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Last Updated on February 11, 2008 Document No. 9519

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Telephone Consumer Protection Act (TCPA): Technology Requirements

Prerecorded Messages
The Federal Communications Commission (FCC) has published revised regulations, implementing parts of
the Telephone Consumer Protection Act (TCPA).1 The rules are intended primarily to regulate the activities
of telemarketers and the delivery of telephone solicitations and unsolicited advertisements. For all practical
purposes, the rules pertaining to the use of automatic dialing devices and predictive dialers2 extend only to
telemarketers; the rules pertaining to the use of prerecorded messages and the delivery of messages via
facsimile, however, extend to all persons and entities. This article addresses the impact of the regulations
on the delivery of prerecorded messages.

TCPA and the Ability to Deliver Prerecorded Messages

The FCC rules that generally restrict the use of prerecorded messages are covered in Section 64.1200(a).
This section provides in pertinent part that,

No person or entity may:

(1) initiate any telephone call (other than a call made for emergency purposes or
made with the prior express consent of the called party) using an automatic
telephone dialing system or an artificial or prerecorded voice;

(i) to any emergency telephone line, including any 911 line and any emergency line of a
hospital, medical physician or service office, health care facility, poison control center, or
fire protection or law enforcement agency;

(ii) to the telephone line of any guest room or patient room of a hospital, or heath care
facility, elderly home, or similar establishment; or

(iii) 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.

(2) Initiate any telephone call to any residential line using an artificial or prerecorded
voice to deliver a message without the prior express consent of the called party, unless the call,

(i) is made for emergency purposes,

(ii) is not made for a commercial purpose,

© 2008 ACA International. All Rights Reserved. Page 1 of 5

 (iii) is made for a commercial purpose but does not include or introduce an unsolicited
advertisement or constitute a telephone solicitation,

(iv) is made to any person with whom the caller has an established
business relationship at the time the call is made, or

(v) is made by or on behalf of a tax exempt nonprofit organization.3 (Emphasis added.)

Prior to the adoption of the amendments to the FCC rules, Section 64.1200(a) only exempted calls made
for a commercial purpose from the general prohibition against the delivery of prerecorded messages if such
calls did not include an unsolicited advertisement.4 This exemption remains intact, but the rules have been
amended to make clear that this exemption only extends to calls made for a commercial purpose that do not
otherwise include the transmission of an unsolicited advertisement and do not constitute a telephone
solicitation.5

In order to determine whether a prerecorded message is exempt from the general prohibition against their
use, one must understand the FCC’s definition of unsolicited advertisement and the definition of telephone
solicitation.

The FCC rules define “unsolicited advertisement” as “any material advertising the commercial availability
or quality of any property, goods, or services which is transmitted to any person without that person’s prior
express invitation or permission.”6

The term “telephone solicitation” means:

[T]he initiation of a telephone call or message for the purpose of encouraging the purchase
or rental of, or investment in, property, goods, or services, which is transmitted to any
person, but such term does not include a call or message: (i) to any person with that
person’s prior express invitation or permission; (ii) to any person with whom the caller has
an established business relationship; or (iii) by or on behalf of a tax-exempt nonprofit
organization.7

The FCC considers debt collection calls delivered by a prerecorded message to be calls made for a
commercial purpose that do not include a telephone solicitation.8 Therefore, unless third party debt
collectors include information in their prerecorded collection messages about products or services such as
alternative credit services or mortgage loans, etc., it is acceptable for third party debt collectors to continue
the practice of leaving prerecorded messages with consumers subject to the restrictions on calling cellular
phones and pagers and the FCC rules on prerecorded message identification requirements.

Under the rules, credit grantors and merchants may also continue the practice of delivering prerecorded
messages for the purpose of communicating with their customers in connection with the collection of a
receivable for the same reasons and on the same conditions that third party debt collectors may do so. In
addition, credit grantors, merchants and telemarketers calling on their behalf may use prerecorded messages
to deliver advertisements and telephone solicitations to their customers’ residential lines if they restrict the
delivery of such messages to those with whom they have an established business relationship at the time the
call is made or alternatively obtain the consumer’s written consent.

In its comments published in connection with the rules, the FCC explained, “In order to allow companies to
communicate with their existing customers by way of a prerecorded message the FCC concluded that an

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established business relationship exemption is necessary. The established business relationship or “EBR”
permits telemarketers to call consumers registered on the national do not call list and to deliver messages to
consumers. The EBR however is not an exception to the company specific do not call rules.”

Established business relationship is defined in Section 64.1200(f)(3) as,

A prior or existing relationship formed by a voluntary two-way communication between a

person or entity and a residential subscriber with or without an exchange of consideration,
on the basis of the subscriber’s purchase or transaction with the entity within the eighteen
(18) months immediately preceding the date of the telephone call or on the basis of the
subscriber’s inquiry or application regarding products or services offered by the entity
within the thee months immediately preceding the date of the call, which relationship has
not been previously terminated by either party.9

In short, prerecorded messages that constitute a communication in connection with the collection of a debt
are permitted under the FCC rules. However, prerecorded messages that constitute an unsolicited
advertisement or solicitation are only permitted under the limited circumstances detailed above. Therefore,
credit grantors, telemarketers and vendors must either restrict the delivery of telemarketing calls to those
with whom they have an EBR or obtain the express consent of the consumer prior to using prerecorded
messages to communicate with consumers about their products, goods or services. In addition, there are
further restrictions for leaving prerecorded messages on a cellular phone. For additional information
regarding prerecorded messages and cellular phones, please see ACA’s Fastfax #1253, "FCC Issues
Declaratory Ruling Regarding Dialing Wireless Numbers.”

