Telemarketing and the Telephone Consumer Protection Act (TCPA)

• Introduction |
• Telemarketing Law and Practices |
• What you Can Do to Reduce Telemarketing Calls |
• Resources |

Top News

• EPIC Joins Coalition Urging FCC Not to Permit Unfettered Ringless Voicemails:

  EPIC has joined a coalition of consumer groups led by the National Consumer Law Center to urge the FCC to reject a proposal that would make it legal for callers to drop voicemails directly into people's phones without their consent. The groups explained that allowing such “ringless voicemail” would clog consumers’ voicemail boxes with spam, scams, and debt collection notices. More than 90,000 consumers signed a petition urging the FCC to reject the proposal, and thousands of others, including small businesses and medical professionals, have filed comments with the FCC registering their concern with the harms presented by ringless voicemail. EPIC routinely participates in regulatory and legislative processes concerning robocalls and files amicus briefs in robocall cases.

  (Oct. 5, 2021)
• EPIC & National Consumer Law Center Tell Court Not to Let Robocallers Off the Hook: EPIC and the National Consumer Law Center have filed an amicus brief in Lindenbaum v. Realgy, LLC, urging the Sixth Circuit to reject immunity for illegal robocalls made between 2015 and 2020. The case follows the Supreme Court’s decision in Barr v. American Association of Political Consultants, in which the Court held that an exception added in 2015 to the decades-old robocall restriction was unconstitutional and must be severed from the broad robocall ban. As defendant in a separate robocall suit, Realgy argued that the Supreme Court’s decision meant that the broad robocall ban was unenforceable for the period that the unconstitutional exception was in effect, from 2015-2020. The district court agreed and granted Realgy’s motion to dismiss. EPIC and NCLC filed an amicus brief arguing that granting robocallers immunity “would reward those who made tens of billions of unwanted robocalls and deprive consumers of any remedy for the incessant invasion of their privacy.” EPIC regularly files amicus briefs supporting consumers in illegal robocall cases. (Feb. 2, 2021)
More top news »
Supreme Court to Decide Scope of Robocall Ban » (Jul. 9, 2020)
Just days after upholding the federal robocall ban against a First Amendment challenge, the U.S. Supreme Court has agreed to decide the scope of the ban in a new case, Duguid v. Facebook. Following the D.C. Circuit’s invalidation of the FCC’s definition of an “autodialer”—the technology companies use to automatically dial vast numbers of consumers— federal appeals courts have split on how to interpret the term. Telemarketers argue that an autodialer must generate random or sequential numbers, while consumers and consumer groups like EPIC maintain that the law bans systems that automatically call numbers from lists. In Gadelhak v. AT&T, EPIC argued that adopting the telemarketers’ autodialer definition “would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete.” EPIC routinely files amicus briefs in cases on the Telephone Consumer Protection Act.
Supreme Court Hears Oral Argument in Robocall Ban Case » (May. 6, 2020)
Earlier today, the U.S. Supreme Court heard oral argument in Barr v. American Association of Political Consultants. The argument was livestreamed, with EPIC staff providing commentary on Twitter. The case asks whether an exemption to the Telephone Consumer Protection Act, a law that prohibits unwanted robocalls, is constitutional, and, if not, whether the exemption should be severed or the whole law struck down. EPIC defended the TCPA in an amicus brief. EPIC said that the robocall ban is "constitutionally permissible and serves important governmental interests." EPIC explained that cell phone adoption has made "the harm caused by unwanted automated calls" greater than when the robocall ban was enacted in 1991. EPIC said that "without the autodialer ban, the assault of unwanted calls could make cell phones unusable." EPIC also argued that "a minor amendment to an otherwise constitutional law, passed decades after the original enactment, should not take down an act of Congress." EPIC frequently files amicus briefs on the TCPA, including in the related case, Gallion v. Charter Communications.
EPIC, Consumer Groups Call for Review of Robocall Ruling » (Mar. 12, 2020)
EPIC joined the National Consumer Law Center and other consumer groups in an amicus brief supporting review of recent decision that limits consumer robocall protections. In Gadelhak v. AT&T Services, the Seventh Circuit concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision deepened a split among federal appeals courts over the scope of federal robocall protections. EPIC and NCLC also filed an amicus brief during the court's original consideration of the case. The EPIC brief explained that allowing telemarketers to auto-dial consumers "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
EPIC to Supreme Court: Robocall Ban is Constitutional » (Mar. 2, 2020)
In an amicus brief for the U.S. Supreme Court, EPIC today defended the Telephone Consumer Protection Act, a law that prohibits unwanted robocalls. EPIC said that the robocall ban is "constitutionally permissible and serves important governmental interests." EPIC explained in Barr v. American Association of Political Consultants that "the harm caused by unwanted automated calls" is more acute than when the robocall ban was enacted in 1991. EPIC said "without the autodialer ban, the assault of unwanted calls could make cell phones unusable." EPIC also argued that "a minor amendment to an otherwise constitutional law, passed decades after the original enactment, should not take down an act of Congress." Senator Markey, Representative Eshoo, and more than a dozen members of Congress also filed an amicus brief in support of the consumer privacy law. EPIC frequently files amicus briefs on the TCPA, including in the related case, Gallion v. Charter Communications.
Federal Appeals Court Rules Consumers Can Sue for Automated Texts—But Only If Calls Are Random » (Feb. 19, 2020)
The Seventh Circuit has concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision in Gadelhak v. AT&T Services deepens a split among federal appeals courts over the scope of federal robocall protections. EPIC and the National Consumer Law Center filed an amicus brief in the case, arguing that an autodialer need only dial numbers from a list, such as a customer contact database. EPIC and the NCLC explained that allowing telemarketers to robocall consumers from a list "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." The EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
Supreme Court to Review Constitutionality of Federal Robocall Ban » (Jan. 11, 2020)
