The Telephone Consumer Protection Act (“TCPA”) protects residential phones – personal cell phone and landline —- users against certain types of unwelcome prerecorded calls. Each telemarketer who uses prerecorded calls when advertising property, goods or services must allow residential phone subscribers mechanisms to opt-out of continuing to receive such calls. This article describes the scope of the protections under the company specific do not call lists; (2) how to make the caller stop calling you; and (3) whether the calls may violate the TCPA thereby entitling you to receive between $ 500 to $ 1,500 per call as statutory damages.
It is important to document the details of the call including whether the caller used a prerecorded greeting, prerecorded message, or left a prerecorded message on your landline’s voicemail. Although the TCPA does not protect residential landlines from being called using any Automated Telephone Dialing System (“ATDS” or “robodialer”), the TCPA prohibits many types of prerecorded solicitation calls. Although prerecorded calls are very seldom manually dialed, it’s the telemarketer’s use of the prerecorded message that is actionable under the section of the TCPA discussed in this article.
PRERECORDED AND ROBO-DIALED CALLS TO CELL PHONES ARE ALSO GOVERNED BY A DIFFERENT, MORE PROTECTIVE SECTION OF THE TCPA
A different section of the TCPA already prohibits many calls placed to cell phones using an ATDS or an artificial or prerecorded voice. The exemptions and defenses available to companies that call cell phones are often more protective of consumers so an experienced TCPA lawyer will examine both possible claims. For example, the company specific do not call list and the national do not call list apply only to “telephone solicitations”. The TCPA’s prohibitions against robocalls and prerecorded voices are not limited only to telemarketing calls.
If you are receiving calls on your cell phone using a prerecorded voice or message and/or a robo dialer, please click on the big blue button immediately below for important information concerning your rights.
If you are receiving robocalls and/or prerecorded calls on an emergency line (e.g., “911” line), health care facility, wireless phone service, or any number for which the consumer is charged for the call, these calls are also governed by the section which protects cell phones so please click on the big blue button immediately above.
Residential numbers generally receive less protection from prerecorded telephone messages because this section of the TCPA grew out of the company-specific opt-out list back when most people used landlines and few people had cell phones. The FCC promulgated the first TCPA regulations in 1992 and updated them in 1995, again this was before predictive dialers evolved and decreased the costs of telemarketing until consumer complaints against companies that they did business with skyrocketed. The FCC is less protective of landlines because people don’t carry landlines with them everywhere the go including while they are at work or driving. Telemarketing calls deserve the least (if any) protection. So, Congress drafted a special section concerning prerecorded calls to residential numbers.
The information in this article concerns (1) prerecorded (2) telemarketing calls (3) to residential telephone numbers. The information in this article applies even if the residential phone user has not registered their number on the National Do Not Call List (“DNC”). If you are listed in the national DNC List, you should also read this article by clicking here after you have read the information on this page.
If the subscriber has registered their number on the national Do Not Call List, those users also have their rights under the TCPA’s protections afforded to people who register their number in the DNC List. The national Do Not Call List does not protect “business phones” nor do the restrictions against prerecorded advertisements described in this article. If the business phone is assigned to a cell phone, however, the TCPA’s restrictions against using robo-dialers and/or prerecorded voices to call a cell phone would apply to many types of calls including telemarketing calls.
To understand when and how the TCPA protects residential phone users against prerecorded telemarketing calls, phone users need to be generally familiar with : (1) the TCPA’s statutory language prohibiting unsolicited prerecorded advertisements to residential telephones; (2) the TCPA’s statutory exceptions to this general prohibition; and (3) the FCC’s orders explaining the statutory coverage (or lack of coverage) and the exemptions.
THE TCPA PROTECTS RESIDENTIAL PHONES AGAINST MANY TYPES OF PRERECORDED CALLS
The TCPA provides that “[i]t shall be unlawful for any person within the United States, or any person outside the United States if the recipient is located within the United States —
(B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes, is made solely pursuant to the collection of a debt owed to or guaranteed by the United States, or is exempted by rule or order by the Commission under paragraph (2)(B).”
47 U.S.C. Section 227(b)(1)(B) (2017). The TCPA does not define “residential” telephones. The FCC has not ruled on what constitutes a “residential telephone” for purposes of the statutory section quoted above. But, when the FCC established the National Do Not Call List in its Order issued on July 3, 2003 (the “2003 Order”), the FCC concluded that “wireless phone subscribers may participate in the national do-not-call list.” 2003 Order, Para 36 (July 3, 3003). The FCC reasoned that Congress intended the TCPA to protect residential wireless telephones at least as much as residential landlines. Even in 2003, the FCC noted that many people use their residential wireless line the same way they use their residential landline. Today, most phone users in the U.S. have cut the cord completely so this interpretation makes even more sense now.
