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Federal Deception Law: 6.3.4.7 Autodialer Definitions Under State Laws

Many states have their own laws that prohibit autodialed calls. A number of these laws define the term “autodialer” to require that the numbers be automatically dialed and that the call use an artificial or prerecorded voice, so are narrower than the TCPA. Some state laws do not have strong substantive restrictions and some do not offer a private cause of action. However, it may be possible to construe a few of them to prohibit autodialed calls more broadly than the TCPA and to provide a private cause of action.

Federal Deception Law: 6.3.5.1 Emergency Calls

The statute exempts calls made for emergency purposes from the requirement of prior express consent.293 An FCC rule defines “emergency purposes” as “calls made necessary in any situation affecting the health and safety of consumers.”294

Federal Deception Law: 6.3.5.2.1 The FCC’s limited exemption authority

The FCC’s authority to create exemptions beyond those set forth in the statute is narrow, confined to calls that are not charged to the called party and subject to conditions prescribed by the FCC to protect privacy.304 A call is not free to the end user if it counts against the limits on minutes or texts on the recipient’s cell phone plan.305 There is no exclusion for calls when the caller has an established business relationship

Federal Deception Law: 6.3.5.2.3 Calls regarding package delivery

In 2014, the FCC created an exemption, with certain conditions, for delivery notifications by carriers such as UPS attempting to deliver parcels.309 Among the conditions are a requirement that the notifications be free to the consumer—including not being counted against the consumer’s plan limits on minutes or texts—and give the consumer information about how to opt out.

Federal Deception Law: 6.3.5.2.4 Calls regarding collect calls from prison inmates

In 2015, the FCC adopted a limited exception for up to three free-to-end-user messages sent by telecommunications providers that ask if the called party wants to set up an account to receive a collect call from a prison inmate.313 Prior to the adoption of this exception, a court refused to dismiss a claim that a carrier violated the TCPA by making a prerecorded call to a consumer, asking her if she wanted to accept a collect call initiated by a third party.314 Since the carrier had initiated a s

Federal Deception Law: 6.3.6.1.4 Exceptions to the requirement of prior express written consent

There are two exceptions to the current requirement of prior express written consent for autodialed or prerecorded telemarketing calls to cell phones and other sensitive numbers. First, if the call is by or on behalf of a tax-exempt nonprofit, the caller’s prior express consent is required, but the consent need not be written.378 However, if the nonprofit caller is promoting a commercial party’s products, prior express consent is necessary.379

Federal Deception Law: 6.5.3.2.2 FCC nationwide do-not-call rule applies to “telephone solicitations”; comparison to company-specific do-not-call rule

The FCC’s nationwide do-not-call rule applies to any “telephone solicitation.”759 This term is defined as “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,” with exceptions for calls with the called party’s prior express invitation or permission, calls to parties with whom the caller has an established business relationship, or calls by or on behal

Federal Deception Law: 6.4.1 Introduction

The TCPA prohibits placing a call that uses an artificial or prerecorded voice to a residential telephone line without the called party’s prior express consent.628 When Congress adopted this provision, it found that:

Federal Deception Law: 6.5.3.3.3 Calls to businesses; personal relationships

The FTC’s Telemarketing Sales Rule exempts calls to businesses815 (with a partial exception for “toner phoner” calls).816 The FCC rule is limited to “residential telephone subscribers,”817 but the FCC has declined to interpret the rule to exclude home-based businesses.818 Whether a call to a home phone number that is also used for business purposes is a call to a “residential telephone subscriber,” as

Federal Deception Law: 6.5.3.4 Operation of the Do-Not-Call Rules

The FCC’s do-not-call rule prohibits any telephone solicitation to a residential telephone subscriber whose number is registered on the national do-not-call list.861 Similarly, the FTC’s Telemarketing Sales Rule (TSR) provides that it is an abusive telemarketing practice for a telemarketer to initiate, or for a seller to cause a telemarketer to initiate, an outbound telephone call to a person whose telephone number is registered on the list.862

Federal Deception Law: 6.8.3.1.5 Surveys

A true survey may not be an advertisement.1057 Nonetheless, the FCC has held that “[t]he TCPA’s definition of ‘unsolicited advertisement’ applies to any communication that advertises the commercial availability or quality of property, goods or services, even if the message purports to be conducting a survey.”1058 A number of decisions have followed this common sense ruling, holding that a fax that pitches a product or service in the guise of conducting a survey or providing information about

Federal Deception Law: 6.4.2.1 Scope

The TCPA’s prohibition applies to calls to “any residential telephone line.”639 A residential line that is also used for a home-based business can fall within this prohibition.640 An Eleventh Circuit decision suggests in dicta that a cell phone does not qualify as a residential line.641 In addition, the FCC’s Consumer and Governmental Affairs Bureau

Federal Deception Law: 6.5.2.2 FCC Company-Specific Do-Not-Call Rule

Like the FTC’s rule, the FCC’s company-specific do-not-call rule requires persons or other entities that make telemarketing calls725 to maintain company-specific do-not-call lists and honor do-not-call requests.726 “Telemarketing” is defined as “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 t