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.
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.
Established Business Relationship
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 Dialers and Pre-Recorded Messages
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.
Auto Dialer and ADRMP Regulations
The TCPA prohibits the use of ADRMPs to: (1) 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; (2) Guest/patient rooms of a hospital, convalescent or other health care facilities, retirement homes or similar establishments; (3) 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; (4) 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.
Auto Dialer and ADRMP Regulations - Cont.
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.
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. If the violation of the TCPA is found to have been willfully or knowingly made, the penalty is increased to $1,500 for each violation.
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