Prerecorded Message Identification Requirements

Upon determining that it is permissible to use prerecorded messages to communicate with consumers, it is
necessary for the debt collector, credit grantor, merchant or telemarketer to satisfy the identification
requirements of the TCPA. Section 64.1200(b) provides,

All artificial or prerecorded telephone messages shall:

(1) at the beginning of the message, state clearly the identity of the business, individual, or other
entity that is responsible for initiating the call. If a business is responsible for initiating the call, the
name under which the entity is registered to conduct business with the State Corporation
Commission (or comparable regulatory authority) must be stated, and

(2) During or after the message, state clearly the telephone number (other than that of the
autodialer or prerecorded message player that placed the call) of such business, other entity, or
individual. The telephone number provided may not be a 900 number or any other number for
which charges exceed local or long distance transmission charges. For telemarketing messages to
residential telephone subscribers, such telephone number must permit any individual to make a do-
not-call request during regular business hours for the duration of the telemarketing campaign.10

Regulatory Relief
The FCC clarified that parties making calls for the purpose of debt collection are not required to identify
the caller’s state-registered name in prerecorded messages if doing so would conflict with federal or state
laws, such as the FDCPA provisions barring third party disclosure under § 805(b).11 Rather, where such a
conflict does exist, the debt collector may identify herself by individual name. The FCC still requires debt
collectors to state clearly the telephone number (other than that of an autodialer or prerecorded message
player that placed the call) of the business.12

© 2008 ACA International. All Rights Reserved. Page 3 of 5

Prerecorded Message Rules and Telephone Solicitations-
Telemarketer and Creditor Requirements
Telemarketers and those persons or entities that initiate telephone solicitations are subject to a myriad of
FCC regulations that place additional restrictions on calling times and subject them to the do-not-call
registry maintained by the federal government if they have not obtained the residential subscriber’s express
permission or have a personal relationship with the recipient of the call. Section 64.1200(c) limits telephone
solicitations to residential subscribers to times between 8:00 a.m. and ending at 9:00 p.m. and prohibits any
such calls to residential subscribers who have registered their phone number on the do-not-call registry. The
do-not-call registrations must be honored for a period of 5 years.

Liability for violating the do-not-call-registry requirements will not be imposed on the person or entity if
they can demonstrate that the violation is the result of error; that as part of its routine business practice it
has established and implemented written procedures to comply with the registry requirements; that it has
trained its personnel in procedures to comply with the registry rules; that it maintains and records a list of
telephone numbers that the seller may not contact; that it uses a process to prevent phone solicitations to
any number on the registry by obtaining a current registry every three months and that it does not
misappropriate the information on the do-not-call-registry or share the cost to obtain the registry.13

Finally, telemarketers cannot initiate calls for telemarketing purposes unless the person or entity for which
they are performing services institutes procedures for maintaining a list of persons who request not to
receive telemarketing calls made by or on behalf of the person or entity. The procedures must meet
minimum standards are explained in Section 64.1200(d) of the FCC rules.

Conclusion
For more information on the Federal Communication Commission’s regulations under the TCPA, please
visit the FCC’s Web site at www.fcc.gov and ACA International’s Web site at www.acainternational.org.

ACA International, P.O. Box 390106, Minneapolis, MN 55439-0106

Phone +1(952) 926-6547 Fax (952) 926-1624 E-mail compliance@acainternational.org
Web http://www.acainternational.org

© 2008 ACA International. All Rights Reserved.

This information is for the use of ACA International members only. Any distribution, reproduction, copying or sale
of this material or the contents hereof without consent is expressly prohibited.

This information is not to be construed as legal advice. Legal advice must be tailored to the specific circumstances
of each case. Every effort has been made to assure that this information is up-to-date as of the date of publication.
It is not intended to be a full and exhaustive explanation of the law in any area. This information is not intended
as legal advice and may not be used as legal advice. It should not be used to replace the advice of your own legal
counsel.

1
47 U.S.C. § 227 (2007).
2
Autodialer means “equipment which has the capacity to store or produce telephone numbers using a random or
sequential number generator and to dial such numbers. 47 C.F.R. § 64.1200(f)(1) (2007).
3
47 C.F.R. § 64.1200(a) (2007).
4
47 C.F.R. § 64.1200(c)(2) (2007).
5
47 C.F.R. § 64.1200(c)(2)(iii) (2007).
6
47 C.F.R. § 64.1200(f)(10) (2007).

© 2008 ACA International. All Rights Reserved. Page 4 of 5

7
47 C.F.R. § 64.1200(f)(9) (2007).
8
Federal Communications Commission, Report and Order: In the matter of Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, CC Docket No. 92-90, 7 FCC Rcd 8752, 8773 (Oct. 16, 1992).
9
47 C.F.R. § 64.1200(f)(3) (2007).
10
47 C.F.R. § 64.1200(b) (2007).
11
Federal Communications Commission, Second Order on Reconsideration: In the matter of Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, FCC 05-28
(Feb. 18, 2005).
12
Federal Communications Commission, Second Order on Reconsideration: In the matter of Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, FCC 05-28
(Feb. 18, 2005).
13
47 C.F.R. § 64.1200(c)(1)–(2) (2007).

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