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| Long title | A bill to amend the Communications Act of 1934 to prohibit certain practices involving the use of telephone equipment for advertising and solicitation purposes. |
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| Enacted by | the102nd United States Congress |
| Citations | |
| Public law | Pub. L. 102–243 |
| Codification | |
| Acts amended | Communications Act of 1934 |
| U.S.C. sections created | 47 U.S.C. § 227 |
| U.S.C. sections amended | 47 U.S.C. § 201 |
| Legislative history | |
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| United States Supreme Court cases | |
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TheTelephone Consumer Protection Act of 1991 (TCPA) was passed by theUnited States Congress in 1991 and signed into law by PresidentGeorge H. W. Bush as Public Law 102-243. It amended theCommunications Act of 1934. The TCPA is codified as47 U.S.C. § 227. The TCPA restricts telephone solicitations (i.e.,telemarketing) and the use of automated telephone equipment. The TCPA limits companies or debt collectors from calling clients or prospective customers usingautomatic dialing systems, artificial or prerecorded voice messages,SMS text messages, andfax machines.[citation needed] It also specifies several technical requirements for fax machines, autodialers, and voice messaging systems—principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.[citation needed]
Unless the recipient has given prior express consent, the TCPA andFederal Communications Commission (FCC) rules under the TCPA generally:[1]
When Congress passed the TCPA in 1991, it delegated the do-not-call rules to the FCC. Congress suggested that the FCC's do-not-call regulations "may require the establishment and operation of a single national database."[6] The FCC did not adopt a single national database but rather required each company to maintain its own do-not-call database.[7] The FCC's initial do-not-call list regulations were ineffective at proactively stopping unsolicited calls because the consumer had to make a do-not-call request for each telemarketer. In 2003, even though the FCC was the agency entrusted with the TCPA, it was the Federal Trade Commission that established the National Do Not Call Registry and implemented regulations prohibiting commercial telemarketers from making unsolicited sales calls to persons who did not wish to receive them. After being challenged in court by the telemarketing industry,[citation needed] the National Do Not Call Registry received Congressional ratification in the speedy enactment of Do-Not-Call Implementation Act. In 2013, the Philadelphia Federal Appeals Court held that consent to receive calls from collectors, banks, or telemarketers to consumers' cell phones may be revoked by the consumer.[8]
TheCAN-SPAM Act made a minor amendment to the TCPA to explicitly apply the TCPA to calls and faxes originating from outside the U.S.
The portions of the TCPA related to unsolicited advertising faxes were amended by theJunk Fax Prevention Act of 2005.
In February 2024, the FCC issued a Declaratory Ruling thatspeech synthesis viagenerative audio (deepfakes) is considered an "artificial" voice for the purposes of the TCPA.[9][10]
Though the TCPA is afederal statute, suits brought by consumers against violators are frequently filed in state courts.[11] The TCPA is unusual in that the language creating aprivate right of action led to conflicting views on whether the federal courts hadfederal questionsubject matter jurisdiction. The TCPA provides in relevant part: "A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State. ..."[5] Prior to January 2012, there was acircuit split among thefederal appeals courts on the issue of whether federal courts havefederal question, diversity jurisdiction (individually or under theClass Action Fairness Act of 2005), or whether the state courts have exclusive jurisdiction.[12] In 2012, the Supreme Court decidedMims v. Arrow Fin. Servs., LLC, which resolved the circuit split by concluding that "The TCPA's permissive grant of jurisdiction to state courts does not deprive the U.S. district courts of federal-question jurisdiction over private TCPA suits."[13]
The TCPA's constitutionality was challenged by telemarketers soon after it was enacted. Two cases,Moser v. FCC, 46 F.3d 970 (9th Cir. 1995) cert. denied, 515 U.S. 1161 (1995) andDestination Ventures Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995) effectively settled this issue finding the restrictions in the TCPA were constitutional.