WHAT TYPES OF CALLS ARE NOT COVERED BY THE TCPA’S PROHIBITIONS AGAINST PRERECORDED ADVERTISING CALLS BY SPECIFIC COMPANIES ?
The TCPA’s company-specific opt out provisions apply to prerecorded “telephone solicitation” calls placed to residential telephone numbers unless the caller (or type of call) is exempt from this prohibition.
Calls that are not “solicitations” are not covered by the TCPA’s section which allows residential telephone users to instruct callers to no longer call them on a company specific basis nonetheless the national do not call list. (If the caller is using a prerecorded greeting or message to call a cell phone, the cell phone user would rely on the section of the TCPA which protects cell phones instead.)
The callers may place pre-recorded solicitation messages to residential landline phones where : (1) the phone subscriber has an existing business relationship with the caller; and (2) the phone subscriber has consented to receiving such calls. 2012 TCPA Order, Para. 18 (Feb. 15, 2012).
If the caller is dialing the customer’s wireless telephone using a prerecorded voice or an Automatic Telephone Dialing System (“ATDS”), the caller must obtain the wireless telephone user’s written consent. 2012 TCPA Order, Para. 20 (Feb. 15, 2012).
Even prerecorded calls to residential telephones are not covered by the company specific opt-out requests if the caller is exempt. The TCPA, 47 U.S.C. Section 227(a)4) excludes certain type of calls and callers from the definition of “telephone solicitation” :
“(A) to any person with that person’s prior express interest or permission;
(B) to any person with whom the caller has an established business relationship; or
(C) by a tax exempt nonprofit organization”.
47 U.S.C. Section 227(a)(4) (2017). This article will discuss the impact of the “prior express interest” and “established business relationship” exceptions below. It is important to remember that a tax exempt nonprofit organization can call residential phones utilizing prerecorded messages to advertise property, goods, or services and not violate the telemarketing provisions governing company specific opt-out requests or the national do not call list.
When Congress passed the TCPA, it authorized the FCC to exempt certain additional categories of calls from the company specific telemarketing provisions of the TCPA.
Section 227(b)(2)(B) authorizes the Federal Communications Commission (“FCC”) to promulgate limited exceptions to the general prohibitions (quoted above), including exemptions for :
 calls “that are not made for a commercial purpose” and
 calls for a commercial purpose that the FCC has determined will not adversely affect the privacy rights of the consumer and that do not transmit any unsolicited advertisement.
See 47 U.S.C. Section 227(b)(2)(B) (2017).
WHAT TYPES OF PRERECORDED CALLS TO LANDLINES ARE EXEMPT FROM THE TCPA’S PROTECTION OF LANDLINES ?
The F.C.C. formulated regulations which exempt prerecorded calls to residential phones the call:
 is made for emergency purposes;
 is not made for a commercial purpose;
 is made for a commercial purpose but does not include or introduce or constitute telemarketing; or
 Delivers a “health care” message made by, or on behalf of, a “covered entity” or “business associate,” as those terms are defined in the HIPPA Privacy Rule, 45 CFR 160.103.
See 47 C.F.R. Section 64.1200(a)(3). See also 1992 TCPA Order, 7 FCC Rcd 8773-74. To understand these statutory exemptions, it’s helpful to look at the FCC’s descriptive list of calls that the FCC has determined are exempt.
In 2012, the FCC added an exemption for prerecorded calls to residential numbers by “health care related entities” who are governed by the Health Insurance Portability and Accountability Act of 1996 (“HIPPA”). See 2012 TCPA Order, para 57 (Feb. 15, 2012) (`[W]e exempt from our consent identification, time-of-day, opt-out, and abandoned call requirements all prerecorded health care-related calls to residential lines that are subject to HIPPA.”)
Examples of prerecorded calls that are exempted from the TCPA’s prohibitions against prerecorded telemarketing calls to residential numbers provide examples of calls which are not “advertising” (i.e,, not intended to sell or promote property, goods, or services) include :
debt collection calls
airline notification calls
bank account fraud alerts
school and university notifications
research or survey calls wireless user notifications
so long as the calls do not contain telemarketing messages. See 47 C.F.R. Section 64.1200(a)(1). See also 47 U.S.C. Section 227(b)(1)(A). But, calls concerning the same types of purposes would require either written or oral consent if made to wireless consumers and other specified recipients. Id.
