|
Telephone Consumer
Protection Act
47 U.S.C. § 227
RESTRICTIONS ON THE USE OF TELEPHONE EQUIPMENT
(a)
DEFINITIONS.—As used in this section—
(1) The term
“automatic telephone dialing system” means equipment which has the
capacity—
(A) to
store or produce telephone numbers to be called, using a random
or sequential number generator; and
(B) to
dial such numbers.
(2) The term
“established business relationship”, for purposes only of subsection
(b)(1)(C)(i), shall have the meaning given the term in section
64.1200 of title 47, Code of Federal Regulations, as in effect on
January 1, 2003, except that—
(A) such
term shall include a relationship between a person or entity and
a business subscriber subject to the same terms applicable under
such section to a relationship between a person or entity and a
residential subscriber; and
(B) an
established business relationship shall be subject to any time
limitation established pursuant to paragraph (2)(G)).
(3) The term
“telephone facsimile machine” means equipment which has the capacity
(A) to
transcribe text or images, or both, from paper into an
electronic signal and to transmit that signal over a regular
telephone line, or
(B) to
transcribe text or images (or both) from an electronic signal
received over a regular telephone line onto paper.
(4) The term
“telephone solicitation” means the initiation of a telephone call or
message for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted to
any person, but such term does not include a call or message
(A) to
any person with that person's prior express invitation or
permission,
(B) to
any person with whom the caller has an established business
relationship, or
(C) by a
tax exempt nonprofit organization.
(5) The term
“unsolicited advertisement” means any material advertising the
commercial availability or quality of any property, goods, or
services which is transmitted to any person without that person's
prior express invitation or permission, in writing or otherwise.
(b)
RESTRICTIONS ON THE USE OF AUTOMATED TELEPHONE EQUIPMENT.—
(1)
PROHIBITIONS.—It shall be unlawful for any person within the United
States, or any person outside the United States if the recipient is
within the United States—
(A) to make any call (other than a call made for emergency purposes
or made with the prior express consent of the called party) using
any automatic telephone dialing system or an artificial or
prerecorded voice—
(i) to any emergency telephone line (including
any “911” line and any emergency line of a hospital, medical
physician or service office, health care facility, poison control
center, or fire protection or law enforcement agency);
(ii) to the
telephone line of any guest room or patient room of a hospital,
health care facility, elderly home, or similar establishment; or
(iii) to any telephone number assigned to a paging service, cellular
telephone service, specialized mobile radio service, or other radio
common carrier service, or any service for which the called party is
charged for the call;
(B) to initiate any telephone call to any
residential telephone line using an artificial or prerecorded voice
to deliver a message without the prior express consent of the called
party, unless the call is initiated for emergency purposes or is
exempted by rule or order by the Commission under paragraph (2)(B);
(C) to use any telephone facsimile machine, computer, or other
device to send, to a telephone facsimile machine, an unsolicited
advertisement to a telephone facsimile machine, unless—
(i) the
unsolicited advertisement is from a sender with an established
business relationship with the recipient;
(ii) the sender obtained
the number of the telephone facsimile machine through—
(I) the
voluntary communication of such number, within the context of such
established business relationship, from the recipient of the
unsolicited advertisement, or
(II) a directory, advertisement, or
site on the Internet to which the recipient voluntarily agreed to
make available its facsimile number for public distribution, except
that this clause shall not apply in the case of an unsolicited
advertisement that is sent based on an established business
relationship with the recipient that was in existence before July 9,
2005, if the sender possessed the facsimile machine number of the
recipient before such date of enactment; and
(iii) the unsolicited advertisement contains a notice meeting the
requirements under paragraph (2)(D), except that the exception under
clauses (i) and (ii) shall not apply with respect to an unsolicited
advertisement sent to a telephone facsimile machine by a sender to
whom a request has been made not to send future unsolicited
advertisements to such telephone facsimile machine that complies
with the requirements under paragraph (2)(E); or
(D) to use an
automatic telephone dialing system in such a way that two or more
telephone lines of a multi-line business are engaged simultaneously.