The Supreme Court has aqreed to hear a challenge to the constitutionality of the Telephone Consumer Protection Act, a federal law that prohibits unwanted robocalls. The law generally restricts the use of autodialers, but in 2015 Congress created an exception for robocalls to collect debts guaranteed by the federal government. Several groups have since challenged the law on First Amendment grounds, arguing that the TCPA discriminates against particular speakers. The Court will now consider the issue in Barr v. American Association of Political Consultants. EPIC filed an amicus brief in Gallion v. Charter Communications, a related case, arguing that “these challenges represent a systematic effort by companies to undermine the purpose of the TCPA and to inundates consumers with unwanted calls.” EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
House Passes Bill to Combat Robocalls » (Jul. 25, 2019)
In a 429-3 vote, the House passed a bill to combat the onslaught of robocalls. The Stopping Bad Robocalls Act would increase the fines for illegal robocalls, require phone companies to block robocalls by default, require more businesses to obtain consumer consent before calling, and much more. The Act comes two months after the Senate passed a similar bill—the Traced Act—with near unanimous support. Many criticized the Senate's bill for not going far enough. EPIC joined a coalition of consumer groups that urged members of Congress to support the House bill. EPIC has long advocated for stronger regulations surrounding robocalls. EPIC provided expert analysis to Congress, submitted numerous comments, and filed multiple amicus briefs emphasizing the need to limit robocalls.
Ninth Circuit Strikes Down Debt-Collection Exception to Robocall Ban » (Jul. 9, 2019)
The Ninth Circuit has again found that the Telephone Consumer Protection Act limits the ability of government debt collectors to make robocalls. The law prohibits automated calls to cell phones, except in emergencies or with the consent of the called party. But in 2015 Congress created an exception for calls made to collect debts guaranteed by the federal government. In Duguid v. Facebook, the Ninth Circuit found that the exception violated the First Amendment because it preference debt collectors over other companies that could might use robocall technology. The outcome is favorable for consumer privacy. EPIC filed a "friend of the court" brief in Gallion v. Charter Communications, a similar case in the Ninth Circuit, arguing that "the TCPA prohibitions are needed now more than ever." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
EPIC, NCLC Urge Federal Appeals Court to Limit Robocalls » (Jul. 9, 2019)
EPIC and the National Consumer Law Center have filed an amicus brief in a case concerning the scope of the federal law, the Telephone Consumer Protection Act, that protects consumers against robocalls. In Gadelhak v. AT&T Services, EPIC and NCLC argued that list-based systems are included among the law's definition of "autodialers." To do otherwise, the brief explained, "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC and NCLC further explained that the "mass texting from a list, such as the system used by AT&T in this case, is precisely the type of technology the TCPA sought to restrict." The amici warned that a narrow interpretation of the law "would accelerate the rising levels of robocalls and texts." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.
Congress, FTC Take Action Against Robocallers » (Jun. 27, 2019)
A House subcommittee voted unanimously to advance a wide-ranging bill intended to crack down on robocalls. The Stopping Bad Robocalls Act (H.R. 3375) would enroll customers in free call-blocking programs and take more aggressive rulemaking steps to ensure people only get calls they ask to receive. The FTC also announced a partnership with state enforcers--"Operation Call it Quits"—to crack down on illegal robocalls. The initiative includes 94 actions targeting robocallers responsible for more than one billion calls. EPIC has worked to ensure that telephone users are protected from invasive business practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.
Supreme Court Sidesteps Merits in Junk Fax Case » (Jun. 20, 2019)
The Supreme Court today directed a lower court to reexamine PDR Network v. Carlton & Harris Chiropractic, a case which concerns a company's efforts to disregard an FCC rule about junk faxes. The Court told the Fourth Circuit to resolve "preliminary" questions about the legal effect of the FCC rule and the company's ability to challenge the rule through the agency process. EPIC filed an amicus brief in the case. EPIC explained that permitting companies to challenge FCC rules outside the process Congress established "will exclude the voices of consumers" in agency decision-making. EPIC also explained that the company's efforts to sidestep agency rules will benefit those "who have resources to attack FCC rules." EPIC and other consumer organizations routinely provide comments to federal agencies through the federal agency rule making process. EPIC also contributed to the development of the robocall and junk fax laws. EPIC has since worked to ensure that telephone users are protected from invasive business practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.
FCC Affirms Robocall Blocking By Default to Protect Consumers » (Jun. 7, 2019)
The FCC voted to confirm that voice service providers may aggressively block unwanted robocalls before they reach consumers. The Commission stated: "While many phone companies now offer their customers call blocking tools on an opt-in basis, the Declaratory Ruling clarifies that they can provide them as the default, thus allowing them to protect more consumers from unwanted robocalls and making it more cost-effective to implement call blocking programs." EPIC has long advocated for robust telephone privacy protections. Last week, EPIC submitted comments to the FCC recommending that the agency (1) require phone providers to proactively block calls from numbers that are unassigned, unallocated, or invalid; (2) prohibit spoofing if there is an intent to defraud or cause harm; and (3) encourage the use of call authentication technology that safeguards caller anonymity. EPIC filed amicus briefs earlier this year and in 2015 that strengthened consumer protections for robocalls.
Senate Passes Anti-Robocall Act 97-1 » (May. 23, 2019)
The Senate overwhelmingly passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, sponsored by Senator John Thune (R-S.D.) and Senator Ed Markey (D-Mass.). The Act would give regulators more time to find scammers, increases civil penalties, promotes call authentication and blocking techniques, and brings together federal agencies and state attorneys general to coordinate prosecution of robocallers. EPIC has long advocated for robust telephone privacy protections and regularly files amicus briefs and comments in support of stronger consumer protections against robocalls.
Appeals Court Strikes Down Debt Collector Exception to Robocall Ban » (Apr. 25, 2019)
