Sometimes, it’s great to get an unexpected update from your favorite company or nonprofit. But often, when companies reach out to you without your permission via phone call or text, including for debt collection purposes, it can more than just annoying... it can be illegal.
Don’t change your number yet; you can take steps to protect yourself from unwanted telemarketing, robo-calls (pre-recorded voice calls), and unauthorized debt collection calls. You can even take the callers to court and receive money damages for not respecting your wishes for peace and privacy.
We provide free assistance if you think your rights have been violated or you have questions regarding unwanted calls, texts, or emails. You can send us your request for help through our contact form and we will review your claims and let you know if we can provide assistance. Now let’s learn about the TCPA.
The Telephone Consumer Protection Act (TCPA) restricts a broad range of telephone communications between businesses and consumers in very specific ways. Although it’s incredibly nuanced(you can visit our in-depth compliance guide of best practices for businesses for even more depth), the two things worth knowing about the law are that
(1) many commercial calls and texts from companies are illegal unless you’ve consented to them, and
(2) many calls made to cell phones by automatic dialing systems or that use artificial or prerecorded telemarketing voice messages are illegal unless you’ve specifically consented to them
The Federal Communications Commission(FCC), the state attorney general and other state agencies take action against some illegal calls, but it’s easy to see that that hasn’t stopped these calls from happening.
You as an individual have power to enforce the TCPA either as an individual or through a “class action” lawsuit. Class actions from consumers who have been harassed by calls that violate the TCPA have cost companies tens of millions of dollars, and have become a significant deterrent to companies advertising in this way.
This guide will discuss
1. What is the TCPA and How Does It Protect You?
The TCPA sets the rules for when companies can contact consumers through phone calls, texts and faxes. The TCPA balances consumer privacy concerns with the convenience to some businesses of automatic telephone dialing systems (ATDS) and pre-recorded voice technology (i.e. tools that give telemarketers an increased ability to call or fax consumers). Virtually any phone call from a business to an individual, whether for marketing purposes or not, may open the door for businesses to face legal liability under the TCPA. Not only is the TCPA coverage broad, the Federal Communications Commission (FCC) continuously updates its regulations and rules to enforce the TCPA statute. The FCC also has construed the TCPA to cover communications by telephone outside of only calling, such as text messages.
The TCPA restricts how businesses, regardless of size, are allowed to contact consumers via telephone, text, or fax in numerous ways, including (but not limited to):
Restricting Calls to Mobile Phones: Requiring “prior express consent” to make calls to mobile phones using automated telephone dialing system (auto-dialers) or prerecorded voice;
Restricting Calls to Residential Phones: using auto-dialers or prerecorded voice without “prior express written consent” or appropriate disclosure language (emphasis not in original);
Restricting companies from sending unsolicited fax advertisements without prior express consent or an opt-out disclosure; and
Prohibiting telemarketing calls to residential consumers who opted out using the National Do-Not-Call Registry. Does not restrict political, non-profit, or survey calls.
The TCPA also requires businesses making commercial solicitation calls to residential lines to keep an internal Do Not Call Registry and respect consumers’ wishes to opt out. Rules they need to comply by differ based on the type of communication (telemarketing or not), depending on whether they’re making (1) calls to your mobile phone; (2) calls to your landline, or (3) fax advertisements to your fax machine. The TCPA also strictly regulates calls or texts coming from an auto-dialer as well as artificial or prerecorded voice calls. Keeping in mind what device businesses are contacting you through is important to understanding how the law protects that specific call or advertisement type.
Know your rights
Businesses should not
Call any residential telephone subscriber before the hour of 8 a.m. or after 9 p.m. (called party's local time);
Disconnect an unanswered telemarketing call before at least 15 seconds or four rings
Withhold or fail to identify who is calling
Ignore your request to opt out 31 days after the request was made
Call a residential telephone number on the national do-not-call registry
Call you in the guest room or patient room of a hospital, health care facility, elderly home; or any other similar establishment
What’s the Difference between Telemarketing and Non-Telemarketing Calls?