(2) REGULATIONS; EXEMPTIONS AND OTHER PROVISIONS.—The Commission
shall prescribe regulations to implement the requirements of this
subsection. In implementing the requirements of this subsection, the
Commission—
(A) shall consider prescribing regulations to allow
businesses to avoid receiving calls made using an artificial or
prerecorded voice to which they have not given their prior express
consent;
(B) may, by rule or order, exempt from the requirements of
paragraph (1)(B) of this subsection, subject to such conditions as
the Commission may prescribe—
(i) calls that are not made for a
commercial purpose; and
(ii) such classes or categories of calls
made for commercial purposes as the Commission determines—
(I) will
not adversely affect the privacy rights that this section is
intended to protect; and
(II) do not include the transmission of any
unsolicited advertisement;
(C) may, by rule or order, exempt from
the requirements of paragraph (1)(A)(iii) of this subsection calls
to a telephone number assigned to a cellular telephone service 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;
(D) shall
provide that a notice contained in an unsolicited advertisement
complies with the requirements under this subparagraph only if—
(i)
the notice is clear and conspicuous and on the first page of the
unsolicited advertisement;
(ii) the notice states that the recipient may make a request to the
sender of the unsolicited advertisement not to send any future
unsolicited advertisements to a telephone facsimile machine or
machines and that failure to comply, within the shortest reasonable
time, as determined by the Commission, with such a request meeting
the requirements under subparagraph (E) is unlawful;
(iii) the
notice sets forth the requirements for a request under subparagraph
(E);
(iv) the notice includes—
(I) a domestic contact telephone and
facsimile machine number for the recipient to transmit such a
request to the sender; and
(II) a cost-free mechanism for a
recipient to transmit a request pursuant to such notice to the
sender of the unsolicited advertisement; the Commission shall by
rule require the sender to provide such a mechanism and may, in the
discretion of the Commission and subject to such conditions as the
Commission may prescribe, exempt certain classes of small business
senders, but only if the Commission determines that the costs to
such class are unduly burdensome given the revenue generated by such
small businesses;
(v) the telephone and facsimile machine numbers
and the cost-free mechanism set forth pursuant to clause
(iv) permit
an individual or business to make such a request at any time on any
day of the week; and
(vi) the notice complies with the requirements
of subsection (d);
(E) shall provide, by rule, that a request not to
send future unsolicited advertisements to a telephone facsimile
machine complies with the requirements under this subparagraph only
if—
(i) the request identifies the telephone number or numbers of
the telephone facsimile machine or machines to which the request
relates;
(ii) the request is made to the telephone or facsimile
number of the sender of such an unsolicited advertisement provided
pursuant to subparagraph (D)(iv) or by any other method of
communication as determined by the Commission; and
(iii) the person
making the request has not, subsequent to such request, provided
express invitation or permission to the sender, in writing or
otherwise, to send such advertisements to such person at such
telephone facsimile machine;
(F) may, in the discretion of the
Commission and subject to such conditions as the Commission may
prescribe, allow professional or trade associations that are
tax-exempt nonprofit organizations to send unsolicited
advertisements to their members in furtherance of the association’s
tax-exempt purpose that do not contain the notice required by
paragraph (1)(C)(iii), except that the Commission may take action
under this subparagraph only—
(i) by regulation issued after public
notice and opportunity for public comment; and
(ii) if the
Commission determines that such notice required by paragraph (1)(C)(iii)
is not necessary to protect the ability of the members of such
associations to stop such associations from sending any future
unsolicited advertisements; and (G)(i) may, consistent with clause
(ii), limit the duration of the existence of an established business
relationship, however, before establishing any such limits, the
Commission shall—
(I) determine whether the existence of the
exception under paragraph(1)(C) relating to an established business
relationship has resulted in a significant number of complaints to
the Commission regarding the sending of unsolicited advertisements
to telephone facsimile machines;
(II) determine whether a
significant number of any such complaints involve unsolicited
advertisements that were sent on the basis of an established
business relationship that was longer in duration that the
Commission believes is consistent with the reasonable expectations
of consumers;
(III) evaluate the costs to senders of demonstrating
the existence of an established business relationship within a
specified period of time and the benefits to recipients of
establishing a limitation on such established business relationship;
and
(IV) determine whether with respect to small businesses,
the costs would not be unduly burdensome; and (ii) may
not commence a proceeding to determine whether to limit
the duration of the existence of an established business
relationship before the expiration of the 3-month period
that begins on July 9, 2005.
(3) PRIVATE RIGHT OF ACTION.—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—
(A) an action based on a violation
of this subsection or the regulations prescribed under this
subsection to enjoin such violation,
(B) an action to recover for
actual monetary loss from such a violation, or to receive $500 in
damages for each such violation, whichever is greater, or
(C) both
such actions. If the court finds that the defendant willfully or
knowingly violated this subsection or the regulations prescribed
under this subsection, the court may, in its discretion, increase
the amount of the award to an amount equal to not more than 3 times
the amount available under subparagraph (B) of this paragraph.