A federal appeals court ruled today that an amendment to the federal robocall ban is unconstitutional. The Telephone Consumer Protection Act prohibits automated calls to cell phones, except in emergencies or with the consent of the called party. But in 2015 Congress created an exception for calls made to collect debts guaranteed by the federal government. The court in AAPC v. FCC found that the debt-collection exemption "undercuts" the privacy protections in the law. So the court found the exception unconstitutional and struck it from the law. EPIC filed a "friend of the court" brief in Gallion v. Charter Communications, a similar case in the Ninth Circuit, arguing that "the TCPA prohibitions are needed now more than ever." EPIC has testified in support of the TCPA and has submitted extensive comments and amicus briefs on the consumer privacy law.
Bill to Limit Robocalls Moves Forward in Senate » (Apr. 3, 2019)
The Senate Commerce Committee today approved a bill to strengthen the FCC's ability to prevent robocalls. The Telephone Robocall Abuse Criminal Enforcement and Deterrence or TRACED Act, enhances the FCC's authority to issue fines against robocallers, extends the statute of limitations, and promotes call authentication and blocking adoption. EPIC has long advocated for robust telephone privacy protections. Last week, EPIC submitted comments to the FCC recommending that the agency (1) require phone providers to block calls from numbers that are unassigned, unallocated, or invalid; (2) prohibit spoofing if there is an intent to defraud or cause harm; and (3) encourage the use of call authentication technology that safeguards caller anonymity. EPIC filed amicus briefs earlier this year and in 2015 that strengthened consumer protections for robocalls.
EPIC Urges Supreme Court to Preserve Public Voice in Robocall and Junk Fax Law » (Feb. 14, 2019)
EPIC has filed an amicus brief urging the Supreme Court to safeguard FCC rules that protect the public from robocalls and junk faxes. The case, PDR Network v. Carlton & Harris Chiropractic, concerns a company's efforts to disregard an FCC rule about junk faxes. EPIC explained that permitting companies to avoid FCC rules "will exclude the voices of consumers" in agency decision making. EPIC also explained that the company's efforts to sidestep agency rules will benefit those "who have resources to attack FCC rules." EPIC contributed to the development of the robocall and junk fax laws. EPIC has since worked to ensure that telephone users are protected from invasive practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.
EPIC Supports Constitutionality of "Robocall" Law » (Nov. 13, 2018)
EPIC has filed a "friend of the court" brief in a case concerning the constitutionality of the Telephone Consumer Protection Act, the law the prohibits unwanted "robocalls." In Gallion v. Charter Communications, EPIC argued that "the TCPA prohibitions are needed now more than ever," citing the intrusiveness of marketing calls directed toward cell phones. EPIC also said the TCPA "protects important consumer privacy interests." EPIC testified in support of the TCPA and has submitted extensive comments and amicus briefs on the consumer privacy law.
EPIC Advises FCC on Robocalls Regulation » (Jun. 29, 2018)
EPIC advised the FCC on how to interpret the Telephone Communications Protection Act to best protect consumers in light of the recent decision in ACA Int'l v. FCC. EPIC filed a friend of the court brief in that case arguing that consumers could revoke consent by any "reasonable means." The court agreed but vacated other aspects of the rule. Many industry groups urged the Commission to make a rule that if "any" human intervention is involved in the dialing or sorting of the list of numbers a calling system would not be considered an "automatic telephone dialing system." EPIC opposed that recommendation, explaining that such a definition would allow autodialers to use deceptive tactics to evade regulation. EPIC contributed to the development of the Telephone Communications Protection Act and regularly submits comments to the FCC.
EPIC Supports Additional Regulation of Robocalls » (Apr. 17, 2018)
In advance of a hearing on "Abusive Robocalls and How We Can Stop Them" EPIC recommended reforms that would combat fraud while protecting privacy. EPIC supports regulations that would (1) allow phone providers to proactively block numbers that are unassigned, unallocated, or invalid; (2) block invalid numbers without requiring consumer consent; (3) provide strong security measures for any database of blocked numbers; and (4) prohibit spoofing with the intent to defraud or cause harm. EPIC played a leading role in the creation of the Telephone Consumer Protection Act and continues to defend the Act.
D.C. Circuit Affirms "Consent" Protection in FCC Robocall Rule » (Mar. 16, 2018)
A federal appeals court ruled today in a closely watched case concerning robocalls. The rule under review in ACA International v. FCC concerned the FCC's regulations for the Telephone Consumer Protection Act. EPIC filed a friend of the court brief in the case in support of the FCC regulations. EPIC said that companies "seeking to engage in privacy-invading business practices" bear "the burden of proving consent." The court agreed that consumers could withdraw consent by all "reasonable means." However, the court vacated other aspects of the rule, including the definition of automated telephone dialing system and proposed procedures for calls to reassigned numbers.
EPIC Urges the FCC To Take Steps To Eliminate Robocalls » (Jun. 30, 2017)
In comments to the FCC, EPIC has proposed that telephone service providers take steps to block unlawful robocalls. The FCC is considering a new rule that would allow phone companies to block calls from numbers they know are invalid, such as numbers that have not been assigned to a subscriber. Illegal robocalls cause substantial harm to consumers and often result in identity theft and financial fraud. EPIC supports robust telephone privacy protections and recently filed an amicus brief in support of the FCC's 2015 order that strengthened consumer protections under the TCPA.
EPIC Tells House Committee to Ensure Telemarketing Rules Protect Consumers » (Jun. 12, 2017)
EPIC has sent a statement to the House Judiciary Committee in advance of the hearing on "Lawsuit Abuse and the Telephone Consumer Protection Act." The telemarketing law bars telemarketers and robocallers from contacting consumers by phone fax, or text without prior consent. EPIC acknowledged that class action settlements often fail to provide direct financial benefits to consumers, but explained that "TCPA cases are among the most effective privacy class actions because they typically require companies to change their business practices to comply with the law." Last year, EPIC filed an amicus brief in support of TCPA protections for consumers. EPIC has also testified before Congress about the telemarketing law and submitted many comments concerning its implementation.