The practical difference between telemarketing and non-telemarketing calls can be unclear and are typically fact-specific. As a general matter, any call or message that involves or presents an advertisement, or urges the purchase or investment in property, goods or services, will be deemed telemarketing. Non-telemarketing calls are calls that are purely informational and have non-commercial messages.
When Can Businesses Legally Make Calls, Texts, or Faxes to your Mobile Phone, Landline, or Fax Machine?
Mobile Phones (i.e. Wireless Phones, Cellular or Cellphones, etc.)
Any time a business contacts you on your cellphone, they must have prior express consent (oral or written). However, to make calls or texts to your mobile specifically for telemarketing or commercial purposes, businesses must have your prior express written consent. This means the business must have had made a written agreement with you before making telemarketing calls. The agreement must be: (1) written, (2) signed by the consumer; (3) clearly authorizes the delivery of advertisements or telemarketing messages using an auto-dialer or an artificial or prerecorded voice, (4) contain your telephone or facsimile machine number(s) to which you authorize such advertisements or telemarketing messages to be delivered; and (5) have a clear and conspicuous disclosure informing you that you are not required to sign the agreement as a condition of purchasing any property, goods, or services. Also, for artificial or prerecorded calls, the caller must include identity and telephone number of business.
Residential Lines (i.e. Landlines)
Only telemarketing calls that use an artificial or pre-recorded voice, companies must have prior express written consent. For other calls, including auto-dialed and non-telemarketing calls, the company does not need consent to call you. However, they must respect the Do-Not-Call rules: meaning they need to maintain an internal do-not-call list and never call anyone for telemarketing purposes on the NDNCR without prior express written consent. Also, for artificial or prerecorded calls, they must include identity and telephone number of business as well as an automated, interactive mechanism to opt out. The opt-out mechanism must allow you to make a do-not-call request prior to terminating the call and include brief explanatory instructions on how to use such mechanism. (For example, telling you to press a certain number to opt out of receiving such calls from the business.) If you elect to opt-out using such mechanism, the mechanism must automatically record your number to the seller's do-not-call list and immediately terminate the call.
If the fax is unsolicited: The business is only allowed to send unsolicited fax advertisements if they have (1) an already established business relationship with you, (2) obtained the fax number voluntarily from you (either you gave it to them or you had put up your fax number advertised or publicized), (3) include a notice on the fax (including opt-out instructions), and (4) include identification information on the fax. Use the opt-out instructions on the fax to opt out of future fax advertisements as they must honor your request.
If the fax is solicited: The business must have (1) prior express consent (oral or written), (2) include a notice with the opt-out instructions, and (3) include identification information. Again, use the opt-out instructions on the fax to opt out of future fax advertisements as they must honor your request.
Consumer consent is a key affirmative defense under the TCPA, and by having a physical or digital record, you can protect yourself for any potential legal dilemmas.
2) What Should You do if You Receive Illegal Calls and Texts under the TCPA? How to Fight Back and Stop Spam Phone Calls, Texts, and Faxes
Document the violations before taking action
To be able to take legal action, you’ll need to carefully document the abuses of the TCPA.
1. Get your phone records and highlight the offending calls from businesses that called you without your consent.
2. Keep a log, in writing, of each of the calls you receive, making sure to record the time and date of the call, as well sa the caller's identity. Also summarize any conversations you had withthe caller.
3 Save all voice messages.
4. If you have revoked your consent to receive calls, keep a copy of the letter.
phone calls and texts even after you opted out and/or your phone number has been registered on the do-not-call lists.
(Remember: businesses are allowed a 30-day grace period for them to stop calling you; however, if they continue to pester you after 31 days on the phone numbers that you’ve opted out of such communication, you can do one or more of the following).
