Telephone Consumer Protection Act (TCPA) compliance
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The Telephone Consumer Protection Act (TCPA) regulates telemarketing calls, autodialed calls, prerecorded calls, text messages and unsolicited faxes. The national do-not-call list was also created under the TCPA, and 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 aren’t telemarketing calls. Therefore, the FCC has stated that autodialed or prerecorded debt collection calls (as long as they don’t contain telemarketing messages) don’t require any consent when made to residential wireline consumers, but these calls require either prior written or oral consent if made to a consumer’s wireless number, per 47 C.F.R. § 64.1200(a)(1).
On Feb. 15, 2012, the 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 don’t also contain telemarketing messages.
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The TCPA restricts telemarketing calls made to:
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 Oct. 16, 2013, prior express written consent was required for all autodialed calls, prerecorded calls or texts sent or made to a wireless number and prerecorded calls made to wired numbers for advertising or telemarketing purposes. The prior business relationship exemption was eliminated.
Exceptions include calls:
Some other important restrictions under the TCPA include:
Additional requirements for all artificial or prerecorded voice telephone messages include:
And finally, no person or entity may initiate any telephone solicitation to:
The FCC rule allows a conditional 15-day grace period for calls made to numbers that have been ported from wired to wireless lines where the consumer may be charged for the call. A person won’t 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 porting the number from wireline to wireless service, provided the number isn’t already on the national do-not-call registry or caller’s company-specific do-not-call list.
The FCC rule allows a person to employ a version of the national do-not-call list obtained from the list administrator 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.
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 wasn’t 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 wasn’t used (preview dialing was used).
It’s 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.
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