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Telephone Consumer Protection Act (TCPA) Basics

TCPA Quick Reference

Single Voicemail Enough to Violate Telephone Consumer Protection Act, 6th Circuit Rules (Claims Journal, Jun. 5, 2023) E

A single voicemail message left on a cellphone without permission is enough to allow an individual to proceed with a class-action lawsuit alleging violations of the Telephone Consumer Protection Act of 1991, a panel with the 6th Circuit Court of Appeals ruled on Thursday.

The appellate panel reversed a District Court ruling that found Matthew Dickson lacked standing to pursue a lawsuit against Direct Energy LP because he suffered no concrete harm.

Window to the Law: TPCA Update on Cell Phone Marketing (National Association of REALTORS®, May 3, 2021)

“Real estate professionals may more freely use their cell phones for marketing purposes without fear of violating the Telephone Consumer Protection Act based on a recent U.S. Supreme Court decision that offers clarity on TCPA limitations.”

The Telephone Consumer Protection Act (National Association of REALTORS®)

“The Telephone Consumer Protection Act ("TCPA") was signed into law by President Bush on December 20, 1991. The TCPA amended Title II of the Communications Act of 1934 by adding a new section (47 U.S.C. sec.227). While the TCPA acknowledges the legitimate business interests of telemarketers, it recognizes the privacy rights of telephone customers and states that the unrestricted use of telemarketing could be an intrusive invasion of privacy as well as a risk to public safety in some instances.”

The TCPA: Protection Against Robo Calls and Prerecorded Calls (NOLO, 2021)

Understand what constitutes a violation of the TCPA on cell phones and residential phone lines, how violations are documented, and potential damages that may apply for violations.

Telemarketing vs. Informational Calls and Text Messages

Eleventh Circuit Holds that One Unsolicited Text Message is Sufficient Injury (Dentons, Jul. 31, 2023)

Uprooting much of the court’s precedent in Telephone Consumer Protection Act (“TCPA”) class actions, the Eleventh Circuit sitting en banc unanimously held that a plaintiff who receives one unwanted, automated telemarketing text message has standing to sue under the TCPA because they have suffered a concrete injury. This injury reflects an intrusion into the peace and quiet in a realm that is private and personal.

Stop Unwanted Robocalls and Texts (Federal Communications Commission, Jul.7, 2023)

Market research or polling calls to home wireline numbers are not restricted by FCC rules, nor are calls on behalf of tax-exempt non-profit groups. Informational messages such as school closings or flight information to your home phone are permissible without prior consent. The rules do require all prerecorded calls, including market research or polling calls, to identify the caller at the beginning of the message and include a contact phone number.

FCC Adopts Its First Rules Focused on Scam Texting (Federal Communications Commission, Mar. 16, 2023)

The Report and Order adopted today requires blocking of text messages that appear to come from phone numbers that are unlikely to transmit text messages. This includes invalid, unallocated, or unused numbers. It also includes numbers that the subscriber to the number has self-identified as never sending text messages, and numbers that government agencies and other well-known entities identify as not used for texting.

Obtaining Consent

FTC Launches Massive “Operation Stop Scam Calls” Initiative: Focusing on “Consent Farm” Lead Generators and Robocallers (JD Supra, Jul. 20, 2023)

As part of the effort, the FTC has filed five new cases against companies and individuals allegedly responsible for distributing or assisting in the distribution of illegal telemarketing calls across the nation.

FCC Turns to its TCPA Consent Rules: Time for a Checkup? (Nelson Mullins, Jul. 20, 2023)

Senders should review their revocation of consent procedures and be ready to comply with any new FCC limitations. 

Compliance Refresher: What Is TCPA Consent? (Contact Center Compliance, Jun. 16, 2023)

To properly acquire express written consent, businesses should ensure that the consent is voluntary and not a condition of purchasing a product or service. They should also keep a record of the consent, including the time and date it was given, the phone number and name of the person who gave the consent, and the specific disclosures that were provided.

Hot Topics in Risk Management (National Association of REALTORS®, Feb. 4, 2019)

“Plaintiff lawyers have created a lucrative business model filing class action lawsuits alleging real estate companies have violated the Telephone Consumer Protection Act, or TCPA, by sending text messages without the recipient’s consent. The TCPA requires prior express written consent before using autodialing equipment to send telemarketing messages to wireless numbers.”

Established Business Relationship Exception (National Association of REALTORS®)

“There are three requirements that apply to sending unsolicited advertising faxes: (1) The sender must have an "established business relationship" with the recipient; (2) The sender must have obtained the customer's fax number through methods described in the legislation; and (3) The sender must provide an opt-out mechanism that meets the Act's requirements.”

Complying With the Do Not Call Registry

Window to the Law: Comply With The Do Not Call Registry (National Association of REALTORS®, Jul. 1, 2019)

Learn how to ensure your phone call marketing plans comply the TCPA’s do-not-call registry restrictions.

National Do Not Call Registry (Consumers)

Consumers may register their phone numbers and report violations.

National Do Not Call Registry (Sellers and Telemarketers)

Businesses may register for access and pay applicable subscription fees.

FAQ: Do-Not-Call Registry (National Association of REALTORS®)

Real estate professionals must comply with the Do Not Call Registry for any cold calling activities. It is important to be aware of any state lists in addition to federal, check the Registry every 31 days, and understand any exemptions that may apply.

Safe Harbor Provision (National Association of REALTORS®)

The safe harbor provision can help protect businesses from lawsuits on Do Not Call Registry violations. In order for safe harbor to apply, a business must show that it has a written plan for complying with the registry, train personnel on the Rules, and maintain a list of telephone numbers that the business can not contract.

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