The
Telephone Consumer Protection Act of 1991
Title 47, Chapter 5, Subchapter II - Common Carriers
227. Restrictions on use of telephone equipment
- Definitions As used in this section -
- The term "automatic telephone dialing system" means equipment
which has the capacity -
- to store or produce telephone numbers to be called,
using a random or sequential number generator; and
- to dial such numbers.
- The term "telephone facsimile machine" means equipment which has
the capacity
- to transcribe text or images, or both, from paper into
an electronic signal and to transmit that signal over a regular
telephone line, or
- to transcribe text or images (or both) from an
electronic signal received over a regular telephone line onto paper.
- The term "telephone solicitation" 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, but such term does not include a call or
message
- to any person with that person's prior express
invitation or permission,
- to any person with whom the caller has an established
business relationship, or
- by a tax exempt nonprofit organization.
- The term "unsolicited advertisement" 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.
- Restrictions on use of automated telephone equipment
- Prohibitions It shall be unlawful for any person within the United
States -
- to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called party)
using any automatic telephone dialing system or an artificial or
prerecorded voice -
- to any emergency telephone line (including any "911"
line and any emergency line of a hospital, medical physician or
service office, health care facility, poison control center, or
fire protection or law enforcement agency);
- to the telephone line of any guest room or patient
room of a hospital, health care facility, elderly home, or similar
establishment; or
- to any telephone number assigned to a paging service,
cellular telephone service, specialized mobile radio service, or
other radio common carrier service, or any service for which the
called party is charged for the call;
- to initiate any telephone call to any residential
telephone line using an artificial or prerecorded voice to deliver a
message without the prior express consent of the called party,
unless the call is initiated for emergency purposes or is exempted
by rule or order by the Commission under paragraph (2)(B);
- to use any telephone facsimile machine, computer, or
other device to send an unsolicited advertisement to a telephone
facsimile machine; or
- 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.
- Regulations; exemptions and other provisions The Commission shall
prescribe regulations to implement the requirements of this
subsection. In implementing the requirements of this subsection, the
Commission -
- shall consider prescribing regulations to allow
businesses to avoid receiving calls made using an artificial or
prerecorded voice to which they have not given their prior express
consent;
- may, by rule or order, exempt from the requirements of
paragraph (1)(B) of this subsection, subject to such conditions as
the Commission may prescribe -
- calls that are not made for a commercial purpose; and
- such classes or categories of calls made for
commercial purposes as the Commission determines -
- will not adversely affect the privacy rights that
this section is intended to protect; and
- do not include the transmission of any unsolicited
advertisement; and
- may, by rule or order, exempt from the requirements of
paragraphs (FOOTNOTE 1) (1)(A)(iii) of this subsection calls to a
telephone number assigned to a cellular telephone service that are
not charged to the called party, subject to such conditions as the
Commission may prescribe as necessary in the interest of the privacy
rights this section is intended to protect. (FOOTNOTE 1) So in
original. Probably should be "paragraph".
- Private right of action A person or entity may, if otherwise
permitted by the laws or rules of court of a State, bring in an
appropriate court of that State -
- an action based on a violation of this subsection or
the regulations prescribed under this subsection to enjoin such
violation,
- an action to recover for actual monetary loss from such
a violation, or to receive $500 in damages for each such violation,
whichever is greater, or
- both such actions. If the court finds that the
defendant willfully or knowingly violated this subsection or the
regulations prescribed under this subsection, the court may, in its
discretion, increase the amount of the award to an amount equal to
not more than 3 times the amount available under subparagraph (B) of
this paragraph.
- Protection of subscriber privacy rights
- Rulemaking proceeding required Within 120 days after December 20,
1991, the Commission shall initiate a rulemaking proceeding concerning
the need to protect residential telephone subscribers' privacy rights
to avoid receiving telephone solicitations to which they object. The
proceeding shall -
- compare and evaluate alternative methods and procedures
(including the use of electronic databases, telephone network
technologies, special directory markings, industry-based or
company-specific "do not call" systems, and any other alternatives,
individually or in combination) for their effectiveness in
protecting such privacy rights, and in terms of their cost and other
advantages and disadvantages;
- evaluate the categories of public and private entities
that would have the capacity to establish and administer such
methods and procedures;
- consider whether different methods and procedures may
apply for local telephone solicitations, such as local telephone
solicitations of small businesses or holders of second class mail
permits;
- consider whether there is a need for additional
Commission authority to further restrict telephone solicitations,
including those calls exempted under subsection (a)(3) of this
section, and, if such a finding is made and supported by the record,
propose specific restrictions to the Congress; and
- develop proposed regulations to implement the methods
and procedures that the Commission determines are most effective and
efficient to accomplish the purposes of this section.
