Here’s a little TCPAWorld 101 for those who need it.

The Telephone Consumer Protection Act (“TCPA”) is the federal government’s crown jewel response to the robocall epidemic.

It provides huge penalties against companies and individuals that engage in illegal calling or texting practices and can be enforced by numerous government agencies simultaneously, as well as by individual litigants suing in their own names and on behalf of others in class actions.

The TCPA is often abused by litigators and class action attorneys who have turned the TCPA into the biggest litigation cash cow in American history–netting a huge number of large-dollar class settlements.

But what does the TCPA actually cover and what makes it so dangerous?

While the TCPA contains numerous components, the two that are most important for callers to understand are the Regulated Technology provisions (227(b)) and the DNCR provisions (227(c).)

Regulated Technology Provisions (227(b))

The TCPA’s restrictions under 227(b) apply to any calls or texts made using an autodialer (automated telephone dialing system [ATDS]) or any calls made using an artificial, prerecorded, or AI voice (“Regulated Technology”).

Under the TCPA, Regulated Technology can only be deployed to a cellular phone for marketing purposes with prior express written consent.

Regulated Technology can only be deployed to a cellular phone for informational purposes with prior express consent.

Artificial, prerecorded, and AI voice calls to landlines are also restricted and require express written consent if made for marketing purposes or if made in excess of three calls per month for other purposes (although the rule was likely intended to require only the lower level of express consent for non-marketing calls made in excess of three per month. Additionally a greater number of non-consented calls are permitted for healthcare purposes.)

Do Not Call Registry Provisions

The TCPA separately governs calls made to numbers on the national do not call list.

Calls or texts to numbers on the DNC cannot be made for marketing purposes without prior express invitation or permission–which must be in writing–or an established business or personal relationship.

An established business relationship lasts for 90 days following an inquiry by a consumer and 18 months following a transaction with a consumer.

The DNC list only protects residential numbers, but a cellular phone is treated as a residential number for DNC purposes. B2B calls do trigger the DNC where the called number is used for residential purposes–even if it is also used for business purposes at times.

A caller must make two calls in a twelve month period to violate the DNC provisions.

Penalties and Class Litigation 

A violation of the Regulated Technology provisions of the TCPA (227(b)) carries an automatic $500.00 per violation penalty.

A violation of the DNC provisions of the TCPA (227(c)) carriers a penalty of up to $500.00, but there is a good faith defense available to callers.

Each of these penalties can be tripled in the event of a finding of willful or knowing conduct.

Class litigation is common in TCPA cases. Generally TCPA cases cannot be certified where consent was derived from multiple sources. However, TCPA cases are often certified where consent derives from a single source or no consent was obtained for the calls at issue.

The TCPA has a statute of limitations of four years.

Given the high per-call penalties and long statutory lookback, high-volume enterprise callers commonly face damages in excess of hundreds of millions or billions of dollars in TCPA class actions.

Common Compliance Difficulties 

Several definitions are unclear under the statute, leading to difficulties in compliance.

For instance, the definition of ATDS is unclear and may turn on the source code capabilities of a dialing system.

The definition of “marketing” and “solicitation” are also difficult to discern.

The definition of “reasonable” for purposes of revocation is unclear.

Beyond definitional issues, the statute can be extremely difficult to comply with from a practical standpoint.

For instance, the TCPA requires consent of the subscriber or regular user of a phone. This means if a phone number changes hands–or a consumer provides a wrong number–a caller may be strictly liable for calls made to that consumer. (The reassigned numbers database was recently launched to help prevent wrong number calls to reassigned numbers, however.)

Parties who rely on online lead forms often find themselves embroiled in TCPA litigation either because the content of the form does not comply with the statute’s highly-technical consent rules or because a vendor supplied false information.

Callers are also often targeted by litigators who intentionally plant their numbers online using VPN or other services to mask their IP address and then sue for resulting calls.

Last, the statute’s revocation rules empower consumers to demand calls stop in ways that can be difficult to track and implement.

Changes to the TCPA in 2025

Two major sets of changes will take effect in 2025.

First, on January 27, 2025 a new “one-to-one” rule will come into effect that limits the ability of callers to rely on multi-party consents. Once the new rule is in effect Regulated Technology can only be deployed to contact a consumer if the consumer has consented to hear from a single specific “seller.” The consent will also have to be “logically and topically” related to the transaction that lead to the consent. 

Second, on April 11, 2025 the FCC’s new revocation rules will become effective. These rules will expand the scope of the TCPA’s revocation rules and require callers to cease all calls and texts across all channels in response to a consumer’s revocation request in many instances. The caller will have ten business days to comply and will have only a limited (one-time) confirmation process available to clarify the consumer’s revocation intent.