upon a previous purchase to avoid the prior consent requirement. Since these FCC consent requirements under the TCPA are now in effect, a business should make sure that they comply and that any company hired to run a marketing campaign on their behalf complies with the TCPA, including the consent requirements. Autodialers. Most applicable to text messaging, the TCPA restricts the use of autodialers and prohibits any autodialed calls to a wireless device that charges for usage, unless the consumer has specifically consented to the communication. SMS messages and text messages sent to a number of consumers at once almost always use an “autodial” function; therefore, companies are prohibited from sending such texts without consent. Do Not Call Registry. The TCPA authorizes the Do Not Call Registry, where people can register their numbers if they do not wish to receive telemarketing calls. Prerecorded messages without the consent of the recipient are prohibited. Fax and cell phone numbers can be registered as well as landlines. Once a consumer has put his or her personal number on the list, telemarketers cannot call (or text) them without express prior permission unless the parties have an established business relationship. Enforcement. The TCPA allows for a private right of action (meaning consumers can sue a company directly claiming violation of TCPA) for $500 per infringing call or text message or $1,500 per violation if the company willfully or intentionally violated the law. An individual can also sue for actual loss not to exceed $500 for each call received after requesting to be placed on the Do Not Call Registry. State attorneys general may also initiate actions against telemarketers engaging in a pattern or practice of telephone calls or other transmissions to residents of that state in violation of the TCPA. If the telemarketer acted willfully or knowingly, the damages can be trebled.
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