Telephone Consumer Protection Act (TCPA)

Telephone Consumer Protection Act 47 U.S.C. § 227

SEC. 227. [47 U.S.C. 227] RESTRICTIONS ON THE USE OF TELEPHONE EQUIPMENT

• —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.

• 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;

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(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

This summary of the Telephone Consumer Protection Act (47 U.S.C. § 227) is provided for

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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 taxexempt

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.

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

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(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.

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.

(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;

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(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—

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.

(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.

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

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(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

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.

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.

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convenience only. Individuals should also refer to the United States Code at

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(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

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(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.