Glossary of terms of the Telephone Consumer Protection Act (TCPA)

Legal Disclaimer:
The article is for informational purposes only and does not provide legal advice. Information on this website are published by Kimoby to provide your business with free information regarding the laws and policies described. While Kimoby provides a communications platform built with compliance in mind, you should contact an attorney before sending a text message marketing campaign for your business. You should also consult with legal professionals regarding any questions or advice you may have about the Telephone Consumer Protection Act.

What makes any regulation challenging to interpret is often the difficulty to understand the vocabulary and acronyms used in the legal texts. The objective of this post is to explain the keywords of the Telephone Consumer Protection Act (TCPA) as well as the principal agencies and institutions involved.

Before we dive into the definition of the terms, let’s review the purpose of the TCPA

The TCPA is the Telephone Consumer Protection Act that was passed by the United States Congress and signed in 1991. This federal law is an amendment of the Communications Act of 1934. It went into effect in December 1992. Since then, the rules were updated several times due to consumer complaints about unwanted pre-recorded telemarketing calls and texts.

Overall, the TCPA restricts telemarketing calls, telephone solicitations and the use of automated telephone equipment, such as automated dialing machines, types of voice messages, and fax and text messages.

The TCPA:

  • Requires the senders always identify themselves and respect the legal periods in which they can send emails or text messages
  • Requires creation of a national Do-Not-Call registry, effective since 2003 and administered by the Federal Trade Commission (FTC)
  • Requires telemarketers to obtain prior expressed written consent from consumers before robocalling them or sending them any marketing text messages
  • No longer allows telemarketers to use an established business relationship to avoid getting consent from consumers with their home phones
  • Requires telemarketers to provide an automated, interactive opt-out mechanism during each robocall so that consumers can immediately tell the telemarketer to stop calling.

There are several restrictions on telemarketing, telephone solicitation and fax advertising.

Essential definitions and acronyms

What agencies and institutions are concerned by the TCPA?

FCC

The Federal Communications Commission (FCC) regulates interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia and U.S. territories. An independent U.S. government agency overseen by Congress, the Commission is the federal agency responsible for implementing and enforcing America’s communications law and regulations.

FTC

The Federal Trade Commission (FTC) is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act. Its principal mission is the promotion of consumer protection and the elimination and prevention of anti-competitive business practices, such as coercive monopoly.

CTIA

CTIA represents the U.S. wireless communications industry and companies throughout the mobile ecosystem. From carriers and equipment manufacturers to mobile app developers and content creators, they bring together a dynamic group of companies that enable consumers to lead a 21st Century connected life.

MMA

The MMA is the world’s leading global non-profit trade mobile marketing association comprised of more than 800 member companies, from nearly fifty countries around the world. Their members hail from every faction of the mobile marketing ecosystem including brand marketers, agencies, mobile technology platforms, media companies, operators and others. The MMA’s mission is to accelerate the transformation and innovation of marketing through mobile, driving business growth with closer and stronger consumer engagement. Anchoring the MMA’s mission are four core pillars: to cultivate inspiration by driving the innovation for the Chief Marketing Officer; to build the mobile marketing capabilities for the marketing organizations through fostering know-how and confidence; to champion the effectiveness and impact of mobile through research providing tangible ROI measurement; and advocacy.

Definition of the TCPA’s main terms

ATDS

An automatic telephone dialing system (ATDS) is a piece of telecommunication equipment, electronic device or software, can store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers. It is also called an auto-dialer or a robocall. Robocalls can reach a large number of people quickly which makes them very interesting to political parties, telemarketing agencies, businesses, and scammers.

The use of ATDS has increased so much over the past years, that the FCC has pushed the industry to implement ways to improve the consumers’ protection and stop unwanted robocalls and texts. Learn more by reading the FCC report on Robocalls published in February 2019.

Telemarketing

Telemarketing is the direct marketing process that consists in a salesperson contacting, qualifying, and canvassing potential customers to sell them goods or services through telephone calls, and follow up with face to face or web conferencing appointments scheduled during the call. It is also called a telephone solicitation.

Under the TCPA, a message is characterized as telemarketing or marketing if it is issued to encourage the purchase or rental of, or investment in, property, goods, or services.

Established business relationship

The term an established business relationship for purposes of telephone solicitations means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration.
This relationship is established:

  • On the basis of the subscriber's purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or
  • On the basis of the subscriber's inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.

What is spam?

Spam refers to unsolicited or unwanted messages sent to a large number of recipients by means of emails, and phone. However, the definition may vary according to one jurisdiction to another.

Opt-out

To comply with the TCPA’s regulation, you must offer the recipient a way to unsubscribe to your messages. This process is what is called opt-out. It refers to any method individuals use to avoid receiving unsolicited messages as part of a direct marketing campaign.

Unsolicited advertisement

This term 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.

Prior express consent

This term refers to an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.

Now we have a better understanding of the terminology used in the field of the TCPA, we can deep dive into its principles in our blog post Telephone Consumer Protection Act (TCPA) Frequently Asked Questions.

Sources

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