WHAT ARE TELEPHONE SOLICITATION CALLS ?
This article discusses a landline subscriber’s rights against callers that use prerecorded messages when calling to solicit. What is a telephone solicitation call? The TCPA defines “telephone solicitation” as :
“the initiation of a telephone call or message the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person’s prior express invitation or permission, (B) to any person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization.”
47 U.S.C. Section 227(a)(4) (2017) (emphasis added). The FCC has used its rule making authority to exempt some non-telemarketing calls from coverage under the TCPA.
As a result of the FCC’s regulations and orders promulgated under its rule making authority in the TCPA, not all calls made for commercial purposes are “telephone solicitations”. Unless a call is a “telephone solicitation”, it is not prohibited by the telemarketing section of the TCPA. Here are a couple of examples of how the courts have interpreted the FCC’s regulations governing prerecorded telemarketing calls to landlines.
“DUAL PURPOSE” CALLS
Some telemarketers have devised schemes where they use “dual purpose” calls to generate consumer interest before pitching the sale. For example, “If you
will take our survey, you have won a free cruise.” After the called party answers the perfunctionary survey, the caller discloses the “upgrades” and other charges required to enjoy the “free” cruise. Another example is, “Congratulations, you have won a vacation at our timeshare resort in beautiful Orlando Florida.” Sometime before you receive your room key, you are required to take a tour of the time share resort or submit to some other sales pitch. Such dual purpose calls are not exempt from the TCPA.
The FCC has ruled that, if the call, notwithstanding its free offer or other information, is intended to offer property, goods or services for sale either during the call, or in the future, that call is an advertisement. 20012 Omnibus Order, Paragraph 30. The FCC provided that examples “include calls from mortgage brokers to their clients notifying them of lower interest rates and calls from credit card companies offering overdraft protection.” 2003 TCPA Order, 18 FCC Rcd at 14098, para. 142.
Unless the call is by a tax exempt nonprofit, or a company that the called party has consented to receiving marketing calls from, such calls would violate the TCPA when the caller uses a prerecorded call even a call to a landline.
Mr. Petersen will be posting an article describing three cases where the parties vigorously disputed whether the telephone call was a “telephone solicitation”. The article will also discuss the FCC regulations and orders which attempt to draw the “bright lines” necessary for companies (and consumer attorneys) to determine whether the caller is complying with the TCPA. Subscribe to Mr. Petersen’s TCPA blog or add it to your newsreader.
WHAT IS CONSENT TO TELEMARKETING CALLS?
Effective with the 2012 TCPA Order, the FCC revised its telemarketing rules to require express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and landlines. So, even companies that a consumer that the company transacts business with can no longer call the consumer to telemarket unless the caller has express written consent. 2012 TCPA Order, para 2 (Feb. 15, 2012).
The FCC concluded that a :
“consumer’s written consent to receive telemarketing robocalls must be signed and be sufficient to show that the consumer : (1) received ‘clear and conspicuous disclosure’ of the consequences of providing the requested consent, i.e., that the consumer will receive future calls that deliver prerecorded messages by or on behalf of a specific seller; and (2) having received this information, agrees unambiguously to receive such calls at a telephone number the consumer designates.”
2012 TCPA Order, para. 33 (Feb. 15, 2012) (emphasis added). The FCC also requires sellers to obtain the called party’s permission “without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.” Id. The requirement that the consent “must be signed” includes electronic signatures which meet the requirements of the E-SIGN Act including permission obtained via an email, website form, text message, telephone keypress, or voice recording. 2012 TCPA Order, para 34 (Feb. 15, 2012).
Despite the liberal provisions for consent to occur, many companies — even large companies — often get this wrong. If you are receiving prerecorded telemarketing calls to your residential phone, Mr. Petersen invites you to call him for a free case evaluation.
WHAT ARE COMPANY SPECIFIC DO NOT CALL LISTS?
Each telemarketer is required to maintain their own “do not call list”. Besides accessing the National Do Not Call List so that their robodialers include all names added to the National Do Not Call List within the past thirty (30) days, telemarketers are required to add customers who request not to be called to the telemarketer’s list of people not to call. See 47 C.F.R. Section 64.1200(d)(3) (2107).
