Telephone Consumer Protection Act (TCPA) FAQs for Insurance Agents
Q. What is the Telephone Consumer Protection Act?
A. The Telephone Consumer Protection Act, or TCPA, is a federal consumer privacy law. It regulates telephone calls to landlines and mobile phones, facsimiles, and text messages. The TCPA applies to calls to both individuals and businesses, including telemarketing calls and calls made for other business purposes, like informational calls. The legal requirements are more restrictive for certain types of calls, such as prerecorded calls, artificial voices, SMS text messages, and calls made to mobile phones.
Q. Why do producers need to comply with the requirements of the TCPA?
A. The TCPA applies to any businesses making outbound calls, faxes, or text messages. Violations of the TCPA are subject to lawsuits with damage awards of $500 to $1,500 for each individual call, text, or fax. There is no statutory cap on these damages. In 2014, a TCPA lawsuit settlement involving a credit card issuer totaled $75.5 million. In addition, the Federal Trade Commission (FTC), Federal Communications Commission (FCC), and state attorneys general, as well as other enforcement agencies, can enforce violations of the TCPA.
Q. When do producers need consent from the recipient to make a call to a landline (such as a residential or business line)?
A. If a call to a landline uses an artificial or prerecorded voice and is a telemarketing message, you must have the recipient’s prior express written consent.
If a call to a landline does not use an artificial or prerecorded voice in whole or in part consent is not required. Or, if a call to a landline does not include a telemarketing message in whole or in part, no consent is required.
Q. When does a producer need consent from the recipient to make a call to a mobile or cellular phone?
A. It depends on whether the call is for a telemarketing or informational purpose.
If a call to a mobile or cellular phone contains a telemarketing message and uses an artificial or prerecorded voice, you must have the recipient’s prior express written consent. Similarly, if a call is a telemarketing message and is placed with an “automatic telephone dialing system,” or ATDS, you must have the recipient’s prior express written consent.
If a call to a mobile or cellular phone does not contain a telemarketing message, but uses an artificial or prerecorded voice or is placed with an ATDS, you must have the recipient’s prior express consent.
Q. When does a producer need consent from the recipient to send a text or SMS message to a mobile or cellular phone?
A. A text message is subject to the same requirements as a prerecorded voice call or a call placed to a mobile phone with an ATDS. In other words, if the text message constitutes telemarketing, the recipient must provide prior express written consent. If the text message does not constitute telemarketing, the text still is subject to prior express consent.
Q. When does a producer need consent from a recipient to send a fax?
A. If the fax constitutes telemarketing, the recipient must provide prior express consent or there must be an “established business relationship” with the recipient. If the fax does not contain any telemarketing content, no consent is required.
Q. How does the TCPA define “telemarketing?”
A. Telemarketing calls include those that offer, market, or promote products or services to consumers or that have a telemarketing purpose. If a call is made to induce the purchase of goods or services, then or in the future, it is a telemarketing call.
The TCPA telemarketing rules apply to both “telemarketing” and “advertisements.” Federal regulations define “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services.” In turn, “telemarketing” 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.”
As a general rule, calls that are not purely informational in purpose and message constitute telemarketing. This means that dual-purpose calls (i.e. calls that have both an informational component and a telemarketing purpose) are telemarketing. Also, even if a consumer is called with a non-telemarketing purpose, once a sales component or upsell is introduced on the call, it becomes a telemarketing call.
Q. What does “prior express written consent” mean?
A. The term “prior express written consent” means an agreement, in writing, bearing the signature of the person called. The agreement must clearly authorize the receipt of advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice. In addition, the agreement must include the telephone number authorized to receive such advertisements or telemarketing messages. For additional information, including the validity of electronic consent and the required contents of a valid, written consent, see the enclosed Manual.
Q. What does “prior express consent” mean?
A. Neither the TCPA nor the FCC Rules expressly define “prior express consent,” but the FCC has ruled that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”
On the basis of this definition, consumers who voluntarily provide their mobile telephone number may be called on their mobile phone for non-telemarketing calls without providing that consent in writing. On the other hand, telephone numbers purchased from a third party (such as a data broker) or the Internet (i.e., Google), do not constitute prior express consent.
Q. What is the “Do Not Call” Registry mentioned in the Attestation and how does it apply to all of this?
A. The National Do Not Call Registry is a list of phone numbers from consumers who have indicated their preference to limit the telemarketing calls they receive. The Registry is managed by the Federal Trade Commission (FTC), the nation’s consumer protection agency. It is enforced by the FTC, the Federal Communications Commission (FCC), and state officials.
The DNC Registry applies to any telemarketing call, including telemarketers who solicit consumers on behalf of third-party sellers. It is against the law to call any number on the National DNC Registry unless the consumer agreed in writing to receive calls placed by or on behalf of the seller or unless there is an existing business relationship with the consumer.
It is also against the law to call any person whose number is within a given area code unless the telemarketer has paid the annual fee for access to the portion of the National DNC Registry that includes telephone numbers within that area code. If you are required to use the Registry, you have to update your records by comparison with numbers on the Registry at least every 31 days.
To access the DNC Registry, go to www.telemarketing.donotcall.gov. To learn more, the FTC maintains an FAQ website for telemarketers at https://www.ftc.gov/tips-advice/business-center/guidance/qa-telemarketers-sellers-about-dnc-provisions-tsr.
Q. For calls and texts to mobile phones, what is an automatic telephone dialing system or ATDS?
A. TCPA regulations define an ATDS as “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.”
The FCC has declared that predictive dialers are “automatic telephone dialing systems.”
If the dialing platform in use has the “capacity” to store/produce numbers in random or sequential order, whether utilized or not and has the “capacity” to dial without human intervention, whether utilized or not, it is generally considered an ATDS. As a result, nearly all modern phones or dialing platforms are an ATDS.
Q. Are there other requirements to the TCPA of which producers should be aware?
A. Yes. This Frequently Asked Questions document is merely an introduction to the TCPA. You must familiarize yourself with and ensure your organization and employees’ compliance with all of its requirements. Among those requirements are restrictions or prohibitions on outreach to numbers registered with the TCPA’s National Do-Not-Call Registry, Opt-Out Requirements for recipients, recordkeeping rules, and restrictions on the times of day and frequency with which telephone calls, text messages and/or faxes may be initiated.
Q. In addition to the TCPA, are there other laws with which producers are required to comply?
A. Yes. There are additional federal laws governing outreach to consumers, such as the CAN-SPAM Act, which regulates both text messages and emails. Further, there may be state laws applicable in a particular state, which may also regulate telephone calls, text messages, and faxes in a manner that is more restrictive than the TCPA.
Q. How can I learn more? What if I have questions?
A. For any questions about your legal obligations under the TCPA or other telemarketing laws, you should consult your lawyer. In addition, the FCC publishes guidance at https://www.fcc.gov/general/telemarketing-and-robocalls.