EPIC Urges Senate Committee to Safeguard Consumer Privacy in Internet of Things and Telemarketing Bills » (Jan. 24, 2017)
EPIC sent a letter to the Senate Commerce Committee on Monday about privacy and security concerns in two pending bills. The DIGIT Act would "encourage the growth" of the Internet of Things and "help identify barriers to its advancement." The Spoofing Prevention Act would extend the laws prohibiting Caller ID spoofing to text messages, international calls, and Voice-over-IP calls. EPIC pointed out the "significant privacy and security risks" to American consumers of the Internet of Things. EPIC also argued for "a requirement that any automated calls reveal (1) the actual identity of the caller and (2) the purpose of the call." EPIC has been at the forefront of policy work on the Internet of Things, recommending safeguards for connected cars, "smart homes," consumer products, and "always on" devices. EPIC also supports robust telephone privacy protections and recently advised Congress on modernizing telemarketing rules.
DC Appeals Court Hears Arguments in Telemarketing Privacy Case » (Oct. 20, 2016)
The federal appeals court in Washington, D.C. heard oral arguments Wednesday in a case with major implications for telephone privacy. The suit, ACA International v. FCC, was brought against the Federal Communications Commission by telemarketing companies and others challenging rules adopted under the Telephone Consumer Protection Act that prohibit automated calls made to cell phones without their consent. EPIC and six consumer privacy groups filed an amicus brief in the case, stressing the importance of privacy protections for cell phone users. EPIC also challenged a claim made by the telemarketers that "37 million" numbers were reassigned each year, making it difficult, the companies claimed, to comply with the privacy law. During the argument, one of the judges pressed the telemarketers' attorney on the point (audio), citing research in the EPIC amicus brief. EPIC frequently participates as amicus curiae in cases that raises novel privacy issues.
EPIC, Consumer Coalition Tells FCC to Limit Health Care Robocalls » (Oct. 19, 2016)
EPIC and a coalition of consumer privacy advocates have urged the Federal Communications Commission to reject a request by health insurance companies to make unlimited health-related robocalls to consumers under the Telephone Consumer Protection Act. The insurance companies asked the FCC to amend the TCPA so that once a consumer provides her phone number to her doctor, she has "consented" to receiving telemarketing calls from other health care providers on anything medically related. The coalition comments, led by the National Consumer Law Center, urge the FCC to limit the scope of consumers' consent to medical robocalls by exclude telemarketing calls and allowing only calls related to the original reason the consumer provided her phone number. EPIC supports robust telephone privacy protections and filed an amicus brief in support of the FCC's 2015 order that strengthened consumer protections under the TCPA.
EPIC Advises Congress on Modernizing Telemarketing Rules to Protect Consumers » (Sep. 21, 2016)
EPIC has sent a letter to the House Energy and Commerce Committee in advance of the hearing on “Modernizing the Telephone Consumer Protection Act.” The telemarketing law bars telemarketers and robocallers from contacting consumers by phone fax, or text without prior consent. EPIC urged the Committee to ensure that an update to the law “protects consumers from unwanted commercial communications.” EPIC said legal rights should be “robust, enforceable and minimally burdensome for consumers." Earlier this year, EPIC filed an amicus brief in support of strengthening TCPA protections for consumers. EPIC has also testified before Congress about the telemarketing law and submitted many comments concerning its implementation.
EPIC, Consumer Coalition Oppose Robocalls by Government Contractors » (Jul. 26, 2016)
EPIC and a coalition of consumer groups have petitioned the FCC to reverse its recent decision to exempt federal contractors from restrictions on telemarketing and robocalls. The FCC incorrectly determined that the Telephone Consumer Protection Act (TCPA) “does not apply to calls made by or on behalf of the federal government in the conduct of official government business.” The petition, led by the National Consumer Law Center, warns of significant increases in unwanted robocalls from government contractors that consumers would be powerless to stop. EPIC supports robust telephone privacy protections and filed an amicus brief in support of the FCC’s 2015 order that strengthened consumer protections under the TCPA.
Senate Examines "Do Not Call" Law » (May. 19, 2016)
The Senate Commerce Committee held a hearing yesterday on the Telephone Consumer Protection Act. The "TCPA" bars telemarketers and robocallers from contacting consumers by phone or fax without prior express consent. In January, EPIC filed an amicus brief to provide greater TCPA protections for consumers.  EPIC said that widespread use of cellphones “has amplified the nuisance and privacy invasion caused by unwanted calls and text messages.” EPIC has testified before Congress about the TCPA and submitted many comments concerning the implementation of the consumer privacy law.
EPIC and Consumer Privacy Groups File Brief Supporting FCC in Telephone Privacy Case » (Jan. 25, 2016)
EPIC and six consumer privacy organizations have filed a "friend-of-the-court" brief in support of the Federal Communications Commission in ACA International v. FCC. The case was brought against the FCC by industry groups charged with violating the Telephone Consumer Protection Act. The FCC had made clear that companies cannot make automated or prerecorded calls to consumers without their consent. EPIC argued in its brief that widespread adoption of cell phones "has amplified the nuisance and privacy invasion caused by unwanted calls and text messages." EPIC and the consumer organizations urged the federal court to uphold the FCC order safeguarding consumers.
Supreme Court Rules Settlement Offers Can't Moot Consumer Class Actions » (Jan. 20, 2016)
The Supreme Court has ruled that a company cannot terminate class action litigation by strategically making a settlement offer of full relief to individual plaintiffs. The case, Campbell-Ewald Co. v. Gomez, involved a consumer who refused to drop his Telephone Consumer Protection Act lawsuit in exchange for such an offer. The defendant company argued that the offer, which exceeded the statutory damages under the TCPA, mooted his case. The Justices disagreed, ruling 6-3 that "an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation." EPIC routinely works to protect consumer privacy interests in class action settlements.
EPIC to File "Friend of the Court" Brief in FCC Privacy Case » (Dec. 16, 2015)