TheNinth Circuit held that the TCPA applies to unsolicitedcellular telephonetext messages advertising the commercial availability of goods or services as "calls" made in violation of the act: In June 2007, a ruling (later overturned) was handed down inclass action case Satterfield v. Simon & Schuster, No. C 06-2893 CW, 2007 U.S. Dist. LEXIS 46325 (N.D. Cal. June 26, 2007), a case involving the transmission of SMS text messages promoting a popular author's "mobile club" to cellular phones, the service provider that actually sent the messages. The defendants, potentially 90 million dollar lawsuit against publishing giant Simon & Schuster, argued that the named subscriber, the child's mother, had consented to the transmission of promotional messages when, to receive a free ringtone, she checked the box in an online form labeled "Yes! I would like to receive promotions from Nextones affiliates and brands...." Judge Claudia Wilken ruled that the SMS text messages are not covered by the TCPA, first, because the manner in which the SMS messages were sent does not fit the statutory definition of an "automatic telephone dialing system," and second, because the plaintiff had agreed to receive promotional messages under a broadly worded consent provision, executed in connection with the download of a free ringtone.The Ninth Circuit Court of Appeals reversed and reinstated the potentially 90 million dollar lawsuit against publishing giant Simon & Schuster. A settlement was finally approved by Judge Claudia Wilken on August 6, 2010, which would pay out $175 to each class member who files a claim.[14][15]
In April 2005 a class action lawsuit againstJamster! was filed.[16] The lawsuit alleges that Jamster! scammed cellular telephone customers through the use of fraudulent and deceptive advertisements. The plaintiffs argue that the ads in question offered one free ring tone to cell phone customers who responded to the ad via text message, but failed to inform users that they would be subscribed to a monthly service.[17] The lawsuit was combined with four others and settled in November 2009.[18][19]
In August 2014,Capital One Financial Corp., AllianceOne Receivables Management Inc., Leading Edge Recovery Solutions, LLC and Capital Management Services, L.P. entered into an agreement to pay $75.5 million to end a consolidated class action lawsuit pending in theUnited States District Court for the Northern District of Illinois alleging that the companies used an automated dialer to call customers' cellphones without consent. This is the largest proposed cash settlement under the TCPA to date.[20] It is notable that this legal action involved informational telephone calls, which are not subject to the "prior express written consent" requirements which have been in place for telemarketing calls since October 2013.[21]
The United States Supreme Court resolved a significant circuit split to decide that federal courts havefederal questionsubject matter jurisdiction inMims v. Arrow Financial Services, LLC, 565 US 368, 132 S. Ct. 740, 181 L. Ed. 2d 881 (2012).[13]
In 2015,Congress added an exemption to § 227(b)(1)(A)(iii) to allow for robocalls related to federally-owed debt collection. This resulted in the Supreme Court caseBarr v. American Assn. of Political Consultants, Inc., 591 U.S. ___ (2020), which ruled this created a content-based restriction on free speech that failedstrict scrutiny, and invalidated the exemption but leaving the rest of the statute in place due to severability.[22]
In January 2017, theNinth Circuit Court of Appeals found two text messages were enough to obtain Article III standing.[23][24]
In August 2019, the11th Circuit Court of Appeals found a single text message was not enough to obtainArticle III standing under TCPA.[25][26]
In July 2020, the US Supreme Court found the "government-debt" exception to the TCPA was unconstitutional. The "government-debt" exception was added as an amendment to the TCPA in 2015. The case,Barr v. American Assn. of Political Consultants, Inc., was brought by political groups that desired to use robocalls for political ads. The court found the TCPA did unconstitutionally favor debt collection speech over political speech and violated the First Amendment.[27][28]
In July 2020, theSouthern District of Texas found a single text message was enough to obtain Article III standing.[23][29]
In September 2020, theEastern District of Texas found a single missed call using alocalized number was enough trigger Article III standing under TCPA. The court reasoned, "At issue in this case is a missed call, not a single, unsolicited text message. It only takes one glance at a text message to recognize it is for an extended warranty for a car you have never owned or a cruise you have won from a raffle you never entered. A missed call with a familiar area code, on the other hand, is more difficult to immediately dismiss as an automated message."[30][31]
In October 2020, theNorthern District of Ohio found the TCPA was unconstitutional from 2015 through 2020 due to the "government-debt" exception, which exempted calls made to collect a debt owed or guaranteed by the United States. The defective provision wassevered from the TCPA in 2020. The Ohio court reasoned the severance did not apply retroactively, so the court lacked jurisdiction over all claims from 2015 through 2020.[32][33]
In December 2020, theDistrict Court for the Southern District of Ohio found that a consumer can revoke consent to be contacted by the holder of a debt, and a third party debt collector calling on behalf of the holder can be held liable for TCPA violations even if the revoked consent was not communicated to the third party debt collector. Specifically the court found "[a] third party debt collection agency is liable for autodialed calls under the TCPA when the consumer has revoked his prior express consent to be called, even when that revocation has not been communicated to the debt collector or the debt collector otherwise fails to confirm the consumer has consented to calls."[34][35]
Andrew Perrong, a Philadelphia attorney, has filed at least 45 TCPA lawsuits against a wide variety of businesses, ranging from chimney sweeps and collection agencies to large businesses likeVerizon andCitibank. Perrong has demanded tens of thousands of dollars in some cases, and most of his suits are settled quickly. It is unknown how much money Perrong has made from his settlements. His first settlement occurred in 2015 while a senior atLa Salle College High School.[36]
In the Supreme Court decisionFacebook v. Duguid (2021), the Court established that for a device to qualify as an "automatic telephone dialing system", it must be based on the capacity to store or produce numbers from a random or sequential generator. The case ruled that an automatic system that may phone a user from a stored number but otherwise not generated in a random or sequential way (such as fortwo-factor authentication) does not meet this definition under the TCPA.[37]
Since 2015, the FCC has ordered violators of the TCPA to pay $208.4 million. The sum includes forfeiture orders in cases involving robocalling, Do Not Call Registry and telephone solicitation violations. According to records obtained by theWall Street Journal in 2019, the government had collected $6,790 of that amount.[38]
In March 2021 the FCC issued a fine of $225 million against the Texas-based telemarketers John C. Spiller and Jakob A. Mears, after they made approximately one billion robocalls to people across the country. The pair used business names including Rising Eagle and JSquared Telecom, were responsible for the calls. One of the people involved in the scheme admitted to making "millions" of robocalls per day, even going so far as to go out of his way to call numbers on the Do Not Call list because he believed it would be more profitable to do so.[39]
On June 6, 2023, the FCC imposed a $5,134,500 fine againstJack Burkman andJacob Wohl, who had used robocalls inswing states to commitvoter intimidation during the2020 United States presidential election. New York District JudgeVictor Marrero accused them of specifically targeting areas with largeAfrican American populations.[40][41] The fine was the largest to have ever been imposed under the TCPA.[42][43]
Law review articles