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