The Telephone Consumer Protection Act of 1991 (TCPA) was passed by the United States Congress in 1991 and signed into law by President George H. W. Bush as Public Law 102-243, amending the Communications Act of 1934. The current version of the statute is found principally at 47 U.S.C. 227. The TCPA is the primary law in the United States governing the conduct of telephone solicitations, i.e., telemarketing. The TCPA restricts the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages received by cell phones, and the use of fax machines to send unsolicited advertisements. It also specifies several technical requirements for fax machines, autodialers, and voice messaging systems—principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.
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Unless the recipient has given prior express consent, the TCPA and Federal Communications Commission (FCC) rules under the TCPA generally require:
The major limitation of this law as enacted was that it was ineffective at proactively stopping unsolicited calls in that the consumer had to request of each telemarketer to be put onto that telemarketer's do-not-call list. This burden was lifted by the Do-Not-Call Implementation Act's establishment of the National Do Not Call Registry and adoption of the National Do-Not-Call list by the FCC in 2003
The CAN-SPAM Act made a minor amendment to the TCPA to explicitly apply the TCPA to calls and faxes originating from outside the U.S.
The portions of the TCPA related to unsolicited advertising faxes were amended by the Junk Fax Prevention Act of 2005.
The TCPA is a relatively unique statute in that it is a federal law, but suits brought by consumers against violators are generally heard in state courts.[1] This has resulted in a number of court cases addressing this unique provision and there have been divergent opinions from different courts. More recent court decisions have found that at times TCPA cases can be brought in federal courts, for example when there is federal jurisdiction under the Class Action Fairness Act of 2005.
The TCPA's constitutionality was challenged by telemarketers soon after it was enacted. Two cases, Moser v. FCC, 46 F.3d 970 (9th Cir. 1995) cert. denied, 515 U.S. 1161 (1995) and Destination Ventures Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995) effectively settled this issue finding the restrictions in the TCPA were constitutional.
The TCPA was held to regulate unsolicited text messages in the Ninth Circuit.