Telephone Consumer Protection Act (TCPA)

The Telephone Consumer Protection Act (TCPA) is the federal statute that makes it unlawful to make calls using an automatic telephone dialing system or an artificial or prerecorded voice unless the call is for an emergency purpose or the called party gave prior express consent, and that also restricts unsolicited fax advertisements1 Source: 47 U.S.C. § 227(b)(1)(A) Congress gave the Federal Communications Commission authority to implement it. 2 Source: Consumer Financial Protection Bureau, Debt Collection Practices (Regulation F): Final Rule

Congress found that unrestricted telemarketing can be an intrusive invasion of privacy and, when an emergency or medical assistance telephone line is seized, a risk to public safety. 14 Source: Pub. L. No. 102-243, § 2, 105 Stat. 2394 (1991) (Congressional Statement of Findings, note to 47 U.S.C. § 227) It also found that telemarketers can evade state prohibitions through interstate operations, so a federal law was needed to control residential telemarketing practices. 15 Source: Pub. L. No. 102-243, § 2, 105 Stat. 2394 (1991) (Congressional Statement of Findings, note to 47 U.S.C. § 227) For automated and prerecorded calls to the home, Congress concluded that a ban, except when the receiving party consents or an emergency requires the call, is the only effective means of protecting consumers from the nuisance and privacy invasion. 16 Source: Pub. L. No. 102-243, § 2, 105 Stat. 2394 (1991) (Congressional Statement of Findings, note to 47 U.S.C. § 227) The consent requirement matters because a call with no live person is cheap for the caller and frustrating for the recipient, which multiplies such calls when nothing legally limits them. 17 Source: Final Brief of the Federal Trade Commission, Soundboard Ass'n v. FTC, No. 17-5093 (D.C. Cir.) Wireless consumers face a further cost, because autodialers can quickly dial thousands of numbers. 18 Source: Consumer Financial Protection Bureau, Debt Collection Practices (Regulation F) NPRM, § 1006.14

A private plaintiff may sue under the TCPA to recover actual monetary loss or $500 in damages for each violation, whichever is greater. 37 Source: 47 U.S.C. § 227(b)(3)–(4) If the court finds a willful or knowing violation, it may increase the award to not more than three times that amount. 38 Source: 47 U.S.C. § 227(b)(3)–(4) The statute sets no aggregate cap on statutory damages in class actions, so exposure can grow quickly when the same conduct reaches a large class. 39 Source: Consumer Financial Protection Bureau, Arbitration Agreements NPRM A separate private right of action covers do-not-call violations: a person who has received more than one call within 12 months by or on behalf of the same entity may sue. 40 Source: 47 U.S.C. § 227(c)(5) In that kind of action the defendant has an affirmative defense if it established and implemented, with due care, reasonable practices and procedures to effectively prevent violating calls. 41 Source: 47 U.S.C. § 227(c)(5)

Government enforcement adds separate exposure. A state attorney general may sue on behalf of residents to enjoin calls and to recover actual monetary loss or $500 in damages for each violation. 42 Source: 47 U.S.C. § 227(g) On a proper showing, a permanent or temporary injunction in such an action is granted without bond. 43 Source: 47 U.S.C. § 227(g) For a violation committed with intent, the FCC's forfeiture is the ordinary amount plus an additional penalty not to exceed $10,000. 44 Source: 47 U.S.C. § 227(b)(3)–(4) That ordinary amount comes from the Communications Act's forfeiture provision, which for a violator outside the categories it treats separately, such as broadcasters and common carriers, sets a ceiling of $10,000 for each violation or each day of a continuing violation, and $75,000 for any single act or failure to act. 45 Source: 47 U.S.C. § 503(b)(2)(D) Where the United States brings a civil suit to recover a forfeiture, the suit is a trial de novo, although the statute provides separately for a forfeiture penalty determined under section 503(b)(3). 46 Source: 47 U.S.C. § 504(a) No such forfeiture may be imposed for a violation that occurred more than four years before the required notice or notice of apparent liability. 47 Source: 47 U.S.C. § 227(b)(4)(E) Where the evidence suggests a willful, knowing, and repeated robocall violation with an intent to defraud, cause harm, or wrongfully obtain anything of value, the Chief of the FCC's Enforcement Bureau must provide that evidence to the Attorney General. 48 Source: 47 U.S.C. § 227b–2(a)

Per-call counting drives the totals. In the DISH Network case the court treated each illegal call as a separate violation, and a call that violated two or more subsections counted once for each subsection violated. 49 Source: United States v. DISH Network L.L.C., Findings of Fact and Conclusions of Law The court also held that an act violating multiple statutes may be liable for multiple awards of statutory damages and penalties. 50 Source: United States v. DISH Network L.L.C., Findings of Fact and Conclusions of Law On the other side of the ledger, the Seventh Circuit noted that the TCPA contains no provision directing a court to consider a violator's ability to pay. 51 Source: United States v. DISH Network L.L.C., 954 F.3d 970 (7th Cir. 2020)