Telephone Consumer Protection Act of 1991


The Telephone Consumer Protection Act of 1991 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 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 rules under the TCPA generally:
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." The FCC did not adopt a single national database but rather required each company to maintain its own do-not-call database. 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. In 2013, the Philadelphia Federal Appeals Court held that consent to receive calls from collectors, banks, or telemarketers to consumers’ cell phones may be revoked by the consumer.
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. 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. …" 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, or whether the state courts have exclusive jurisdiction. 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."

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 cert. denied, 515 U.S. 1161 and Destination Ventures Ltd. v. FCC, 46 F.3d 54 effectively settled this issue finding the restrictions in the TCPA were constitutional.
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 June 2007, a ruling was handed down in class action case Satterfield v. Simon & Schuster, No. C 06-2893 CW, 2007 U.S. Dist. LEXIS 46325, a case involving the transmission of SMS text messages promoting a popular author's "mobile club" to cellular phones, such as the one used by a seven-year-old child. The defendants, the publishing company that contracted for the transmission of the promotional messages and the service provider that actually sent the messages, argued that the named subscriber, the child's mother, had consented to the transmission of promotional messages when, to receive a free ringtone, she checked the box in an online form labeled "Yes! I would like to receive promotions from Nextones affiliates and brands…." Judge Claudia Wilken ruled that the SMS text messages are not covered by the TCPA, first, because the manner in which the SMS messages were sent does not fit the statutory definition of an "automatic telephone dialing system," and second, because the plaintiff had agreed to receive promotional messages under a broadly worded consent provision, executed in connection with the download of a free ringtone.
The Ninth Circuit Court of Appeals reversed and reinstated the potentially 90 million dollar lawsuit against publishing giant Simon & Schuster. A settlement was finally approved by Judge Claudia Wilken on August 6, 2010, which would pay out $175 to each class member who files a claim.
In April 2005 a class action lawsuit against Jamster! was filed. The lawsuit alleges that Jamster! scammed cellular telephone customers through the use of fraudulent and deceptive advertisements. The plaintiffs argue that the ads in question offered one free ring tone to cell phone customers who responded to the ad via text message, but failed to inform users that they would be subscribed to a monthly service. The lawsuit was combined with four others and settled in November 2009.
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. 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 2013.
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, 565 US 368, 132 S. Ct. 740, 181 L. Ed. 2d 881.
In 2015, Congress added an exemption to § 227 to allow for robocalls related to federally-owed debt collection. This resulted in the Supreme Court case Barr v. American Assn. of Political Consultants, Inc., 591 U.S. ___, which ruled this created a content-based restriction on free speech that failed strict scrutiny, and invalidated the exemption but leaving the rest of the statue in place due to severability.

Law review articles