Telephone Consumer Protection Act of 1991

The Telephone Consumer Protection Act of 1991 (TCPA) was passed by the United States Congress in 1991 and signed into law by President George H. W. Bush as Public Law 102-243. It amended the Communications Act of 1934. The TCPA is codified as 47 U.S.C. 227. The TCPA restricts telephone solicitations (i.e., telemarketing) and the use of automated telephone equipment. The TCPA limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages, and fax machines. 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.

General provisions

Unless the recipient has given prior express consent, the TCPA and Federal 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, the Federal Trade Commission — not the FCC and not the agency entrusted with the TCPA — 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, the National Do Not Call Registry received Congressional ratification in the speedy enactment of Do-Not-Call Implementation Act.

The CAN-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 the Junk Fax Prevention Act of 2005.

Unusual statutory provision

Though the TCPA is a federal statute, suits brought by consumers against violators are frequently filed in state courts.[8] The TCPA is unusual in that the language creating a private right of action led to conflicting views on whether the federal courts had federal question subject 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. …"[9] Prior to January 2012, there was a circuit split among the federal appeals courts on the issue of whether federal courts have federal question, diversity jurisdiction (individually or under the Class Action Fairness Act of 2005), or whether the state courts have exclusive jurisdiction.[10] In 2012, the Supreme Court decided Mims 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.” [11]

Major court cases

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) and Destination Ventures Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995) effectively settled this issue finding the restrictions in the TCPA were constitutional.

The United States Supreme Court resolved a significant circuit split to decide that federal courts have federal question subject matter jurisdiction in Mims v. Arrow Financial Services, LLC, __ US __, 132 S. Ct. 740, 181 L. Ed. 2d 881 (Jan. 18, 2012), resolving a circuit split.[12]

The Ninth Circuit held that the TCPA applies to unsolicited cellular telephone text messages advertising the commercial availability of goods or services as "calls" made in violation of the act.

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 the United 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.[13] 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 of 2013. [14]

See also

References

  1. ↑ 47 U.S.C. § 227; 47 C.F.R. § 64.1200
  2. ↑ 47 U.S.C. § 227(B); FCC Regulations exempt non-solicitation calls.
  3. ↑ 47 U.S.C. § 227(b)(1)(A)
  4. ↑ 47 U.S.C. § 227(b)(3)(a),(b)
  5. ↑ 47 U.S.C. § 227(b)(3)
  6. ↑ 47 U.S.C. § 227(c)(3)
  7. ↑ 47 C.F.R. § 64.1200(e)(2)(vi) 1 October 1997 edition.
  8. ↑ Robert R. Biggerstaff, State Courts and the Telephone Consumer Protection Act of 1991: must States Opt-in? Can States Opt-out? 33 Conn. L. Rev. 407 (2001).
  9. ↑ Subsection 227(b)(3)
  10. ↑ Mims v. Arrow Financial Services, LLC, 421 Fed.Appx. 920, 921 (11th Cir. 2010); Murphy v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000) (federal courts lack federal-question jurisdiction over TCPA claims); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 519 (3rd Cir. 1998) (same); Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Servs., Ltd., 156 F.3d 432, 434 (2nd Cir. 1998) (same); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 514 (5th Cir. 1997) (same); International Science & Technology Inst. v. Inacom Communications, Inc., 106 F.3d 1146, 1158 (4th Cir. 1997) (same); Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463–465 (6th Cir. 2010) (federal courts have federal-question jurisdiction over TCPA actions), Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447 (7th Cir. 2005) (same)
  11. ↑ 132 S. Ct. 740, 742 (2012)
  12. ↑ http://www.supremecourt.gov/opinions/11pdf/10-1195.pdf
  13. ↑ Dale, Margaret A (19 August 2014). "Capital One to Pay Largest TCPA Settlement on Record". The National Law Review (Proskauer Rose LLP). ISSN 2161-3362. Retrieved 23 August 2014.
  14. ↑ Slawe, Meredith C.; Madway, Brynne S. (11 August 2014). "Capital One Agrees to $75 Million Telephone Consumer Protection Act (TCPA) Settlement". The National Law Review (Drinker Biddle & Reath). Retrieved 23 August 2014.

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