You May File a Complaint with the FCC
You have multiple options for filing a complaint with the FCC:
You can file a complaint online at https://consumercomplaints.fcc.gov;
You can inform them by phone: 1-888-CALL-FCC (1-888-225-5322); TTY: 1-888-TELL-FCC (1-888-835-5322) ; ASL: 1-844-432-2275; or
You can send your complaint by mail (please include your name, address, contact information and as much detail about your complaint as possible):
Federal Communications Commission
Consumer and Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th Street, S.W.
Washington, DC 20554
You May File a Complaint with the FTC
The FTC is a similar regulatory agency to FCC. Both agencies deal with telemarketing calls and scams, so you may file a complaint with both. Again, you have multiple options for filing a complaint:
You can file complaints online at https://www.ftccomplaintassistant.gov;
You can call the FTC toll-free at 1-877-382-4357; TTY: 1-866-653-4261; or
You can write your complaint to the following address:
Federal Trade Commission
600 Pennsylvania Ave., NW
Washington, DC 20580
You May File Complaints with State Authorities.
You can also file complaints with any of your state authorities or agencies, such as a local or state consumer protection office or the office of the state Attorney General. You can easily find the contact information for such agencies by searching online or checking your state government website or your local telephone directories.
The state Attorney General’s job is to respond to illegal activity and scams affecting consumers in the state, so every complaint makes it more likely that the government may investigate the situation, find the caller, and take future action.
You May Sue the Business or Company Violating the TCPA
Another option is for you to bring a private lawsuit against the violator in an appropriate court in your state. Through a private lawsuit, you may either recover the actual monetary loss that resulted from the TCPA violation or receive up to $500 in damages for each violation, whichever is greater. The court may triple the damages for each violation to $1500 if it finds that the defendant willingly or knowingly committed the violation. Filing a complaint with the FCC does not prevent you from also bringing a lawsuit in state court.
Some scam calls and texts may be harder to stop.
If a call/text isn’t com coming from a legitimate company or business (e.g. a mass scammer or spammer), it may be more difficult for government agencies to track such operations down compared to legitimate businesses. Thus, you should take steps to protect yourself and your phone after reporting such calls (instead of waiting for the authorities to shut these illegal operations down).
The following tips are recommended by the FCC:
For Illegal Calls.
You should ask your phone company if they offer robocall-blocking technology (and if they don’t, request that they do). You can also check at the following online FCC resource to see whether your network offers such call-blocking tools and how you can enable this technology at your number: https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts#call-blocking-resources. If you already use robocall-blocking technology, you can help the company and the government by letting them know what phones numbers should be blocked due to illegal spam and/or scam calls. You should also always tell undesired callers that you do not consent to the call and that you are recording the caller’s number and the date upon you made your do-not-call request – and if the caller does not honor your request, immediately let the FCC or FTC or whatever appropriate government know along with the information you’ve recorded.
For Illegal Texts.
You should never respond to unknown or unwanted texts from questionable sources. Most mobile phone providers will let you block the texting number by forwarding the unwanted texts to 7726 (or "SPAM"). Check with your provider to see if this option is available for you or if they have other similar procedures in place.
Keep in mind, some calls don’t need prior consent.
Tax-exempt non-profit organizations can make non-commercial calls without consent
Tax-exempt non-profit organizations (such as charities, political groups, surveys, etc.) are exempt from many of the consent requirements.
For non-telemarketing calls using an artificial or prerecorded voice, non-profits don’t need your consent to call you. They are also exempt from keeping an internal Do-Not-Call list, so telling them to not call you directly may not prevent future calls. They are likewise exempt from adhering to the National Do-Not-Call list, so adding your phone number to the national registry may not prevent calls from such organizations.
However, if a tax-exempt non-profit organization calls you for advertising or telemarketing purpose and uses an automated dialing system or an artificial or prerecorded voice to do so, they will still need your prior express consent (but that consent does not need to be written). While calls solely asking for donations may be allowed, calls where the non-profit is selling something or offering something of value in return for a donation may trigger a TCPA violation.
Calling for emergency purposes.