EPIC today filed a notice of intent in ACA Int'l v. FCC, a case about the consumer protections from unwanted and harassing phone calls. The Telephone Consumer Protection Act prohibits most automated solicitations unless the customer has given consent. Last summer, the Federal Communications Commission issued an order giving consumers more control to limit harassing telemarketing practices. Several marketing companies opposed the FCC order, which EPIC will now defend. EPIC contributed to the establishment of the TCPA and has submitted numerous comments to help ensure the Act's effective implementation.
FCC Implements Strict Rules to Halt Unwanted Telemarketing » (Jun. 19, 2015)
The Federal Communications Commission has adopted new rules that impose strict limits on telemarketing practices. Under the rules, consumers can halt unwanted messages by telling companies to stop calling. The rules also allow phone companies to offer call-blocking services to screen out automated telemarketing calls. In 2014, the FCC received more than 215,000 complaints from consumers regarding unwanted telephone solicitations. EPIC has previously urged the Commission to require express consumer consent for telemarketing calls and to protect wireless subscribers from telemarketing. EPIC President Marc Rotenberg helped establish the Telephone Consumer Protection Act.
Senators Urges FCC to Protect Consumers Against Unsolicited Calls » (Jun. 9, 2015)
Almost a dozen senators have urged the Federal Communications Commission to uphold consumer privacy protections within the Telephone Consumer Protection Act. Next week the Commission will vote on two dozen proposals seeking to relax enforcement of the Act. According to Senator Markey and others, the FCC's recommendation to permit unsolicited texts and calls without consumer consent "would threaten privacy and result in an increase in disruptive and annoying calls for American consumers." The Commission will vote on the proposals during an Open Meeting on June 18, 2015. EPIC supported enactment of the TCPA and has advocated for strong enforcement.
National Do Not Call Registry Tops 217 Million Phone Numbers » (Oct. 17, 2012)
According to the 2012 "National Do Not Call Registry Data Book", the number of actively registered phone numbers is up, but so too are the number of consumer complaints about unwanted telemarketing calls. The FTC has continued to receive large numbers of consumer complaints about robocalls even though most telemarketing robocalls have been illegal since September 2009. EPIC supported establishment of the Do Not Call Registry, and recommended to Congress in 2010 that an effective Do Not Track initiative would need to ensure that a consumer's decision is "enforceable, persistent, transparent, and simple." For more information, see EPIC: Telemarketing and the Telephone Consumer Protection Act and EPIC: Online Tracking and Behavioral Profiling.
FCC Issues Stronger Telemarketing Rules to Protect Consumers » (Jun. 12, 2012)
The Federal Communications Commission's final rule amending the Telephone Consumer Protection Act of 1991 (TCPA) regulations is now in effect. The rule requires "(1)prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines; (2) allow[s] consumers to opt out of future robocalls during a robocall; (3) limit[s] permissible abandoned calls on a per-calling campaign basis, in order to discourage intrusive calling campaigns; and (4) exempts prerecorded calls to residential lines made by health care-related entities governed by the Health Insurance Portability and Accountability Act of 1996." EPIC has previously urged the Commission to require express consumer consent for telemarketing calls and to protect wireless subscribers from telemarketing. For more information, see EPIC: Telemarketing and the Telephone Consumer Protection Act (TCPA).
FTC Announces $30 Million Penalty Against Deceptive Robocallers » (Apr. 2, 2012)
The Federal Trade Commission announced that a federal judge has ordered the defendants behind a deceptive robocall scheme to pay a $30 million civil penalty and surrender more than $1.1 million in ill-gotten gains. The scheme promised "cash grants" to individuals—many of whom were on the Do No Call Registry--but merely referred them to grant-related websites that charged a fee for providing general information about obtaining grants from private sources. The FTC determined that the robocalls violated the FTC Act and the Telemarketing Sales Rule. For more information, see EPIC: Federal Trade Commission and EPIC: Telephone Consumer Protection Act.
FCC Issues Tougher RoboCall Rules » (Feb. 16, 2012)
The Federal Communications Commission has issued new rules that strengthen consumer protections against telemarking calls. The rules require telemarketers to obtain written consent of consumers before placing a robocall, require telemarketers to allow consumers to revoke consent to a robocall during the call itself, and close a loophole that allowed telemarketers to place calls to customers with whom they had an established business relationship. EPIC was one of the consumer and privacy groups that advocated for the original Do Not Call registry. EPIC has also urged the FCC to require strong privacy safeguards for telephone customers' personal information, and protect wireless subscribers from telemarketing. For more information, see EPIC: EPIC Telemarketing and Telephone Consumer Protection Act.
Federal Trade Commission Releases 2011 Do Not Call List, Warns of Do Not Call Scams » (Dec. 5, 2011)
The FTC has released the 2011 National Do Not Call Registry Data Book, which includes extensive information on the Do Not Call Registry as well as tips for consumers. Over 209 million telephone numbers are now listed on the Do Not Call Registry. In 2011, over 2 million consumers filed complaints over unwanted telemarketing calls. In announcing the Data Book, the FTC also warned consumers that scammers are calling consumers and claiming to sign them up for the National Do Not Call Registry. The FTC said that these calls were not coming from the Commission or the Registry, and that consumers should ignore them. For more information, see EPIC: Federal Trade Commission, or EPIC: Telemarketing and the Telephone Consumer Protection Act.
Trade Commission Prohibits Robocalls » (Aug. 28, 2009)
The Federal Trade Commission is prohibiting commercial telemarketing calls to consumers after September 1, 2009. The agency amended the Telemarketing Sales Rule, which imposes a penalty of $16,000 per call, to cover sellers and telemarketers who transmit prerecorded messages to consumers who have not agreed in writing to accept such messages. The Telemarketing Rule is authorized under the Telemarketing and Consumer Fraud and Abuse Prevention Act. The new rule does not prohibit informational messages or calls by politicians, banks, telephone carriers, and charities. EPIC has urged the FCC to require strong privacy safeguards for telephone customers' personal information, and protect wireless subscribers from telemarketing. See also EPIC Telemarketing and Telephone Consumer Protection Act.

