FCC Record, Volume 27, No. 2, Pages 937 to 1877, February 6 - February 17, 2012 Page: 1,832
vii, 937-1877 p. ; 28 cm.View a full description of this book.
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purposes, our changes also do not affect messages sent to consumers to alert them to emergency
situations.7
II. BACKGROUND
A. The Telephone Consumer Protection Act of 1991 and the FCC's Implementing
Rules
4. To protect consumers from unwanted calls, the TCPA imposes restrictions on the use of
the telephone network for unsolicited advertising by telephone and facsimile.8 Two provisions of the
TCPA, as codified in the Communications Act of 1934, as amended (the Act), restrict the use of
automatic telephone equipment.9 Section 227(b)(1)(A) of the Act prohibits certain categories of
autodialed calls, absent an emergency or the "prior express consent" of the consumer.'o This provision
prohibits the use of automatic telephone dialing systems (autodialers) or artificial or prerecorded voice
messages for calling emergency telephone lines, health care facilities (including patient rooms), telephone
numbers assigned to wireless services, and services for which the consumer is charged for the call." The
Commission has concluded that the prohibition encompasses both voice and text calls, including short
message service (SMS) calls, if the prerecorded call is made to a telephone number assigned to such
service.'2 Section 227(b)(2)(C) authorizes the Commission to exempt from this provision calls to a
number assigned to a wireless service that are not charged to the consumer, subject to certain conditions
intended to protect consumers' privacy rights.13
5. Section 227(b)(1)(B) prohibits non-emergency calls to a residential line "using an
artificial or prerecorded voice" without the recipient's "prior express consent" unless the call is
"exempted by rule or order by the Commission under paragraph (2)(B)."'4 Section 227(b)(2)(B), in turn,
7 In addition, nothing in this Order changes the Do-Not-Call consent requirements. Thus, sellers may contact
consumers registered on the national Do-Not-Call Registry if they have obtained prior express invitation or
permission from those consumers. Such permission must be evidenced by a signed, written agreement between the
consumer and seller which states that the consumer agrees to be contacted by the seller and includes the telephone
number to which the calls may be placed. See 47 C.F.R. 64.1200(c)(2)(ii); see also 2003 TCPA Order, 18 FCC
Red at 14043, para. 44.
8 47 U.S.C. 227 (TCPA). Under the Commission's TCPA rules and orders, if the consumer's number is listed on
the national Do-Not-Call Registry, prior express consent of a consumer to receive a prerecorded telemarketing call
(or live telephone solicitation) must be in writing. See Rules and Regulations Implementing the Telephone
Consumer Protection Act of' 1991, CG Docket No. 02-278, Report and Order, 18 FCC Red 14014, 14043, para. 44
n.157 (2003) (2003 TCPA Order) (discussing prior express written permission required for consumers who have
registered their numbers on the Do-Not-Call Registry).
9 47 U.S.C. 227(b).
o 47 U.S.C. 227(b)(1)(A).
1 Id.; see also 47 C.F.R. 64.1200(a)(1). An "automatic telephone dialing system" is "equipment which has the
capacity - (A) to store or produce telephone numbers to be called, using a random or sequential number generator;
and (B) to dial such numbers." 47 U.S.C. 227(a)(1).
12 See 2003 TCPA Order, 18 FCC Red at 14115, para. 165. In particular, Section 227(b)(l)(A)(iii) prohibits
prerecorded calls "to any telephone number assigned to a paging service, cellular telephone service, specialized
mobile radio service, or other radio common carrier service, or any service for which the called party is charged for
the call." See generally 47 U.S.C. 227(b)( )(A)(iii): Sattefield v. Simon & Schuster, Inc., 569 F.3d 946 (9h Cir.
2009) (noting that text messaging is a form of communication used primarily between telephones and is therefore
consistent with the definition of a "call").
" 47 U.S.C. 227(b)(2)(C).
" 47 U.S.C. 227(b)(1)(B).1832
Federal Communications Commission
FCC 12-21
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United States. Federal Communications Commission. FCC Record, Volume 27, No. 2, Pages 937 to 1877, February 6 - February 17, 2012, book, February 2012; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc94251/m1/910/: accessed March 28, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.