Interviewer: What is the Telephone Consumer Protection Act (TCPA)?
Andrew Campbell: It is a law passed in 1991. Not many people know about it, including lawyers and judges. I will give you a little background here just because it is interesting. Congress passed this law because legislators kept getting plenty of menus from local restaurants faxed to them.
As you can imagine, they have a lot of staffers and these staffers have to have lunch. With these numbers and demand, there is tremendous competition among DC restaurants for that business. So they would get all these faxed menu’s which was nice as far as choice goes but at the same time it cost them money in terms of toner, paper, time, etc.
With no law in place, the marketing costs are transferred to the victim. They are the victim precisely because they never authorized that faxed advertisements. In this case, they never asked for the menus, never requested them and never authorized them. Well, when something affects Congress in a way that harms the finances of the legislators they tend to act.
So that is what they did. The Telephone Consumer Protection Act regulates junk faxes, cold-calling type of faxed advertisements. It also regulates certain calls to residential landlines (wirelines) and certain calls to cell phones (wireless lines).
Interviewer: How are calls to residential land lines regulated?
Andrew Campbell: This does not apply, unfortunately, to business land lines. However, let me give you an example. If you are a telemarketer or if you are selling something via telephone, you have to follow the Telephone Consumer Protection Act.
You are not supposed to contact people unless they have given their prior express written consent to be called. You can call them manually but you cannot use prerecorded messages to call a residential land line, unless you have the prior express written consent of that person.
Interviewer: For example, does this apply to prerecorded calls about an auto warranty expiring?
Andrew Campbell: Yes, that is a prerecorded message. Prior written express consent is now required for all calls from telemarketers to residential land lines.
Interviewer: Is it legal when you get a call and a recording says, “Please hold while you are connected.” You sit on hold and then you are connected to a live person.
Andrew Campbell: The first question I have is: Is that call to a cell phone or a residential land line?
Interviewer: What happens in both cases?
Andrew Campbell: If it is to a cell phone and you (the receiver of the call) did not provide prior express consent, then that violates the law. If it is a telemarketer calling, they have to have prior express written consent to make the call. If it is a collection company calling you, they have to have prior express consent.
However, if you gave the original creditor your cell phone number, they can auto dial you. They can use what is called an ATDS, an automated telephone dialing system to call you. They can leave prerecorded messages. They can leave computer generated messages. So consent is key when it comes to creditors or debt collectors call cell phones or wireless phones.
Creditors and debt collectors can call wireliness residential landlines all they want to, unless that would violate other laws, like the Fair Debt Collection Practices Act. These acts do not violate the TCPA though.
In the residential landline context, telemarketers cannot call leaving prerecorded messages without prior express written consent. That call saying “please hold for an important message” is a prerecorded message in and of itself. That could certainly violate the law unless prior express written consent was obtained.