tations, without the need to file suit. A DNC request can be included on outgo- ing answering machine messages, and should specifically request no further calls, as opposed to simply requesting to be taken off a list.
Are Hang-up Calls Illegal Under The TCPA? Even more annoying to many people
are those telemarketing calls when the phone rings, but the phone disconnects by the time you run from whatever you were doing to answer the phone, and caller ID is blocked or unavailable. These hang- up calls, also known as “abandons,” are a result of sophisticated automated dialing equipment and computer systems known as “predictive dialers” which pre-set a de- liberate abandonment rate.
These calls
are illegal under the TCPA because they do not identify the caller. The FCC’s regulations promulgated pursuant to the TCPA require that “[a] person or entity making a telephone so- licitation must provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a tele- phone number or address at which the person or entity may be contacted.”12
A
“telephone solicitation” is defined in per- tinent part as “the initiation of a telephone call or message for the purpose of encour- aging the purchase or rental of, or investment in, property, goods, or ser- vices…”13
Thus, a telemarketing call does not have to be completed, only initiated, to constitute a “telephone solicitation.” Violations of the FCC’s identification regulations are actionable by private citi- zens.14
TCPA Restrictions on Prerecorded Solicitations The TCPA effectively bans an “unso- licited advertisement”15
delivered by an
artificial or prerecorded voice, prohibit- ing even the initiation of these telephone
calls.16
Absent express prior consent, these
restrictions on artificial or prerecorded calls apply to any person within the U.S. The ban on prerecorded voice messages includes exemptions for calls made for an emergency purpose, calls not made for a commercial purpose (i.e. political mes- sages), calls made for a commercial purpose but that do not include the trans- mission of any unsolicited advertisement (i.e. a debt collector call, or a store leav- ing a prerecorded message that your order has been received), calls to a person with whom the called party has an established business relationship at the time the call is made, and calls made from a caller that is a tax-exempt nonprofit organization.17 However, all artificial or prerecorded voice messages, including those otherwise ex- empt from the ban, must clearly identify
16
47 U.S.C. § 227(b)(1)(B): “It shall be un- lawful for any person within the United States . . . to initiate any telephone call to any residential telephone line using an arti- ficial or prerecorded voice to deliver a mes- sage 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).”
1747 C.F.R. §64.1200(c). 20
the business, individual, or other entity initiating the call, and state clearly the telephone number or address of the en- tity.18
TCPA Restrictions On “Junk Faxes” The TCPA bans “unsolicited advertise-
ments” sent to a “telephone facsimile machine”19
- i.e. “junk faxes.” The junk
fax ban is stronger than the TCPA’s re- strictions on telemarketing solicitations. Congress was particularly concerned about the cost-shifting effect of unsolic- ited fax advertisements, and therefore extended the ban on junk faxes to busi- ness as well as residential telephone lines.20
(Continued on page 12)
18 19
47 U.S.C. § 227(d)(3)(A).
The TCPA’s definition of “telephone facsimile machine” is very broad: “equipment which has the capacity (A) to transcribe text or im- ages, or both, from paper into an electronic signal and to transmit that signal over a regu- lar telephone line, or (B) to transcribe text or images (or both) from an electronic sig- nal received over a regular telephone line onto paper.” 47 U.S.C. § 227(a)(2). Many argue that the TCPA prohibits sending junk faxes to computers or to internet addresses through computer modem boards. 47 U.S.C. § 227(b)(1)(C).
1247 C.F.R. § 64.1200(e)(2)(iv). 13
14 15
47 U.S.C. § 227(a)(3). 47 U.S.C. § 227(c)(5)(A).
The TCPA defines “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any per- son without that person’s prior express invi- tation or permission.” 47 U.S.C. § 227(a)(4).
Winter 2003 Trial Reporter 11
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