- Regulations Not later than 9 months after December 20, 1991, the
Commission shall conclude the rulemaking proceeding initiated under
paragraph (1) and shall prescribe regulations to implement methods and
procedures for protecting the privacy rights described in such
paragraph in an efficient, effective, and economic manner and without
the imposition of any additional charge to telephone subscribers.
- Use of database permitted The regulations required by paragraph
(2) may require the establishment and operation of a single national
database to compile a list of telephone numbers of residential
subscribers who object to receiving telephone solicitations, and to
make that compiled list and parts thereof available for purchase. If
the Commission determines to require such a database, such regulations
shall -
- specify a method by which the Commission will select an
entity to administer such database;
- require each common carrier providing telephone
exchange service, in accordance with regulations prescribed by the
Commission, to inform subscribers for telephone exchange service of
the opportunity to provide notification, in accordance with
regulations established under this paragraph, that such subscriber
objects to receiving telephone solicitations;
- specify the methods by which each telephone subscriber
shall be informed, by the common carrier that provides local
exchange service to that subscriber, of (i) the subscriber's right
to give or revoke a notification of an objection under subparagraph
(A), and (ii) the methods by which such right may be exercised by
the subscriber;
- specify the methods by which such objections shall be
collected and added to the database;
- prohibit any residential subscriber from being charged
for giving or revoking such notification or for being included in a
database compiled under this section;
- prohibit any person from making or transmitting a
telephone solicitation to the telephone number of any subscriber
included in such database;
- specify (i) the methods by which any person desiring to
make or transmit telephone solicitations will obtain access to the
database, by area code or local exchange prefix, as required to
avoid calling the telephone numbers of subscribers included in such
database; and (ii) the costs to be recovered from such persons;
- specify the methods for recovering, from persons
accessing such database, the costs involved in identifying,
collecting, updating, disseminating, and selling, and other
activities relating to, the operations of the database that are
incurred by the entities carrying out those activities;
- specify the frequency with which such database will be
updated and specify the method by which such updating will take
effect for purposes of compliance with the regulations prescribed
under this subsection;
- be designed to enable States to use the database
mechanism selected by the Commission for purposes of administering
or enforcing State law;
- prohibit the use of such database for any purpose other
than compliance with the requirements of this section and any such
State law and specify methods for protection of the privacy rights
of persons whose numbers are included in such database; and
- require each common carrier providing services to any
person for the purpose of making telephone solicitations to notify
such person of the requirements of this section and the regulations
thereunder.
- Considerations required for use of database method If the
Commission determines to require the database mechanism described in
paragraph (3), the Commission shall -
- in developing procedures for gaining access to the
database, consider the different needs of telemarketers conducting
business on a national, regional, State, or local level;
- develop a fee schedule or price structure for recouping
the cost of such database that recognizes such differences and -
- reflect the relative costs of providing a national,
regional, State, or local list of phone numbers of subscribers who
object to receiving telephone solicitations;
- reflect the relative costs of providing such lists on
paper or electronic media; and
- not place an unreasonable financial burden on small
businesses; and
- consider
- whether the needs of telemarketers operating on a
local basis could be met through special markings of area white
pages directories, and
- if such directories are needed as an adjunct to
database lists prepared by area code and local exchange prefix.
- Private right of action A person who has received more than one
telephone call within any 12-month period by or on behalf of the same
entity in violation of the regulations prescribed under this
subsection may, if otherwise permitted by the laws or rules of court
of a State bring in an appropriate court of that State -
- an action based on a violation of the regulations
prescribed under this subsection to enjoin such violation,
- an action to recover for actual monetary loss from such
a violation, or to receive up to $500 in damages for each such
violation, whichever is greater, or
- both such actions. It shall be an affirmative defense
in any action brought under this paragraph that the defendant has
established and implemented, with due care, reasonable practices and
procedures to effectively prevent telephone solicitations in
violation of the regulations prescribed under this subsection. If
the court finds that the defendant willfully or knowingly violated
the regulations prescribed under this subsection, the court may, in
its discretion, increase the amount of the award to an amount equal
to not more than 3 times the amount available under subparagraph (B)
of this paragraph.
- Relation to subsection (b) The provisions of this subsection shall
not be construed to permit a communication prohibited by subsection
(b) of this section.
- Technical and procedural standards
- Prohibition It shall be unlawful for any person within the United
States -
- to initiate any communication using a telephone
facsimile machine, or to make any telephone call using any automatic
telephone dialing system, that does not comply with the technical
and procedural standards prescribed under this subsection, or to use
any telephone facsimile machine or automatic telephone dialing
system in a manner that does not comply with such standards; or
- to use a computer or other electronic device to send
any message via a telephone facsimile machine unless such person
clearly marks, in a margin at the top or bottom of each transmitted
page of the message or on the first page of the transmission, the
date and time it is sent and an identification of the business,
other entity, or individual sending the message and the telephone
number of the sending machine or of such business, other entity, or
individual.
