FCC Implements New TCPA Restrictions

Beginning next week, the Federal Communication Commission (“FCC”) will implement new restrictions on telemarketing calls and text messages to strengthen consumer protection. Specifically the change to the Telephone Consumer Protection Act (“TCPA”) will require businesses to obtain “prior express written consent” before placing prerecorded calls to residential lines and cell phones. Additionally, the amendment also applies to text messages because those are “a form of communication used primarily between telephones and is therefore consistent with the definition of a ‘call.'”

While “robocallers” can no longer place unsolicited calls, wireless carriers are still free to do as long as customers are not charged. Moreover, healthcare organizations, emergency calls, charities, and political groups are exempted from the ban.

Telemarketing companies are urged to comply with the amendment as penalties range from $500 to $1,500 per communication.

Understanding the TCPA and Its Enforcement Implications

The Telephone Consumer Protection Act, 47 U.S.C. § 227, is one of the most actively litigated federal statutes in the country. Its combination of statutory damages — $500 per violation and up to $1,500 for willful violations — and the availability of class action treatment makes TCPA claims enormously valuable for plaintiffs’ attorneys. A business that sends 100,000 unsolicited text messages without proper consent faces potential statutory exposure of $50 million to $150 million. Even a small marketing campaign sent without compliant consent documentation can generate ruinous class action liability.

The FCC rule amendment described above — requiring “prior express written consent” for prerecorded calls and texts to wireless numbers — was a significant tightening of the prior standard, which had allowed “prior express consent” without the written requirement. Understanding exactly what the TCPA requires is essential for any business that uses telephone or text message marketing.

What the TCPA Covers

The TCPA regulates three main types of communications:

• Autodialed calls and texts. Calls or texts made using an automatic telephone dialing system (ATDS) to wireless numbers require prior express written consent if the call includes an advertisement or constitutes telemarketing.
• Prerecorded or artificial voice calls. Calls to any number (residential or wireless) that use a prerecorded or artificial voice message require prior express written consent for marketing calls.
• Fax transmissions. Unsolicited fax advertisements to a fax machine or computer fax modem require prior express invitation or permission.

What Constitutes “Prior Express Written Consent”

The FCC’s 2012 rules define prior express written consent as an agreement, in writing, bearing the signature of the person called, that clearly authorizes the seller to deliver or cause to be delivered advertisements or telemarketing messages using an autodialer or prerecorded voice. The written consent must include the telephone number to which the signatory authorizes delivery of messages.

This definition has generated substantial litigation over: (1) whether electronic consent mechanisms satisfy the “writing” requirement (they do, under the E-SIGN Act); (2) whether a consumer’s provision of a telephone number on a purchase form constitutes consent to receive marketing texts (courts have divided on this); and (3) whether a third party who collects and sells consent lists can serve as the consumer’s agent for consent purposes (the FCC’s 2024 one-to-one consent rule, which took effect in January 2025, significantly restricted this practice).

Exemptions from the TCPA Consent Requirements

The TCPA contains several important exemptions from the consent requirements:

• Informational calls. Non-marketing informational calls — appointment reminders, account alerts, prescription notifications, and similar communications — are exempt from the prior express written consent requirement, though they must still comply with the “prior express consent” standard for autodialed calls to wireless numbers.
• Emergency calls. Calls made for emergency purposes are exempt.
• Calls to landlines. Prerecorded marketing calls to residential landlines require only that the called party be given the opportunity to opt out; they do not require prior express written consent.
• Calls to businesses. Calls to business telephone lines are generally exempt from TCPA restrictions on autodialed calls and prerecorded messages.
• Healthcare messages. HIPAA-covered healthcare providers calling their patients for healthcare-related messages receive limited exemptions.
• Calls by or on behalf of tax-exempt nonprofits. Calls by nonprofits to their members and donors receive more favorable treatment.

TCPA Compliance Best Practices

For businesses that use telephone marketing, text message campaigns, or automated customer communications, TCPA compliance is not optional. The following practices are essential:

1. Obtain and document consent before texting or calling. Use opt-in mechanisms that produce a clear, auditable record of each consumer’s consent, including the date, time, and specific telephone number for which consent was given.
2. Maintain and honor opt-out requests. Honor STOP responses to text messages immediately. Maintain a suppression list and honor Do-Not-Call registry requirements.
3. Audit your autodial system. The definition of ATDS continues to evolve following the Supreme Court’s decision in Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), which narrowed the definition to systems that use a random or sequential number generator. Review your technology against the current legal standard.
4. Implement a compliance program. Assign responsibility for TCPA compliance, train marketing staff, and conduct periodic audits of consent documentation and calling practices.
5. Consult counsel before launching a new campaign. New marketing channels — particularly new text messaging campaigns — should be reviewed by legal counsel for TCPA compliance before launch.

TCPA class actions are frequently resolved for substantial monetary settlements. The risk is real, and compliance is achievable with proper legal guidance. Businesses that invest in TCPA compliance programs avoid the class action exposure that has cost other companies hundreds of millions of dollars.

If you have questions about privacy law or regulatory compliance, contact the attorneys at Revision Legal. Call us at 855-473-8474 or complete our contact form.

Recent TCPA Developments Worth Knowing

The TCPA landscape has continued to evolve since the FCC’s 2012 rule amendments. The Supreme Court’s decision in Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), narrowed the definition of an automatic telephone dialing system (ATDS), holding that a device must use a random or sequential number generator to store or produce numbers to qualify as an ATDS. This decision reduced exposure for companies using modern messaging platforms that send texts to known numbers without random number generation, but left many questions open about specific technologies.

The FCC’s 2024 one-to-one consent rule, effective January 2025, significantly restricts the practice of obtaining a single consent that authorizes calls from multiple unrelated companies. Under the new rule, each seller must obtain its own prior express written consent — shared consent lists sold by lead generators are no longer sufficient. Businesses that relied on purchased consent lists must overhaul their consent practices to comply.

Given the complexity and continuing evolution of TCPA compliance requirements, businesses using telephone or text message marketing should consult with legal counsel before launching new campaigns. The penalty exposure — $500 to $1,500 per communication, with class action exposure potentially in the hundreds of millions — makes TCPA compliance one of the most important regulatory risks for consumer-facing businesses.

Contact the internet lawyers at Revision Legal with questions about internet law or website compliance. Call 855-473-8474 or complete our contact form.