(c)
PROTECTION OF SUBSCRIBER PRIVACY RIGHTS.—
(1) RULEMAKING PROCEEDING
REQUIRED.— Within 120 days after December 20, 1991, the Commission
shall initiate a rulemaking proceeding concerning the need to
protect residential telephone subscribers' privacy rights to avoid
receiving telephone solicitations to which they object. The
proceeding shall—
(A) compare and evaluate alternative methods and
procedures (including the use of electronic databases, telephone
network technologies, special directory markings, industry-based or
company-specific “do not call” systems, and any other alternatives,
individually or in combination) for their effectiveness in
protecting such privacy rights, and in terms of their cost and other
advantages and disadvantages;
(B) evaluate the categories of public
and private entities that would have the capacity to establish and
administer such methods and procedures;
(C) consider whether
different methods and procedures may apply for local telephone
solicitations, such as local telephone solicitations of small
businesses or holders of second class mail permits;
(D) consider
whether there is a need for additional Commission authority to
further restrict telephone solicitations, including those calls
exempted under subsection (a)(3) of this section, and, if such a
finding is made and supported by the record, propose specific
restrictions to the Congress; and
(E)
develop proposed regulations to implement the methods and
procedures that the Commission determines are most effective and
efficient to accomplish the purposes of this section.
(2) REGULATIONS.— Not later than 9 months after December 20, 1991,
the Commission shall conclude the rulemaking proceeding initiated
under paragraph (1) and shall prescribe regulations to implement
methods and procedures for protecting the privacy rights described
in such paragraph in an efficient, effective, and economic manner
and without the imposition of any additional charge to telephone
subscribers.
(3) USE OF DATABASE PERMITTED.—The regulations required
by paragraph (2) may require the establishment and operation of a
single national database to compile a list of telephone numbers of
residential subscribers who object to receiving telephone
solicitations, and to make that compiled list and parts thereof
available for purchase. If the Commission determines to require such
a database, such regulations shall—
(A) specify a method by which
the Commission will select an entity to administer such database;
(B) require each common carrier providing telephone exchange
service, in accordance with regulations prescribed by the
Commission, to inform subscribers for telephone exchange service of
the opportunity to provide notification, in accordance with
regulations established under this paragraph, that such subscriber
objects to receiving telephone solicitations;
(C) specify the
methods by which each telephone subscriber shall be informed, by the
common carrier that provides local exchange service to that
subscriber, of (i) the subscriber's right to give or revoke a
notification of an objection under subparagraph (A), and (ii) the
methods by which such right may be exercised by the subscriber;
(D)
specify the methods by which such objections shall be collected and
added to the database;
(E) prohibit any residential subscriber from
being charged for giving or revoking such notification or for being
included in a database compiled under this section;
(F) prohibit any
person from making or transmitting a telephone solicitation to the
telephone number of any subscriber included in such database;
(G)
specify (i) the methods by which any person desiring to make or
transmit telephone solicitations will obtain access to the database,
by area code or local exchange prefix, as required to avoid calling
the telephone numbers of subscribers included in such database; and
(ii) the costs to be recovered from such persons;
(H) specify the
methods for recovering, from persons accessing such database, the
costs involved in identifying, collecting, updating, disseminating,
and selling, and other activities relating to, the operations of the
database that are incurred by the entities carrying out those
activities;
(I) specify the frequency with which such database will be updated
and specify the method by which such updating will take effect for
purposes of compliance with the regulations prescribed under this
subsection;
(J) be designed to enable States to use the database
mechanism selected by the Commission for purposes of administering
or enforcing State law;
(K) prohibit the use of such database for
any purpose other than compliance with the requirements of this
section and any such State law and specify methods for protection of
the privacy rights of persons whose numbers are included in such
database; and
(L) require each common carrier providing services to
any person for the purpose of making telephone solicitations to
notify such person of the requirements of this section and the
regulations thereunder.
(4) CONSIDERATIONS REQUIRED FOR USE OF
DATABASE METHOD.—If the Commission determines to require the
database mechanism described in paragraph (3), the Commission shall—
(A) in developing procedures for gaining access to the database,
consider the different needs of telemarketers conducting business on
a national, regional, State, or local level;
(B) develop a fee
schedule or price structure for recouping the cost of such database
that recognizes such differences and—
(i) reflect the relative costs
of providing a national, regional, State, or local list of phone
numbers of subscribers who object to receiving telephone
solicitations;
(ii) reflect the relative costs of providing such
lists on paper or electronic media; and
(iii) not place an
unreasonable financial burden on small businesses; and
(C) consider
(i) whether the needs of telemarketers operating on a local basis
could be met through special markings of area white pages
directories, and (ii) if such directories are needed as an adjunct
to database lists prepared by area code and local exchange prefix.