Introduction

Telemarketing is a practice where a business initiates a phone call in order to propose a commercial transaction. Millions of telemarketing calls are made to individuals every year. Telemarketing is highly unpopular among Americans; public opinion on telemarketing routinely shows that the vast majority of Americans object to unsolicited sales calls.

Business to consumer telemarketing takes place in two different ways: first, inbound telemarketing is the business use of a telephone to accept consumer calls regarding a product. Inbound telemarketing usually occurs where a consumer responds to direct mail or a television advertisement. Second, outbound telemarketing is the practice of placing calls to consumers for sales purposes. Outbound telemarketing may take place in a "boiler room," a makeshift office that houses persons on an hourly rate to make sales calls. These employees may not be familiar with federal and state telemarketing rules, as there is a 60-70% turnover rate in the industry.

Telemarketing is popular because it is an inexpensive way to market products. Costs are low for the telemarketer, but high on the individual who may be annoyed, inconvenienced, or even psychologically harmed by numerous hang-up calls during the day. In weighing the costs of phone sales, telemarketers and telemarketing industry groups do not consider the costs that are imposed on telephone subscribers, such as the expense incurred from lost time, the monthly cost of caller ID or privacy manager services, the purchase of answering machines to screen calls, and the monthly cost of maintaining an unlisted phone number.

Numerous companies offer advice to individuals who wish to start their own telemarketing venture. For instance, Businesstown.com advises sales callers that they should attempt to gain individuals' trust before reading from the telemarketing script:

"When you are making outbound calls, you must attract the customer's interest in the first ten to fifteen seconds of the phone call. Engage the customer in a friendly conversation so that you can build trust and establish polite inquiry as to the person's state of mind. Open with something casual like "How are you today?" Do not attempt to launch into the sales pitch until you get the customer talking and feeling positive about your intentions."

"...As early as possible, you want to smoothly qualify this individual as a prospect without causing him or her to hang up. You must remember that the prospect is thinking "I don't want this" and your job is to reverse this thinking."

Telemarketing Law and Practices

Telemarketing is governed primarily by two statutes.

First is the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227. The Federal Communications Commission (FCC) has authority to collect complaints and institute enforcement actions against violators of the TCPA. In simple terms, the TCPA and its progeny bar most autodialed or prerecorded calls, texts, or faxes unless made with prior express consent. For telephonic communications, the TCPA and the FCC’s implementing regulations distinguish between calls to residential numbers and calls and texts to wireless numbers. The FCC’s implementing regulations have also narrowed the categories of communications subject to TCPA liability.

The TCPA grants consumers a private right of action to enforce the Act against telemarketers and robocallers. Callers can face a penalty of up to $500 or the actual monetary loss in damages per violation, whichever is greater, and treble damages for each willful or knowing violation.

Residential Numbers

The TCPA bars all non-emergency calls using an artificial or prerecorded voice without prior express consent of the called party, unless the call is made solely to collect a debt owed to or guaranteed by the United States. The TCPA also allows the FCC at its discretion to exempt certain calls pursuant to its authority under 47 U.S.C. § 227(b)(2). Section 227(b)(2)(B) empowers the FCC to issue rules exempting calls to residential numbers that are not made for commercial purposes or that are made for commercial purposes but do not adversely affect privacy rights and do not include unsolicited advertisements.

The FCC’s regulations further require that the prior express consent must be written. Under the FCC’s regulations, no consent if any kind is required if the call:

• Is made for emergency purposes;
• Is not made for commercial purposes;
• Is made for commercial purposes but does not include or introduce an advertisement or constitute telemarking;
• Is made by or on behalf of a tax-exempt nonprofit; or
• Delivers a health care message as defined under HIPAA.

Wireless Numbers

The TCPA bars all non-emergency communications using an ATDS/autodialer or an artificial or prerecorded voice without prior express consent, unless the call is made solely to collect a debt owed to or guaranteed by the United States. The TCPA also allows the FCC at its discretion to exempt certain calls pursuant to its authority under 47 U.S.C. § 227(b)(2). Section 227(b)(2)(C) empowers the FCC to issue rules exempting calls to wireless numbers that “are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect.”

