Are Annoying Telemarketing Calls, Spam Text Messages and Junk Faxes Illegal — and Can You Make Them Pay?

Obnoxious Robocalls, Unsolicited Text Messages, and Junk Faxes Are Often Unlawful

Examples of TCPA violations:

  • Bill receives a call on his cell phone from an unfamiliar number, and when he picks up, hears a pre-recorded voice offering to sell him something.  He is annoyed and hangs up. After Googling the phone number that called him, and reading all the complaints, it is clear the call was placed by a robocalling telemarketing operation.
  • Sarah sits on the subway on the way to work. She receives a text message from her new hairstylist: “Goddess hair salon offers text reminders. Reply with ‘Y’ to sign up. ” She never gave the salon permission to send her text messages in the first place.
  • Joan runs a small business. One day, she receives an unsolicited fax from a fast food company offering her coupons.

Text Messages and Federal Law

According to the Federal Communications Commission (FCC), “The TCPA and the FCC’s rules ban many text messages sent to a mobile phone using an autodialer. These texts are banned unless (1) you previously gave consent to receive the message or (2) the message is sent for emergency purposes. This ban applies even if you have not placed your mobile phone number on the national Do-Not-Call list of numbers telemarketers must not call.

Robocalls aka Telemarketing Calls And Federal Law

Federal law regarding telemarketing calls is embodied in the Telephone Consumer Protection Act of 1991 (TCPA) and FCC Rules enacted to interpret and enforce the purpose of the TCPA:

FCC Regulations:

The Commission adopts the consumer protection measures proposed in the 2010 TCPA NPRM, published at 75 FR 13471, March 22, 2010. First, the Commission requires prior express written consent for autodialed or prerecorded telemarketing calls to wireless numbers and for prerecorded telemarketing calls to residential lines. Second, the Commission eliminates the ‘‘established business relationship’’ exemption as it previously applied to prerecorded telemarketing calls to residential lines. Third, the Commission requires telemarketers to implement an automated, interactive opt-out mechanism for autodialed or prerecorded telemarketing calls to wireless numbers and for prerecorded telemarketing calls to residential lines, which would allow a consumer to opt out of receiving additional calls immediately during a telemarketing robocall.” (Federal Register/ Vol. 77, No. 112 / Monday, June 11, 2012 / Rules and Regulations)

Seal of the United States Federal Communicatio...

Seal of the United States Federal Communications Commission. (Photo credit: Wikipedia)


“The major points of the new “Robocall Rule” (effective Wednesday, October 16, 2013) are:

  • Telemarketers must obtain written prior express consent from consumers for all calls sent using ATDS to wireless lines and for all artificial voice and prerecorded calls to residential and wireless lines;
  • “Opt-out” requirement
  • The “established business relationship” exemption is eliminated for artificial voice and prerecorded telemarketing calls to residential lines, foreclosing the ability of telemarketers to claim such a relationship as evidence of consumer consent; and
  • Written prior express consent can be secured in writing or through electronic means such as a website form, text message, telephone key press, email, or voice recording.” (Martidale Legal Summary)

Put more simply, the key points to the new rules:

(1) Telemarketers must have prior express consent to initiate robocalls — (electronic “click to accept” is permissible).

(2) The Existing Business Relationship exemption is abolished.

(3) Telemarketers must provide an interative opt-out during each robocall, enabling consumers’ choice to prohibit future calls.


The FCC recently published a guide detailing its new regulations concerning Robocalls. The entire text of the publication (dated 11/12/13) is reproduced below:


The Telephone Consumer Protection Act (“TCPA”) places limits on unsolicited prerecorded telemarketing calls to landline home telephones, and all autodialed or prerecorded calls or text messages to wireless numbers, emergency numbers, and patient rooms at health care facilities. These calls are known as “robocalls.” The FCC recently took steps to give consumers additional control over
the robocalls they receive with new rules that went into effect in October 2013. This consumer guide describes how the FCC’s rules have changed, rules that will continue unchanged that also provide consumer protections, and how you can best avoid unwanted telephone calls.

The New Rules for Robocalls
The FCC’s new rules impose additional requirements for how a business must obtain your consent before it may make a prerecorded telemarketing call to your residential phone number or make an autodialed or prerecorded telemarketing call or text to your wireless number. The new rules require that telemarketers first obtain your written consent to receive such calls or messages, on paper or through electronic means, including website forms, a telephone keypress, or a recording of your oral consent. Another change is that telemarketers will no longer be able to make telemarketing robocalls to your landline home telephone based solely on an “established business relationship” with you. You may establish such a relationship when you purchase something from a business or contact the business to ask questions. Businesses must now have your prior express written consent before making telemarketing robocalls to you, even if they have an established business relationship with you. (Note: Telemarketers have never been permitted to make robocalls to your wireless phone based solely on an “established business relationship” with you). The new rules also require telemarketers to allow you to opt out of receiving additional telemarketing
robocalls immediately during a prerecorded telemarketing call through an automated menu. The opt-out mechanism must be announced at the outset of the message and must be available throughout the duration of the call. This new requirement means that you will not have to hang up and make a separate call in order to stop further telemarketing robocalls.

Continuing Robocall Consumer Protections
There is no change to the prior consent requirement for robocalls and texts that are not telemarketing. These include messages regarding school closings or messages containing flight information, for example. You do not have to give your consent for these calls to your landline home phone. However, your oral or written consent is still required for these types of autodialed or prerecorded calls or texts made to your wireless number.

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