The TCPA, was enacted in 1991 to control the ways that telemarketers can solicit consumers. The act also aimed to protect the right of privacy of consumers by creating a Do-Not-Call List. To provide strength to the act, violators can be fined for each violation. Violations create a private right in the consumer to hold the caller responsible. The TCPA applies to automated dialing and to pre-recorded voice and text messages to:
- Cell phones or smart phones
- Residential telephones
- Fax machines.
What Constitutes a Violation of the TCPA?
The following types of calls and text messages are prohibited by the TCPA:
- Automated calls. The act prohibits telemarketers from making automated calls, also known as robo-calls. These calls are driven by computer technology. The computer essentially runs through a list of phone numbers and calls the consumer with little or no human involvement.
- Pre-recorded messages. Calls that use pre-recorded messages or artificial voices are not allowed. The callee must be able to speak to a human directly.
- Calls to people whose phone number is in the Do-Not-Call Registry. The TCPA, through the Federal Trade Commission, created a Do-Not-Call List because many people were being harassed to the point of getting solicitations several times a day or night. Consumers can stop all solicitations by placing their cell phone number and residential phone number on a Do-Not-Call Registry.
- Calls during specific evening hours. Even when telemarketers have authority to make the call, it must be between 8:00 am and 9:00pm. Any solicitations during night-time hours (9:00 pm through 8:00 am) are not allowed.
- Unidentified calls. All telemarketers must identify themselves by giving their name, the name of the business they’re calling for, and a phone number or address where the caller or the caller’s business can be contacted. The phone number given cannot result in long-distance or excess phone charges.
Exceptions to the TCPA
There are some instances where telemarketers can make autodial and pre-recorded solicitations. If the consumer gave consent to the call, then the call may be allowed. Consent may be inferred if, for example, the consumer gave his/her phone number on a credit application. Consent can be revoked at any time.
Prior to 2013, there was an exception which meant that telemarketers could call consumers if there was a “business relationship” between the consumer and the telemarketer. As of 2013, written consent is required for solicitations to wireless phone numbers and the business exemption was removed. Exceptions do apply if the caller is a tax-exempt nonprofit and if the call is a health related message.
Ways Consumers Can Prove a TCPA Violation
Many telemarketers will just try to deny they made the improper call. There are a few things the consumer can do to help verify that a violation of the TCPA happened:
- Keep a record of every improper call. This can be by marking off the improper calls when the consumer gets his/her phone bill or saving the message on their phone.
- Consumers can also keep a log of the improper calls by noting on paper, the date and time of the call, who called, and detailing the message or conversation.
- Keep a copy of any writings sent to the telemarketer or debt collector telling the caller that they do not have your consent to call you.
Penalties for Violation
To make sure the violators stop calling you and others in violation of the TCPA, the law provides for fines for improper calls – according to the following schedule:
- Do-Not-Call violations. Up to $500 for each offense
- TCPA violations. Up to $500 for each violation
- Willful and Knowing violations. Up to $1,500 for each offense.
The fines apply to each and every violation. This means, for example, that 5 violations of the Do-Not-Call provisions of the TCPA can result in $2,500 in fines.
Contact Bell Law when telemarketers won’t leave you alone
If you are being solicited without your consent, you may have the right to financial compensation. To understand your rights, Call Bell Law at (816) 886-8206. We are ready to help hold obnoxious and aggressive telemarketers accountable.