Under the FCC's regulations, the form of consent depends on the content of the communication:

• Prior express written consent of the called party if the call introduces an advertisement or constitutes telemarketing;
• Prior express written or oral consent of the called party if the call:
  • Does not include or introduces an advertisement or constitutes telemarketing;
  • Introduces an advertisement or constitutes telemarketing made by or on behalf of a tax-exempt nonprofit; or
  • Delivers a health care message as defined under HIPAA.

Second, the Telemarketing and Consumer Fraud Abuse Prevention Act, addresses specific aspects of telemarketing, and empowers the Federal Trade Commission (FTC) to issue the Telemarketing Sales Rule (TSR), 16 C.F.R. Part 310. Currently, the TSR restrictions on telemarketers include:

• Telemarketers must make certain disclosures at the outset of the sales call. These disclosures include the name of the seller and that the call is being made for sales purposes. In case of a purchase, the telemarketer must disclose the total charge of the sale, whether there are restrictions on the sale, and whether there is a refund policy.
• Sweepstakes telemarketing involve special disclosures as well. The telemarketer must inform the call recipient that no purchase is necessary in order to participate, the odds for winning, and whether there is a cost associated with participation.
• Calls cannot be initiated before 8 AM or after 9 PM in the recipient's timezone.
• Telemarketers must obtain "express verifiable authorization" before engaging in certain transactions, such as making a draft directly from a bank account.
• Telemarketers must maintain records, including records of advertisements, sales records, and employee records.

It is important to note that the TSR does not apply to certain forms of telemarketing, including most business-to-business sales calls, telemarketing by banks, federal financial institutions, common carriers (phone companies and airlines), insurance companies, and non-profit organizations.

Two other rules provide additional protections to consumers: the Mail and Telephone Order Rulegoverns representations regarding the delivery of products purchased through telemarketing. The Telephone Disclosure and Dispute Resolution Act (1992) required federal agencies to develop the 900 Number Rule. The 900 Number rule governs disclosures and procedures associated with pay-per-call services. Both of these rules primarily address consumer protection issues outside the scope of privacy protection.

Unsolicited Commercial Faxes or "Junk Faxes"

The TCPA of 1991 specifically prohibited the sending of unsolicited chimerical fax messages ("junk faxes") to someone without first obtaining their consent. Additionally, all commercial fax messages sent must include accurate information on the time and date they were sent, and the phone number of the sending fax machine.

Unsolicited junk faxes are illegal because they are "cost-shifted" advertising messages. That is, commercial entities can send thousands of solicitations to individuals, and the recipient bears the burden of paying for the fax toner and paper.

The California Public Utilities Commission issued a report in 1991 showing that junk faxes cost California consumers $17 million a year. The Commission has issued a study to update this figure.

In other states, individuals have joined class action lawsuits to limit junk faxes. In 1995, an Augusta, Georgia man brought a large class action against the "Hooters" restaurant chain. In 2001, a Federal Court awarded the class a $12 million verdict against Hooters.

The Federal Communications Commission also pursues junk faxers. In 2001, the FCC fined 21st Century Fax $1 million for sending unsolicited fax messages.

Junk faxes are often sent on behalf of a company by a blast fax centers, such as Fax.com. Fax.com and other junk faxers have been cited many times by the FCC.

Despite these different approaches to enforcement, junk faxes continue to be sent. Junk fax businesses openly sell fax numbers, software, and complete junk faxing packages on the Internet. For instance, Dialcentric markets fax broadcasting systems via E-mail and web sites:

"THE COMPLETE FAX MARKETING SYSTEM!
1 Million Fax Leads & Fax Broadcasting Software Only $149!
Fax broadcasting is the hot new way to market your product or service. You can not beat fax broadcasting for cost effectiveness and reliability. Get your information out to the masses for the lowest price.
People are 4 times more likely to read a fax than junk mail!
THE LIST
List includes fax numbers from every area code in the United States.
List includes business name, fax number, phone number, SIC code, & business description.
All fax numbers were verified 90 days ago.
Fax lists are constantly updated and cleaned.
The list comes on a CD and all fax numbers are fully exportable into most software."

Telemarketing and Fraud

Thousands of telemarketing sales calls are made to defraud consumers. Unscrupulous telemarketers even maintain "mooch" lists, databases of people who are most likely to be victimized by fraudulent sales calls.

State Attorneys General have initiated a number of cases to address fraudulent telemarketing. In 1999, Minnesota Attorney General Mike Hatch brought suit against US Bancorp for selling customer account information to MemberWorks, a telemarketing company. The Attorney General alleged that in addition to selling customer contact information, US Bancorp sold credit card numbers, checking account numbers, Social Security numbers, and account balance information. US Bancorp received $4 million and 22% commission on all sales that were completed using the information. US Bancorp settled the case, agreed to pay a $3 million fine, and agreed to end the practice of selling customer information to telemarketers.

Other prominent banks have sold individuals' personal information to telemarketers as well. Capital One, Chase Manhattan, Citibank, First U.S.A., Fleet Mortgage, GE Capital, and MBNA America all have provided their customers' personal and confidential information to fraudulent telemarketers. The financial institutions provided the telemarketers with the names, telephone numbers and other information about their customers. They also gave them the ability to charge customers' accounts without having to ask consumers to provide an account number. In one case, during a thirteen month period a national bank processed 95,573 cancellations of membership clubs and other products that were billed by preacquired account telemarketers without customers' authorization.