(5) PRIVATE RIGHT OF ACTION.—A person who has received more than one
telephone call within any 12-month period by or on behalf of the
same entity in violation of the regulations prescribed under this
subsection may, if otherwise permitted by the laws or rules of court
of a State bring in an appropriate court of that State—
(A) an action based on a violation of the regulations prescribed
under this subsection to enjoin such violation,
(B) an action to
recover for actual monetary loss from such a violation, or to
receive up to $500 in damages for each such violation, whichever is
greater, or
(C) both such actions. It shall be an affirmative
defense in any action brought under this paragraph that the
defendant has established and implemented, with due care, reasonable
practices and procedures to effectively prevent telephone
solicitations in violation of the regulations prescribed under this
subsection. If the court finds that the defendant willfully or
knowingly violated the regulations prescribed under this subsection,
the court may, in its discretion, increase the amount of the award
to an amount equal to not more than 3 times the amount available
under subparagraph (B) of this paragraph.
(6) RELATION TO SUBSECTION
(b).—The provisions of this subsection shall not be construed to
permit a communication prohibited by subsection (b).
(d) TECHNICAL
AND PROCEDURAL STANDARDS.—
(1) PROHIBITION.—It shall be unlawful for
any person within the United States—
(A) to initiate any
communication using a telephone facsimile machine, or to make any
telephone call using any automatic telephone dialing system, that
does not comply with the technical and procedural standards
prescribed under this subsection, or to use any telephone facsimile
machine or automatic telephone dialing system in a manner that does
not comply with such standards; or
(B) to use a computer or other
electronic device to send any message via a telephone facsimile
machine unless such person clearly marks, in a margin at the top or
bottom of each transmitted page of the message or on the first page
of the transmission, the date and time it is sent and an
identification of the business, other entity, or individual sending
the message and the telephone number of the sending machine or of
such business, other entity, or individual.
(2) TELEPHONE FACSIMILE
MACHINES.—The Commission shall revise the regulations setting
technical and procedural standards for telephone facsimile machines
to require that any such machine which is manufactured after one
year after December 20, 1991 clearly marks, in a margin at the top
or bottom of each transmitted page or on the first page of each
transmission, the date and time sent, an identification of the
business, other entity, or individual sending the message, and the
telephone number of the sending machine or of such business, other
entity, or individual.
(3) ARTIFICIAL OR PRERECORDED VOICE SYSTEMS.—The Commission shall
prescribe technical and procedural standards for systems that are
used to transmit any artificial or prerecorded voice message via
telephone. Such standards shall require that—
(A) all artificial or
prerecorded telephone messages (i) shall, at the beginning of the
message, state clearly the identity of the business, individual, or
other entity initiating the call, and (ii) shall, during or after
the message, state clearly the telephone number or address of such
business, other entity, or individual; and
(B) any such system will
automatically release the called party's line within 5 seconds of
the time notification is transmitted to the system that the called
party has hung up, to allow the called party's line to be used to
make or receive other calls.
(e) EFFECT ON STATE LAW.—
(1) STATE LAW
NOT PREEMPTED.—Except for the standards prescribed under subsection
(d) and subject to paragraph (2) of this subsection, nothing in this
section or in the regulations prescribed under this section shall
preempt any State law that imposes more restrictive intrastate
requirements or regulations on, or which prohibits—
(A) the use of
telephone facsimile machines or other electronic devices to send
unsolicited advertisements;
(B) the use of automatic telephone
dialing systems;
(C) the use of artificial or prerecorded voice
messages; or
(D) the making of telephone solicitations.
(2) STATE
USE OF DATABASES.—If, pursuant to subsection (c)
(3), the Commission
requires the establishment of a single national database of
telephone numbers of subscribers who object to receiving telephone
solicitations, a State or local authority may not, in its regulation
of telephone solicitations, require the use of any database, list,
or listing system that does not include the part of such single
national database that relates to such State.
(f) ACTIONS BY
STATES.—
(1) AUTHORITY OF STATES.—Whenever the attorney general of a
State, or an official or agency designated by a State, has reason to
believe that any person has engaged or is engaging in a pattern or
practice of telephone calls or other transmissions to residents of
that State in violation of this section or the regulations
prescribed under this section, the State may bring a civil action on
behalf of its residents to enjoin such calls, an action to recover
for actual monetary loss or receive $500 in damages for each
violation, or both such actions. If the court finds the defendant
willfully or knowingly violated such
regulations, the court may, in its discretion, increase the amount
of the award to an amount equal to not more than 3 times the amount
available under the preceding sentence.