Any telephone call for emergency purposes is exempt from the TCPA rules. Calls will be considered for “emergency” purposes if the calls are made necessary in any situation affecting your health and safety. That said, the calls must not charge you to receive them, and you may say "stop" at any time to end the call.
Calling to deliver a “health care”message
A business call call you without your consent if it is delivering a “health care” message made by, or on behalf of, a “covered entity” or its “business associate.” That said, the calls must not charge you to receive them, and you may say "stop" at any time to end the call.
Here areThis section recommends some preemptive steps to protect your privacy and prevent telemarketing calls from happening in the first place, includinglike how to add your number on a company’s internal do-not-call lists.
Add Your Phone Number to The National Do-Not-Call Registry (NDNCR)
You should add private phone numbers (both cellphone and landlines)to the National Do Not Call Registry (NDNCR) any private phone number (regardless if it is for your cellphone andor on a landline) that you do not want receiving telemarketing calls. Remember that the Do-Not-Call registry will not stop political, non-profit, or survey calls.
Under the TCPA, businesses are not allowed to contact any phone numbers on the NDNCR for any telemarketing reasons. Telemarketers cannot call residential phones that are registered on the NDNCR unless the consumer gave express written consent. Also, telemarketers must stop calling numbers on the NDNCR list after 30 days from the date the consumer added his or her number to the registry.
Of course, listing yourself doesn’t necessarily stop every telemarketer from contacting you because unscrupulous scammers may simply ignore the list. That said, more reputable companies, because of the danger of a TCPA lawsuit, are likely to take the NDNCR seriously.
How to Add Your Number to National Do-Not-Call Registry
To add your number to this national Do-Not-Call list, either input your phone number online at www.donotcall.gov; or by calling toll-free (1-888-382-1222) from the phone number you wish to register.
You can register at any time since there’s no deadline for registering. Once registered, there’s no need to re-register a number: it will stay on the national Do-Not-Call list until you cancel your registration or discontinue service (registrations never passively expire; you must actively cancel or discontinue it yourself). If you do not remember if you submitted your phone number, you can check by visiting https://www.donotcall.gov/confirm/conf.aspx (if the link does not work, you can find the page by clicking Verify My Account on their homepage).
As stated above, the do-not-call rules require callers to stop telemarketing calls 30 days after you register a number.
Add your number to a company’s internal do-not-call lists
The TCPA also prohibits companies and telemarketers from calling you if you state that you “do not want to be called” directly to the company or during a telemarketing call. Note that debt collection calls have special rules, and typically you need to provide a written request to a debt collector to stop debt calls (Learn more and get sample letters from the FTC.
Businesses are not allowed to make any telemarketing calls unless they maintain an internal company-specific do-not-call list. Once you make a request, they must record your do-not-call request along with your phone number and honor your wishes within a reasonable time (no more than 30 days from the date of your request). Once you’re on their internal list, they must not call you at that phone number for at least 5 years.
Again, scammers won’t honor “do not call” requests because they’re already engaged in illegal activity, so they won’t care to follow the TCPA rules. That said, reputable companies and debt collectors generally will attempt to follow these rules and honor do-not-call requests.
For any telemarketing call, the seller or telemarketer must identify themselves by name, the business of whose behalf they are calling for, and the business’s contact information (including a phone number and address). Therefore, you are entitled to know who is calling you so you can opt-out as described above.
Use a call blocking program
Be cautious about who you provide your phone number and contact information to
Whenever a website does ask for such information, you may be able to opt out of contact by texts, but it may be via checking or unchecking a preselected box. Finally, you should research if the business has given itself the right to sell or share your information through its user policy or any other legal disclaimers.
Many companies, especially “free” apps, make money selling the contact information you submit on lists to marketing companies. Only download reputable apps and avoid giving an app permission to access your contact list/address book unless necessary.
If you think your rights have been violated or you have questions regarding unwanted calls, texts, or emails, you can send us your questions on our contact form and we will review your claims and let you know if we can provide assistance. Now let’s learn about the TCPA.