The Telephone Consumer Protection Act (TCPA) of 1991

The Telephone Consumer Protection Act of 1991 was signed into law by President George H.W. Bush. This law was a direct result of the massive increase in unsolicited telemarketing calls which were invading our homes. (Some more information at Wikipedia.) In general, purpose of the TCPA was to identify what exactly constituted telemarketing calls, define the scope of accepted practices and to define the means through which those who violated the TCPA would be punished. Unlike the CAN-SPAM (a total misnomer if I have ever heard one), the TCPA provided a viable (and simple) means to punish those who violate its provisions.

General Provisions of the TCPA

• Companies which make telemarketing calls must not call residences before the hour of 8:00 AM or after 9:00 PM.
• When calling, telemarketers must provide their company name, the name of the entity for whom they are calling and a telephone number and address for their comapny and the entity for whom they are calling (if such are different).
• The company doing the telemarketing MUST MAINTAIN a written Do Not Call Policy. They MUST provide this written Do Not Call Policy upon demand.
• The company must maintain a Do Not Call List. Upon request (written or verbal), the company MUST immediately place an individual on their Do Not Call List. Such requests must be honored for five years.
• Telemarketing calls cannot be made with the use of artifical voices or recordings (note that this is not the case with debt-collection calls).
• Those who are "damaged" by the calls (i.e. the recipients of the calls) are entitled to damages of from $500 to $1500 PER VIOLATION or actual monetary damages - whichever is higher. Despite the fact that the TCPA is a federal law, these damages can be sought in a state court - more importantly they are perfectly suited for your local Small Claims Court - a venue that is decidedly more appropriate for those who want to handle a case in pro per and/or minimize attorney's fees.

There are various other provisions to the TCPA (e.g. governing calls to businesses, the receipt of junk faxes, etc.), but for the time being I shall concentrate on the low-hanging fruit: the bloody telemarketers who call you at dinner time or while you are watching Lost and refuse to take no for an answer. Click here to view the statute at the Government Printing Office. (Amazingly, the statute is pretty straight-forward - for once it appears that Congress did something right.)

National Do Not Call Registry

Much is made of the National Do Not Call Registry established by the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) as a revision to its rules implementing the Telephone Consumer Protection Act (TCPA) of 1991.

Although I personally urge everybody to register their telephone numbers in the National Do Not Call Registry, it shall not stop all the calls. Even if you register your telephone number(s) in the Do Not Call Registry, the following calls are permitted:

1. Calls from political entities (e.g. those bloody annoying "Vote for Jones" calls you get before Election Day)
2. Calls from bona fide charities
3. Calls from telephone surveyors (e.g. Zogby Polls)
4. Calls from companies with which you have an existing business relationship
5. Calls from companies for which you have given express written permission (e.g. that sweepstakes entry form that you filled out)

Just because you have listed your number in the National Do Not Call registry, do not think for a minute that it is going to do you a lot of good. The large call centers which make millions of calls a month will most likely comply with the applicable FCC regulations, but the small firms (if they even know to check it) understand that they can get away with making calls and nobody is going to file enforcement actions against them that will be followed up. Consider the following (real-world) scenario:

You have listed your telephone numbers with the National Do Not Call Registry. You happen to own a home with a mortgage. Bingo! Get ready to be slammed with calls. Escrow companies (desperate to generate revenue in the current somewhat slow housing market) will bundle up information about your home and your mortgage and sell it to small mortgage firms. I personally experienced this in a complete nightmare scenario. I literally received over a hundred telemarketing calls from small mortgage firms. I had no prior business relationship with them or the escrow company which (in my mind) fraudulently sold them my information for $30 a pop. The problem is that if a company violates the provisions of the Do Not Call Registry, you have no private right-of-action. The only entities which can go after these firms are government entities. (UPDATE: must state that I have received some conflicting information on this point, but have not been able to dig for the practical details yet.) As most people do not complain to the applicable government entities, these smaller firms continue to make calls even though they know that they are (potentially) facing fines of $11,000 per call. For what it is worth, I do recommend filing a complaint, but do not expect anything to happen as a result. There is a lot more information about the Do Not Call Registry which I recommend that you get right from the horse's mouth.

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