(2) EXCLUSIVE JURISDICTION
OF FEDERAL COURTS.—The district courts of the United States, the
United States courts of any territory, and the District Court of the
United States for the District of Columbia shall have exclusive
jurisdiction over all civil actions brought under this subsection.
Upon proper application, such courts shall also have jurisdiction to
issue writs of mandamus, or orders affording like relief, commanding
the defendant to comply with the provisions of this section or
regulations prescribed under this section, including the requirement
that the defendant take such action as is necessary to remove the
danger of such violation. Upon a proper showing, a permanent or
temporary injunction or restraining order shall be granted without
bond.
(3) RIGHTS OF COMMISSION.—The State shall serve prior written
notice of any such civil action upon the Commission and provide the
Commission with a copy of its complaint, except in any case where
such prior notice is not feasible, in which case the State shall
serve such notice immediately upon instituting such action. The
Commission shall have the right
(A) to intervene in the action,
(B)
upon so intervening, to be heard on all matters arising therein, and
(C) to file petitions for appeal.
(4) VENUE; SERVICE OF PROCESS.—Any
civil action brought under this subsection in a district court of
the United States may be brought in the district wherein the
defendant is found or is an inhabitant or transacts business or
wherein the violation occurred or is occurring, and process in such
cases may be served in any district in which the defendant is an
inhabitant or where the defendant may be found.
(5) INVESTIGATORY
POWERS.—For purposes of bringing any civil action under this
subsection, nothing in this section shall prevent the attorney
general of a State, or an official or agency designated by a State,
from exercising the powers conferred on the attorney general or such
official by the laws of such State to conduct investigations or to
administer oaths or affirmations or to compel the attendance of
witnesses or the production of documentary and other evidence.
(6)
EFFECT ON STATE COURT PROCEEDINGS.—Nothing contained in this
subsection shall be construed to prohibit an authorized State
official from proceeding in State court on the basis of an alleged
violation of any general civil or criminal statute of such State.
(7) LIMITATION.—Whenever the Commission has instituted a civil
action for violation of regulations prescribed under this section,
no State may, during the pendency of such action instituted by the
Commission, subsequently institute a civil action against any
defendant named in the Commission's complaint for any violation as
alleged in the Commission's complaint.
(8)
DEFINITION.—As used in this subsection, the term “attorney general”
means the chief legal officer of a State.
(g) JUNK FAX ENFORCEMENT REPORT.—The Commission shall submit an
annual report to Congress regarding the enforcement during the past
year of the provisions of this section relating to the sending of
unsolicited advertisements to telephone facsimile machines, which
report shall include—
(1) the number of complaints received by the
Commission during such year alleging that a consumer received an
unsolicited advertisement via telephone facsimile machine in
violation of the Commission’s rules;
(2) the number of citations
issued by the Commission pursuant to section 503 during the year to
enforce any law, regulation, or policy relating to sending of
unsolicited advertisements to telephone facsimile machines;
(3) the
number of notices of apparent liability issued by the Commission
pursuant to section 503 during the year to enforce any law,
regulation, or policy relating to sending of unsolicited
advertisements to telephone facsimile machines;
(4) for each notice
referred to in paragraph (3)—
(A) the amount of the proposed
forfeiture penalty involved;
(B) the person to whom the notice was
issued;
(C) the length of time between the date on which the
complaint was filed and the date on which the notice was issues; and
(D) the status of the proceeding;
(5) the number of final orders
imposing forfeiture penalties issues pursuant to section 503 during
the year to enforce any law, regulation, or policy relating to
sending of unsolicited advertisements to telephone facsimile
machines;
(6) for each forfeiture order referred to in paragraph (5)—
(A) the amount of the penalty imposed by the order;
(B) the
person to whom the order was issued;
(C) whether the forfeiture
penalty has been paid; and
(D) the amount paid;
(7) for each case in
which a person has failed to pay a forfeiture penalty imposed by
such a final order, whether the Commission referred such matter for
recovery of the penalty; and
(8) for each case in which the Commission referred such an order for
recovery—
(A) the number of days from the date the Commission issued
such order to the date of such referral;
(B) whether an action has
been commenced to recover the penalty, and if so, the number of days
from the date the Commission referred such order for recovery to the
date of such commencement; and
(C) whether the recovery action
resulted in collection of any amount, and if so, the amount
collected.
This summary of the
Telephone Consumer Protection Act (47 U.S.C. § 227) is provided for
convenience only. Individuals should also refer to the United States
Code at http://www.gpoaccess.gov.
|
FCC: TCPA-Rules
(PDF) |
