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A business guide
to the Federal Communications Commission (FCC) regulations implementing
the Telephone Consumer Protection Act of 1991
In 1991, Congress
passed the Telephone Consumer Protection Act (TCPA), the first federal
law regulating the actions of legitimate telemarketers. Its purpose is
to strike a balance between protecting the rights of consumers and allowing
businesses to use telemarketing effectively.
Regulated by the Federal
Communications Commission (FCC), this law requires telemarketers to formalize
their existing policies and, where necessary, create new ones to bring
their operations into compliance with the following main restrictions:
Proper Identification
During the introductory portion of all "live operator" outbound
telemarketing calls, the called party must be provided with the name of
the individual making the call, the name of the business, individual or
other entity on whose behalf the call is being made, and a telephone number
or address at which the person or entity may be contacted.
Calling Hour Restrictions
The TCPA expressly forbids calls to private residences before 8:00 a.m.
or after 9:00 p.m. (local time at the called party's location). Any exceptions
must be with the expressed consent of the called party.
"Do not call"
Policies
The TCPA requires each company, with the exception of those making nonprofit
solicitations, to maintain a list of those people who do not wish to be
contacted by phone and to develop a written policy implementing this "Do
not call" list-keeping requirement. These written procedures must
be made available to anyone on demand.
"Do not call" lists must be maintained for a period of 10 years
and cannot be sold, or in any way shared (except with a subsidiary or
affiliate company), without the consumer's expressed consent.
Any employee engaged
in any aspect of the telemarketing process must be fully trained in the
above-mentioned procedures. Service agencies must make sure they are in
compliance and their clients fully understand and agree to follow the
procedures for maintaining "Do not call" data, as the clients
will ultimately be held liable.
A word of warning: If you feel this "Do not call" provision
does not apply to you because you have an existing relationship with the
individuals you call, think again. Although the federal statute creates
an exemption for "established business relationships," the FCC
requires that the "Do not call" requests of established customers
be honored. In effect, once an established customer requests not to be
called, the "established business relationship" exemption ceases
to apply.
Auto Dialer and
ADRMP Regulations
Auto dialers have the capacity to store or produce telephone numbers to
be called using a random or sequential number generator. Automatic Dialing
Recorded Message Players (ADRMPs) are auto dialers that play prerecorded
or artificial messages to the consumer with no introduction by a live
operator.
The TCPA prohibits
the use of ADRMPs to:
- Emergency telephone
lines, including any 911 line; emergency lines of hospitals, physicians,
service offices or health care facilities; poison control centers; or
fire protection and law enforcement agencies.
- Guest/patient rooms
of a hospital, convalescent or other health care facilities, retirement
homes or similar establishments.
- Any telephone number
assigned to a paging service, cellular telephone service, specialized
mobile or other radio common carrier service, or any other service for
which the called party is charged for a call.
- Any residential
telephone line for commercial purposes without the prior expressed consent
of the called party, unless the call is initiated for emergency purposes
or is exempted under other provisions of the TCPA. ADRMPs can be used
for residential calls, provided the call does not include unsolicited
advertising, is to a person with whom the caller has an established
business relationship, or the call is by, or on behalf of, a tax-exempt
nonprofit organization.
The beginning of all
ADRMP calls must clearly state the identity of the business, individual
or other entity initiating the call, telephone number (other than the
ADRMP which placed the call) or address.
While the law does
not regulate the use of ADRMPs to call businesses, it does prohibit using
auto dialers in a way that simultaneously engages two or more lines of
a multi-line business. It also requires that the beginning of the prerecorded
message contain certain identifying information about the caller, such
as the name of the business, individual or other entity initiating the
call and their address or telephone number.
Facsimile Regulations
The TCPA specifically bans the transmission of unsolicited advertisements
to telephone facsimile machines. If, however, the caller has an established
business relationship with the intended recipient, then expressed prior
consent is assumed until a "do not fax" request is received.
By law, each fax transmission
must have a header or footer that clearly states the caller's name, telephone
number and the date and time of transmission. All fax machines manufactured
after 12-20-92 must have the capacity to print this information on either
the first page or, preferably, every page of the transmission. Again,
the company or person on whose behalf the fax has been sent is ultimately
responsible for compliance.
Enforcement and
Penalties
Calling a consumer on two or more occasions within any 12-month period
after they have requested not to be called is a violation of the TCPA
and the FCC rule. Using an artificial or prerecorded voice to call a residence,
an unsolicited advertisement on a telephone facsimile machine or auto-dialed
calls that simultaneously engage two or more phone lines at a multi-line
business are also violations.
Report violations
to the solicitor or business directly using the telephone number or address
provided during the call. If that doesn't stop the calls, and the state
in which the call was made permits, a suit can be filed in state court
to stop such calls and/or sue for monetary loss. The penalty is $500 for
each violation or actual monetary loss, whichever is greater. States can
also initiate a civil action in federal district court against any person
or entity that engages in a pattern or practice of violations of the TCPA
or the FCC rules.
Commonly Asked
Questions About the TCPA:
In general, what
does the FCC regulate pursuant to this law?
The FCC regulates telephone solicitation by restricting the use of auto-dialing
equipment and by prohibiting other commercial calls, such as those to
facsimile machines, cellular phones and emergency service providers. Further,
the FCC was empowered to protect residential subscribers from receiving
uninvited telephone solicitations. This was done by establishing a "Do
not call" list-keeping requirement for residential telemarketing
and by prohibiting calls to residences before 8:00 a.m. or after 9:00
p.m.
Will federal law
compliance suffice?
No. During the several years that the TCPA was in the making, numerous
states proceeded to pass extensive telemarketing legislation of their
own. The state approaches vary widely, from cooling-off periods during
which the consumer has a right to cancel telephone purchases to in-state
"Do not call" mechanisms and time-of-day restrictions. Despite
the obvious interstate character of telemarketing, all state laws that
apply to telemarketing activities must be complied with in addition to
the federal law.
What is a basic
"Do not call" list-keeping protocol?
The written policy should include, but is not limited to: 1) how "Do
not call" requests will be captured, 2) how, and how quickly, these
names and telephone numbers will get into the database, 3) how, where
appropriate, the "Do not call" request will be forwarded, in
a timely manner, to the person, business or entity on whose behalf the
call was made and its affiliated companies; and 4) how the accuracy of
the database will be maintained.
The American Teleservices
Association, Inc. (ATA) is a not-for-profit trade association founded
in 1983 to represent and serve the telemarketing industry. It is committed
to meeting the needs of its members, as well as protecting the rights
of consumers and businesses having telephone contact with its members.
This guide has been
prepared as an educational tool. For legal matters, consult your own counsel.
Copies of the complete Telephone Consumer Protection Act and the FCC's
Report and Order in CC Docket No. 92-90 released on 10/16/92 are available
from:
CCMI
1120 19th Street, N.W.,
Suite 620
Washington, DC 10036
202-452-1422
www.telview.com
TCPA violations should
be reported in writing to:
Federal Communications
Commission
1919 M Street, N.W.
Washington, DC 20554
1-888-225-5322
www.fcc.gov
The Direct Marketing Association offers a Telephone Preference Service,
a useful tool for removing names of consumers who have expressed a preference
against all telemarketing calls. To subscribe, you may submit your request
in writing to:
Telephone Preference
Service
c/o The Direct Marketing Association
P.O. Box 9014
Farmingdale, NY 11735-9014
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