Q AND A
- Does the Telephone Consumer Protection Act apply to intrastate
Does a recipient of an unsolicted fax advertisement have to
- Yes - “The TCPA applies not only to interstate but also to intrastate
telemarketing calls and faxes. To conclude otherwise would ignore the
statutes conforming amendment, its language with respect to local
calls, the FCC’s administrative interpretations, and the clear
legislative history.” State of Texas v American Blast Fax, Inc.,
No. A 00 CA 085 SS (W.D. Tex., Feb. 8, 2001)
Does a recipient of a prerecorded telephone solicitation to
residence have to opt-out?
- No - "Accordingly, recipients of unsolicited facsimile
are not required to ask that senders stop
such materials." Citation issued to 21st Century Fax(es) Ltd. 03/08/2000
Are hang up calls from telemarketers prohibited?
- No - "Relation to subsection (b) The provisions of this
subsection shall not be construed to permit a
prohibited by subsection (b) of this section." 47 USC 227 (c)(6)
Does a do not call request apply to the person called or the
telephone number called?
- Yes - "FCC rules require that companies identify
themselves to consumers and also that telemarkers maintain
"do-not-call" lists for people
who do not wish to receive telemarketing calls from a certain
company.The practice of predictive dialing, and the resulting abandoned
calls, often does
not allow consumer to identify the company calling and make a
do-not-call request under FCC rules." FCC Consumer Alert - Predictive
Dialing: The Silence
on the Other End of the Line
What about commercial free speech?
- The do-not-call request applies to the telephone number - "Our
in this instance--that a do-not-call request applies by number--is
based upon the same premise, and consistent with our overall policy
goals of the statute and the rules, to protect individuals from
unwanted telephone solicitations." In the Matter of Consumer.net v.
AT&T, 15 FCC Rcd. 281,
1999 WL 1256282 (F.C.C.) (Dec. 28, 1999)
Are survey calls exempt from the TCPA?
- "Nothing in the constitution compels us to listen to or view
any unwanted communication whatever its merit..." Rowan v. Post Office
397 U.S. 728 (1970)
- The provision in the Telephone Consumer Protection Act of 1991
automated, prerecorded calls to residences is content-neutral. Congress
demonstrated that such calls pose a threat to residential privacy. The
is narrowly tailored to advance that interest, and leaves open ample
channels of communication. Thus, it does not violate the First
Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 115 S. Ct.
(1995). (This case reversed Moser v. FCC, 826 F. Supp. 360 (D. Oregon
(United States Court of Appeals, Ninth Circuit. Argued and Submitted
31, 1994. Decided February 6, 1995.
- “[I]t is untenable that conduct such as vandalism is protected
the First Amendment merely because those engaged in such conduct intend
to express an idea.” In re Michael M., 86 Cal.App.4th 718, 729 (2001)
Texas v. Johnson, 491 U.S. 397, 404 (1989).
Are prerecorded telephone solicitations to answering machines and
mail regulated by the TCPA?
- No - H.R. Rep. No. 317, 102d Cong., 1st Sess. 1991, p. 13
“a call encouraging a purchase, rental or investment would fall within
definition [of telephone solicitation] . . . even though the caller
to taking a poll or conducting a survey”); S. Rep. No. 177, 102d Cong.,
Sess. 1991, p. 5 (same)
What about state laws?
- Yes - The Defendant asserts the Plaintiff gave permission to
the message when his answering machine answered the phone. The message
the Plaintiff’s answering machine invites callers to leave a message.
argument is without merit. The statute in question says it is unlawful
initiate such calls without the prior express permission of the called
This clearly means the permission must be granted prior to the
of the call. It does not matter what happens after the call is made or
it is received regarding the issue of permission. Ryan P. Agostinelli
LM Communications of South Carolina et al, No. 00-SC-86-2862, In the
Claims Court, County Of Charleston, South Carolina
will be dealt with accordingly!
- Moreover, the applicability of state law is not relevant to
of compliance with federal law here. Regardless of what state law does
does not require, US Notary had an independent obligation to comply
the TCPA and the Commission's associated rules. In the Matter of US
Inc., Forfeiture Order, FCC 01-301, October 3, 2001