Major Changes to TCPA will Limit Number of Calls, Impose New Opt-Out Requirements
March 02, 2021
Changes to take effect six months after OMB approval of implementing rules
By: Steve Roberts, Darby Grant
The Federal Communications Commission (“FCC”) recently released a Report and Order which modified a number of requirements under the Telephone Consumer Protection Act (“TCPA”) in order to comply with the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”). Importantly, these modifications would add limits on the number of calls that can be made monthly, as well as add new opt-out requirements for certain calls to residential lines. They would also make permanent certain existing exemptions for calls to wireless numbers. This also includes texts because under the TCPA a call is considered a text and vice versa. Those initiating dial campaigns subject to the TCPA will have time to determine a compliance strategy, as these would not take effect until six months after the Office of Management and Budget has approved the changes.
For campaigns and political committees, once these rules take effect, prerecorded calls such as GOTV and polling would be subject to the new opt-out rules and numerical limits detailed below. However, “peer-to-peer” calls and text messages generally not subject to the TCPA would not be impacted by these rules.
The TCPA prohibits initiating any telephone call to any residential telephone line, cellular telephone service, or any service for which the called party is charged for the call, using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party unless an exception applies. Further, voice messages by an artificial or prerecorded call must generally state clearly at the beginning of the message the identity of the business, individual, or other entity that is responsible for the call. The message must also state the telephone number (other than that of the autodialer or prerecorded-message player that placed the call) of such business, other entity, or individual at some point during the call.
In 2019, the TRACED Act became law, which requires that any exemption adopted pursuant to section 227(b)(2)(B) or (C) includes requirements with respect to: (1) the classes of parties that may make such calls; (2) the classes of parties that may be called; and (3) the number of such calls that may be made. The recent Report and Order was released in order to clarify and modify the regulations to comply with this Act.
B. Important Updates under the Report and Order
- Number of Calls to a Particular Number Limited
The TRACED Act requires that the FCC limit the number of calls a calling party may make. Therefore, the FCC amended their rules to limit the number of calls that can be made to three artificial or prerecorded voice calls within any consecutive 30-day period. This does not prohibit a caller from getting consumer consent to make more than three calls during the 30-day period (including through live agent calls), and since this only applies to artificial or prerecorded voice calls to a residential telephone, callers may be able to use a live agent to make such calls without violating the TCPA. This three calls in a 30-day limit applies to non-commercial calls to a residence which includes calls conducting research, market surveys, political polling, or similar noncommercial activities. Also, it applies to commercial calls to a residence that do not constitute telemarketing and tax-exempt nonprofit organization calls to a residence. 
For HIPAA-related calls, the FCC amended their rules to limit the number of calls to one artificial or prerecorded call per day up to a maximum of three artificial or prerecorded calls per week. Again, callers can make more calls if they receive consent from the called party or use a live agent to make additional calls.
In sum, the number of calls for non-commercial calls to a residence, commercial calls to a residence that do not constitute telemarketing, and tax-exempt nonprofit organization calls to a residence, is limited to three in a 30-day period. HIPAA-related calls are limited to one call per day, up to three times a week.
- Opt-Out Requirements
The FCC clarified that calls subject to the TCPA must also comply with certain opt-out requirements. Specifically, the caller must provide an automated, interactive voice and/or key press-activated opt-out mechanism for the called person to make a do-not-call request, including brief instructions, within two seconds of providing identification information required at the beginning of the message. When a call recipient elects to opt out, the mechanism must automatically record the called person’s number to the caller’s do-not-call list and immediately terminate the call. If the message is left on an answering machine, it must also provide a toll-free number that enables the called person to call back at a later time and connect directly to the automated, interactive voice and/or key activated opt-out mechanism and automatically record the called person’s number to the caller’s do-not-call list.
Further, callers must institute procedures for maintaining do-not-call lists that meet the following minimum standards:
- A written policy, available on demand, for maintaining a do-not-call list;
- personnel engaged in any aspect of telemarketing must be informed and trained in the existence and use of the do-not-call list;
- recording and disclosure of the do-not-call requests;
- must provide the called party with the name of the individual caller, name of the person or entity whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted and the number may not be a 900 number or number for which charges exceed local or long distance transmission charges;
- the request applies to the particular entity making the call; and
- a do-not-call request must be honored for five years from the time the request is made.
These new requirements will take effect six months after OMB’s approval is published in the Federal Register. Importantly, we recognize there are still pieces to this that are not settled, in particular, with regards to the caller and how calls should be counted. As we navigate the ultimate impact of this Report and Order, please reach out to Holtzman Vogel Josefiak Torchinsky for specific questions related to your entity or planned activity.
 47 U.S.C. § 227(b)(1)(B).
 47 CFR § 64.1200(b)(1)-(2).
 Section 8(a) of the TRACED Act provides that the Commission: “shall ensure that any exemption under subparagraph (B) or (C) contains requirements for calls made in reliance on the exemption with respect to- … (iii) the number of such calls that a calling party may make to a particular called party.” See 47 U.S.C. § 227(b)(2)(I).
 47 CFR § 64.1200(ii)-(v).
 Id at § 64.1200(ii).
 Id. at § 64.1200(iii)-(iv).
 Id. at § 64.1200(v).
 Id. at § 64.1200(b)(3). See § 64.1200(b)(1), “artificial or prerecorded voice messages must state clearly at the beginning of the message the identity of the business, individual, or other entity that is responsible for initiating the call.”
 Id. at § 64.1200(b)(3).
 Id. at 64.1200(d)(1)-(6).