This company specific record — often referred to as the company specific do not call list — is is a powerful mechanism bolstered by FCC regulations to bolster its effectiveness :
“(3) Recording, disclosure of do-not-call requests. If a person or entity making a call for telemarketing purposes (or on whose behalf a call is made) receives a request from a residential subscriber not to receive calls from that person or entity, the person or entity must record the request and place the subscriber’s name, if provided, and telephone number on the do-not-call list at the time the request is made. Persons or entities making calls for telemarketing purposes (or on whose behalf such calls are made) must honor a residential subscriber’s do-not-call request within a reasonable time from the date such request is made. This period may not exceed thirty days from the date of such request. If such requests are recorded or maintained by a party other than the person or entity on whose behalf the telemarketing call is made, the person or entity on whose behalf the telemarketing call is made will be liable for any failures to honor the do-not-call request. A person or entity making a call for telemarketing purposes must obtain a consumer’s prior express permission to share or forward the consumer’s request not to be called to a party other than the person or entity on whose behalf a telemarketing call is made or an affiliated entity.”
47 .C.F.R. Section 54.1200(d(3) (2017). Telemarketers with the capability to honor company-specific do-not-call requests in less than thirty (30) days must do so. Second Reconsideration Order, Para 16 (Feb. 18, 2005).
TELEMARKETERS MUST PROVIDE OPT-OUT MECHANISMS
Fortunately, residential telephone subscribers can revoke their consent for a company for companies to call their residential phone(s) when the caller uses a prerecorded telemarketing messages.
The FCC has ruled that calls which are autodialed or prerecorded telemarketing calls must include :
“an interactive opt-our mechanism that is announced at the outset of the message and is available throughout the duration of the call. In addition, the opt-out mechanism , when invoked, must automatically add the consumer’s number to the seller’s do-not-call list and immediately disconnect the call. Where call could be answered by the consumer’s answering machine or voicemail service, the message must also include a toll-free number that enables the consumer to subsequently call back and connect directly to an autodialed opt-out mechanism.”
2012 TCPA Order, para 47 (Feb. 15, 2012). The FCC noted that the presence of an automated opt-out mechanism, by itself, does not change the status of a call that otherwise violates the FCC’s rules. In other words, telemarketers who provide the required opt-out mechanisms do not receive a “free pass” for any other violations of the TCPA.
HOW YOU CAN OPT-OUT OF TELEMARKETING CALLS FROM A SPECIFIC COMPANY
If a telemarketer complies with the FCC’s TCPA Order, the live call should include a number to press in order to opt out of their advertising calls. Telemarketers are also required to record do-not-call requests at the time the request is made, such as during a live solicitation call. 47. C.F.R. Section 64.1200(d)(3).
If the telemarketer leave a message, the message must include a toll free number that the recipient can call between 9:00 a.m. and 5:00 p.m. Monday through Friday to company specific opt-out requests.Second Reconsideration Order, Para 22 (Feb. 18, 2005); 2003 TCPA Order, 18 FCC Rcd at 14122, Para 180, no. 664.
If you receive a telemarketing message which does not contain the required opt out notification, the message violates the TCPA.
If you call the toll free number that the telemarketer provided and you continue to receive calls after 31 days after you made your opt-out request, you probably have a TCPA case. (In contrast, telemarketers are allowed one violations (“free bite”) per 365 day period and it requires at least two (2) calls in violation of the TCPA before a phone subscriber can sue under the TCPA.) Even after the second violation, the telephone user does not have standing to sue for the first call which violated the National Do Not Call List.
If you call the toll free number back in order to opt out of the company’s calling list and the line is dead or rings busy after a couple of tries, document your calls and save the message containing the opt out information. In my opinion, providing a number that never works is not providing an effective mechanism to opt out and, therefore, would violate the TCPA.
HOW LONG IS AN OPT-OUT REQUEST EFFECTIVE?
If a residential user instructs a telemarketer who calls add their number to the company’s internal do not call list, the telemarketer must honor the request for five (5) years. 47 C.F.R. Section 64.1200(d)(6) (2017); 2003 TCPA Order, Para 31 (July 3, 2003). Of course, the subscriber can renew their request(s) when the five year period expires.
The Federal Trade Commission will maintain a residential phone subscriber’s registration on the National Do Not Call List forever (without expiration) unless the phone subscriber removes their name or the telephone number is no longer assigned to that subscriber.
WANT THE CALLS TO STOP ? GET STARTED TODAY
Hopefully, the information in this article assures you that you that (subject to the exemptions described above) you do NOT have to continue to tolerate unwelcome prerecorded advertising calls which you are receiving on your residential telephone. Mr. Petersen looks forward to learning more about your potential case and discussing how he can help you enforce your rights.
To get started towards enjoying your privacy again, call or contact Don Petersen today.
CALL DONALD E. PETERSEN AT 407 – 648 – 9050
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