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The Telephone Consumer Protection Act of 1991 ("TCPA")

The TCPA (47 USC 227), and its implementing FCC regulations ( mainly 47 CFR 64.1200) prohibits the transmission via facsimile of any material advertising the commercial availability or quality of any product, service or property to any person without that person's prior express permission or request.

Under the TCPA, recipients of unsolicited fax advertisements can file suit in state court to collect the greater of $500 or actual damages for each violation, and/or obtain an injunction (a single junk fax can, and often does, contain multiple violations). If a court determines that the violations were willful or knowing, the damages can be tripled at the discretion of the court.

The statute works hand-in-hand with the FCC's implementing rules, so a bit of explanation and history is in order.

The TCPA (47 USC 227) is the law passed by Congress in 1991 that establishes the criteria for rules, to be implemented by the Federal Communications Commission (FCC), that prohibit or regulate unsolicited faxed advertisements, automatically dialed calls, prerecorded calls, and live operator telemarketing calls. See also Public Law 102-243 which is the TCPA with the Congressional findings.

The criteria for the rules are in some areas very specific, and in other areas give the FCC some discretion. For example, the TCPA authorized - but did not reuire - the FCC to implement a national do-not-call list. The FCC declined to do that initially, instead opting to implement requirements for company-specific do-not-call lists. Recently, the FCC revisited the issue of a national do-not-call list, and after an additional rulemaking proceeding, revised the rules.

After the initial rulemaking proceeding concluded, the FCC issued its Report & Order Implementing the TCPA in the form of FCC Regulations (47 CFR 64.1200)

In 1995, in response to various motions for clarification and reconsideration, the FCC issued a Memorandum Opinion & Order which provided some clarifications and made a few minor changes to the regulations.

After reopening rulemaking proceedings, on June 26, 2003, the FCC issued a new Order best known for implementing a national do-not-call registry. This led to the current, revised regulations.


Other Parts of the Communications Act with a bearing on the TCPA

Because the TCPA is a part of the Communications Act, there are other provisions of the Communications Act that have a bearing on the TCPA. For example, the definition of "willful" and individual liability of culpable officers, agents, and employees of a corporation are covered in other sections:

Personal Liability of Officers, Agents, and Employees

In construing and enforcing the provisions of this Act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any common carrier or user, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such carrier or user as well as that of the person.'' 47 U.S.C. § 217 (emphasis added).

Sister sites...

  Indispensable TCPA legal research and permanent reporter of TCPA decisions

  Consumer resources relating to telephone solicitation abuses.

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