TCPA Frequently Asked Questions

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.

Before diving into the law itself and its requirement, you may want to get familiar with the words and acronyms used in the TCPA by reading our blog post Glossary of terms of the Telephone Consumer Protection Act (TCPA).

Now you are more familiar with the terminology used in the TCPA, let’s take a look at its principles.

TCPA in few words

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

What are the principal rules callers must follow with telephone solicitation?

  • Telemarketers must obtain the prior expressed written consent of the called person or business, prior to calling to any phone number using an autodialer or prerecorded voice.
  • Any call to a cell phone number that delivers a non-telemarketing message to any phone number using an autodialer or prerecorded voice requires that the caller first obtains the prior expressed consent of the called person or business, either in writing or orally.
  • Telemarketers must provide their name, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that person or entity may be contacted.
  • Telemarketers have to provide the called person with an automated and easy way to opt-out to when sending any pre-recorded telemarketing calls or text messages. This will allow the called person to opt-out of receiving further telemarketing calls or messages.
  • When the caller as an established business relationship with the called person or business or when the called party has given express written consent, calls may be made to numbers on the National Do Not Call Registry (NDNCR).
  • No call should be made to any residential telephone number before 8 a.m. or after 9 p.m. local time.
  • It is prohibited 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.

When does TCPA apply?

This regulation applies to calls to both landlines and mobile phones. However, legal requirements vary according to the types of calls.

They are more restrictive for:

  • Unsolicited telemarketing calls to a landline number delivered through an artificial or prerecorded voice
  • Unsolicited telemarketing and non-telemarketing calls or text messages to a mobile phone number made from a robocall or delivered through an artificial or prerecorded voice (with some limited exceptions like emergency calls)
  • Unsolicited telemarketing calls to a landline number that is listed on the National Do Not Call Registry

Learn more about emergency calls exemptions in the post from Norton Rose Fulbright and about healthcare-related calls exemptions in the Copilevitz & Canter commentary.

To whom does the TCPA apply?

The TCPA regulation applies to any person or businesses within the United States, or any person or business outside the United States if the recipient is within the United States. It applies to individuals and businesses and includes telemarketing calls. The TCPA targets marketers activities such as mass emailing, mass fax campaigns, telemarketing campaigns with some exceptions. The TCPA applies to calls made to both landlines and mobile phone numbers.

Are they exemptions?

Some calls are exempted of TCPA. Here are some of the exemptions that apply for calls:

  • That are manually dialed and do not contain a pre-recorded message
  • Made for emergency purposes
  • Made by or on behalf of tax-exempt nonprofit organization
  • Made by or on behalf of healthcare organizations
  • Made without a commercial purpose, such as informational calls
  • Made for a commercial purpose but does not contain an advertisement or constitute telemarketing

For more details about the existing exemptions, refer to the United States Code Restrictions on use of telephone equipment.

Does the TCPA apply to political parties and non-profit organizations?

The TCPA and the FCC's rules do apply to political campaign-related calls or texts. These restrictions vary based upon whether a call is delivered to a landline telephone, a cell phone, or certain protected telephone lines (e.g., emergency or toll-free lines, or lines serving hospitals or similar facilities).

Such calls are allowed to landlines without the prior express consent of the called party. However, calls of such nature to any mobile phone or mobile device without the prior express consent of the called party is not allowed.

For more information about this specific subject, refers to the FCC article Political Campaigns Robocalls & Robotexts.

Does the TCPA apply to non-profit organizations?

According to Lexology, “Congress and the FCC intentionally distinguished "telephone solicitations" (calls made by for-profit marketers seeking to induce a sale, rental, or investment in goods, services, or property) from calls lacking a commercial purpose or seeking a charitable donation.”

This means that calls made by or on behalf of a non-profit organization are not considered solicitation calls.

What type of express consent do you need to get to send text messages?

Consumer consent is essential under the TCPA and should be a primary focus of any business that communicates with consumers and customers directly via telephony. In order to have the right to send text messages to a mobile phone using an autodialer you have to previously get the consent from the party to whom you send the message.

  • When sending commercial texts, the prior expressed consent must be in writing
  • When sending non-commercial or informational texts (such as those sent by or on behalf of tax-exempt non-profit organizations, those for political purposes, and other noncommercial purposes, such as school closings), the prior expressed consent may be oral

What does the opt-out process consist in?

Telemarketers must offer the recipient a way to unsubscribe to their messages. This process is called opt-out. It refers to any method individuals use to avoid receiving unsolicited messages as part of a direct marketing campaign. In the case of a text message it can be to offer the recipient to opt-out by texting back “STOP.”

The TCPA applied to text messages

Text messaging is also covered under the autodialer definition of the FCC so the TCPA also applies to SMS. Depending on the nature of the text messages, express written consent may not be required. This is the case for informational and transactional texts, in the event that your customers gave you their mobile phone numbers whether in writing or orally. However, your messages shouldn’t contain any marketing or promotional material.

Complying with the TCPA

You should contact an attorney to ensure that your opt-out process is compliant with applicable law and consistent with industry standards.

If you’re a Kimoby customer using text messaging to reach your customers, Learn more by reading our article about TCPA-compliant text messaging.

Now you know what TCPA consists in and what you should do, make sure you have the right tools and use them properly. In today’s world, telecommunication technologies provide a wide range of options to businesses that want to communicate with their customers. However, complying with the TCPA regulation is not an option. Businesses have to make sure the tool they use allows them to be TCPA-compliant as well as carefully plan and implement their campaigns.

If you are not using texting for your business today, you may want to start looking for the best TCPA-compliant solution that will meet with your goals. Take a look at our platform.

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