
- Provide an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request
And finally, no person or entity may initiate any telephone solicitation to:
- Any residential telephone subscriber before the hour of 8 a.m. or after 9 p.m. (called party's local time)
- A residential telephone number on the national do-not-call registry
What if a wired number is ported to a wireless number?
The FCC rule allows a conditional 15 day grace period for calls made to numbers which have been ported from wired lines to wireless where the consumer may be charged for the call. A person will not be liable for violating the prohibition when the call is placed to a wireless number that has been ported from wireline service and such call is a voice call; not knowingly made to a wireless number; and made within 15 days of the porting of the number from wireline to wireless service, provided the number is not already on the national do-not-call registry or caller’s company-specific do not-call list.
What if a number is added to the National Do Not Call Registry?
The FCC rule allows a person to employ a version of the national do-not-call registry obtained from the administrator of the registry no more than 31 days prior to the date any call is made, as long as the person conducts internal training, and has written procedures and records documenting this process.
What is the compliance risk?
The TCPA allows individuals to file lawsuits and collect damages. There are cases, especially in the collections area, that are in conflict in the federal courts. For example, a court in Pennsylvania found that it was the intent of Congress that only telemarketing, not debt collection calls, be covered by the TCPA. Another court in Florida ruled that providing a cell phone number on a credit application was not sufficient prior consent to contact the number for debt collection. While yet another stated that just the “capacity of a “predictive dialer” was sufficient, even if it was not used (preview dialing was used).
It is recommended that if you have any questions as to the applicability of the TCPA to your organization and processes, that you should contact your organization’s counsel.
How Experian can help
Identification of wireless numbers is critical to any organization engaging in activities such as debt collection, telemarketing or advertising that may be subject to the TCPA. Experian has services that may be able to assist your organization.