- Telephone facsimile machines The Commission shall revise the
regulations setting technical and procedural standards for telephone
facsimile machines to require that any such machine which is
manufactured after one year after December 20, 1991, clearly marks, in
a margin at the top or bottom of each transmitted page or on the first
page of each transmission, the date and time sent, an identification
of the business, other entity, or individual sending the message, and
the telephone number of the sending machine or of such business, other
entity, or individual.
- Artificial or prerecorded voice systems The Commission shall
prescribe technical and procedural standards for systems that are used
to transmit any artificial or prerecorded voice message via telephone.
Such standards shall require that -
- all artificial or prerecorded telephone messages
- shall, at the beginning of the message, state clearly
the identity of the business, individual, or other entity
initiating the call, and
- shall, during or after the message, state clearly the
telephone number or address of such business, other entity, or
individual; and
- any such system will automatically release the called
party's line within 5 seconds of the time notification is
transmitted to the system that the called party has hung up, to
allow the called party's line to be used to make or receive other
calls.
- Effect on State law
- State law not preempted Except for the standards prescribed under
subsection (d) of this section and subject to paragraph (2) of this
subsection, nothing in this section or in the regulations prescribed
under this section shall preempt any State law that imposes more
restrictive intrastate requirements or regulations on, or which
prohibits -
- the use of telephone facsimile machines or other
electronic devices to send unsolicited advertisements;
- the use of automatic telephone dialing systems;
- the use of artificial or prerecorded voice messages; or
- the making of telephone solicitations.
- State use of databases If, pursuant to subsection (c)(3) of this
section, the Commission requires the establishment of a single
national database of telephone numbers of subscribers who object to
receiving telephone solicitations, a State or local authority may not,
in its regulation of telephone solicitations, require the use of any
database, list, or listing system that does not include the part of
such single national database (FOOTNOTE 2) that relates to such State.
(FOOTNOTE 2) So in original. Probably should be "database".
- Actions by States
- Authority of States Whenever the attorney general of a State, or
an official or agency designated by a State, has reason to believe
that any person has engaged or is engaging in a pattern or practice of
telephone calls or other transmissions to residents of that State in
violation of this section or the regulations prescribed under this
section, the State may bring a civil action on behalf of its residents
to enjoin such calls, an action to recover for actual monetary loss or
receive $500 in damages for each violation, or both such actions. If
the court finds the defendant willfully or knowingly violated such
regulations, the court may, in its discretion, increase the amount of
the award to an amount equal to not more than 3 times the amount
available under the preceding sentence.
- Exclusive jurisdiction of Federal courts The district courts of
the United States, the United States courts of any territory, and the
District Court of the United States for the District of Columbia shall
have exclusive jurisdiction over all civil actions brought under this
subsection. Upon proper application, such courts shall also have
jurisdiction to issue writs of mandamus, or orders affording like
relief, commanding the defendant to comply with the provisions of this
section or regulations prescribed under this section, including the
requirement that the defendant take such action as is necessary to
remove the danger of such violation. Upon a proper showing, a
permanent or temporary injunction or restraining order shall be
granted without bond.
- Rights of Commission The State shall serve prior written notice of
any such civil action upon the Commission and provide the Commission
with a copy of its complaint, except in any case where such prior
notice is not feasible, in which case the State shall serve such
notice immediately upon instituting such action. The Commission shall
have the right (A) to intervene in the action, (B) upon so
intervening, to be heard on all matters arising therein, and (C) to
file petitions for appeal.
- Venue; service of process Any civil action brought under this
subsection in a district court of the United States may be brought in
the district wherein the defendant is found or is an inhabitant or
transacts business or wherein the violation occurred or is occurring,
and process in such cases may be served in any district in which the
defendant is an inhabitant or where the defendant may be found.
- Investigatory powers For purposes of bringing any civil action
under this subsection, nothing in this section shall prevent the
attorney general of a State, or an official or agency designated by a
State, from exercising the powers conferred on the attorney general or
such official by the laws of such State to conduct investigations or
to administer oaths or affirmations or to compel the attendance of
witnesses or the production of documentary and other evidence.
- Effect on State court proceedings Nothing contained in this
subsection shall be construed to prohibit an authorized State official
from proceeding in State court on the basis of an alleged violation of
any general civil or criminal statute of such State.
- Limitation Whenever the Commission has instituted a civil action
for violation of regulations prescribed under this section, no State
may, during the pendency of such action instituted by the Commission,
subsequently institute a civil action against any defendant named in
the Commission's complaint for any violation as alleged in the
Commission's complaint.
- "Attorney general" defined As used in this subsection, the term
"attorney general" means the chief legal officer of a State.
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