In addition to selling fraudulent products and services, "slamming" is a practice often conducted through telemarketing. Slamming is the practice of switching an individual's long distance company without consent.

Predictive Dialers

Telemarketers use special telephone tools to maximize the number of outgoing calls that the company can make. One of the more obnoxious tools is the "predictive dialer." Predictive dialers make many calls at the same time, and connect the telemarketer to the first person who answers the phone. Call recipients who pick up the phone after the first recipient hear "dead air," or a telephone call with no one on the other end, and are disconnected. In the telemarketing industry, the call recipients who hear dead air are termed "abandoned calls."

Some predictive dialers attempt to delay the recipient from hanging up the phone by sending a ring signal to the phone. Many people will remain on the line after hearing the ringing tone, increasing the likelihood that the next available telemarketer will capture the "abandoned call." If the predictive dialer calls a busy line or a line with an answering machine, it automatically schedules the line to be called again later.

The telemarketing industry is aware that predictive dialers cause frustration and the 2002 proposed changes to the TSR would prohibit the use of predictive dialers where they produce "dead air."

Phone Companies Profiteer from Telemarketing Sales and Avoidance of Telemarketing

Phone companies sell both the tools that enable telemarketing and products to help individuals avoid sales calls. To enable telemarketing, phone companies sell dialing equipment, the lines and infrastructure that enable calling multiple persons at one time, and lists of new customers. To help individuals avoid telemarketing, the phone companies sell unlisted numbers, caller ID, and systems such as Privacy Manager.

Anti-Telemarketing Technology

There are commercial products that may reduce the number of telemarketing calls received.

These devices work in different ways. Some send a signal over the line when the phone rings. The signal indicates that the line is disconnected to telemarketers using predictive dialers. This type of product only works against telemarketers who use predictive dialers. Smaller telemarketing companies may not possess predictive dialers, and would evade the device.

Other devices play a prerecorded message for the telemarketer requesting that the call recipient be placed on a do-not-call list. There are also services offered by some phone companies that will automatically screen calls that are sent without caller id (CID) information.

Telephone companies themselves offer some services that can help individuals avoid telemarketing calls. These services include Caller ID, anonymous call rejection, and phone services that require the caller to give identification before the recipient's phone line will ring.

Telemarketing and Workplace Privacy

Individuals who work in telemarketing call centers experience invasive monitoring. The telemarketing business is privacy invasive both to its workers and to its customers. Callers are regularly monitored for speed in making calls and the number of times they use the customer's name. For more on this issue, please visit the EPIC Workplace Privacy Page.

What You Can Do to Reduce Telemarketing

Individuals are at a disadvantage when trying to eliminate or reduce the number of telemarketing calls received. There are many call centers in the United States that make tens of thousands of calls per day.

In order to reduce the number of telemarketing calls receive, we suggest these tactics:

• Sign up for the National Do Not Call Registry. The Registry is maintained by the FTC. If a telemarketer contacts you after you've added yourself to the list, you can file a complaint with the FTC.
• When possible, minimize the amount of personal data that you share with the government and businesses. For instance, if a retail store requests your phone number, do not share it with the store unless it is necessary to complete a transaction. Additionally, do not place your phone number on product surveys or warranty cards. Surveys and warranty cards are used to profileand target individuals for more advertising.
• Opt-out of telemarketing, credit reporting agency, and CPNI databases.
  1. The Direct Marketing Association offers an opt-out system called the " Telephone Preference Service." You can opt-out online via the TPS for a $5 fee, or send the DMA a letter to opt out at no charge.
  2. Several phone companies have announced that they will sell Customer Proprietary Network Information (CPNI) unless individuals opt-out. CPNI includes detailed account information about individuals who have a telephone line. To learn about CPNI and how to opt-out, see the EPIC CPNI Page.
  3. A 1999 federal law, the Gramm-Leach-Bliley Act, allows individuals to opt-out of information sharing done by banks, insurance companies, and brokerage houses. Be sure to call your financial institutions and request to opt-out from information sharing. Chances are, your bank or credit card company either sells your personal information to telemarketers or operates a telemarketing business with your personal information through an affiliate. You can learn more about Gramm-Leach-Bliley and financial privacy at Privacy Rights Now!.
• Tell telemarketers to put you on the "DO-NOT-CALL list." to assist individuals communicate the correct message. You'll be placed on a "skip" list. That is, the telemarketer will likely keep your phone number but program their equipment to not call your phone number again. Even if you do request this, if the caller is from a data center, they may be able to call you again on behalf of a different client. To avoid this, be sure to say that you do not want any calls from affiliated businesses as well.
• Under the law, you have the legal right to request the telemarketer's do not call policy. Consider asking telemarketers who call you to send the list to you by certified mail. If they fail to do so, you may have a right of action against them for $500 minimum damages.
• File a complaint with the Federal Communications Commission (FCC) if you believe that you are the victim of illegal telemarketing.
• Your state may provide protections that are broader than federal law. For a summary of state protections, see "State Action to Address Telemarketing" above.
• Notify your attorney general if you believe that you are the victim of illegal telemarketing. For a listing of all attorney generals, see the National Association of Attorneys General Website.

Telemarketing Companies

• Ameridial. "Ameridial's trained agents make about 70 million outbound calls per year, specializing in building custom databases and delivering pre-qualified leads. Ameridial maintains 300+ automated stations with predictive & preview dialing capabilities."
• Dunhill International List Company. Sells lists of personal information for telemarketing including the "New Baby Database," "Subprime Auto Loan Applicants," "Affluent America," and many other lists.
• American Teleservices Association. A telemarketing industry group.
• Direct Marketing Association. A marketing industry group.

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