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Your Legal Corner - Client Alert Blog

TCPA's New Rules For Unsolicited Calls/Text Messages to Consumer Cell Phone Numbers.

Written By: Melissa C. Marsh, Esq., California Attorney, November 2013 Add to Favorites
Telemarketers and businesses alike must be mindful of the new amendments to the Federal Communications Commission’s (FCC’s) Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227. Effective October 16, 2013, the TCPA prohibits making a call to a mobile phone or landline, and the sending a text message to a cell phone using any “automatic telephone dialing system, or an artificial or prerecorded voice” to offer or market a product or service to a consumer, without the “prior express consent of the called party” even if there was a prior business relationship with the consumer.

Purely informational calls and text messages, with no economic purpose, as well as calls/texts your cellular carrier, a debt collector, school, and healthcare provided are specifically exempted. Do not despair, your physician can still have the computer call to remind you of your appointment. Also exempted are emergency calls and texts.

Prior Written Consent and Opt Out Provisions.

Under the FCC’s new rules, the telemarketer and/or business on whose behalf they are contracted, must: (1) acquire the consumer’s “prior express written consent” and (2) provide a clear unambiguous opt-out mechanism. It should be noted that the new rules eliminate the exemption that previously allowed businesses to place prerecorded advertising or telemarketing calls to a consumer’s residential phone line if the business had a pre-existing business relationship with the consumer.

“Express written consent” requires a clear and conspicuous: (1) disclosure that by providing consent the consumer will receive auto-dialed, or prerecorded calls or texts on behalf of a specific seller; and (2) acknowledgment that, having been informed about the consequences of consent, the consumer agrees to receive such calls at the mobile number provided. The telemarketer and/or business may acquire the prior written consent through traditional means, or through email, a web site form, text message, telephone key press or voice recording as provided by the E-Sign Act.

Any such prior written consent, should require an affirmative act on behalf of the consumer such as a check the box and contain language to the following effect:

1. By signing this agreement, I hereby authorize [company] to deliver, and I hereby agree to accept, artificial or prerecorded marketing calls/text messages, to the phone number I have provided; and

2. I understand and acknowledge that I am not required to sign this agreement, and that this agreement is not a condition of me purchasing any product or service; and

3. Optional Language may also be included such as: I further understand that if receiving a text message, standard message and data rates may apply, and that I may unsubscribe at any time by ding [instructions].

To comply with the “Opt out” Requirements, the telemarketer and/or business must announce or state at the beginning of the call/text to either a mobile or land line residential number the manner and method by which the consumer can opt-out of future calls/text messages and that method (voice activated or key press) must be automated, interactive and capable of being implemented throughout the duration of the call.

If during the call a consumer elects to opt-out, the telephone number must automatically be added to the telemarketer’s do not call list, and the call must immediately terminate. If, on the other hand, the automated call left a message on the consumer’s answering machine, it must provide a toll-free number the consumer may call to opt out of future calls via an interactive voice command and/or key press.


Consumers who receive unsolicited calls or text messages in violation of the TCPA may obtain statutory damages of $500 per violation, and up to $1500 per call or text if the Court finds the call or text was willfully or knowingly made in contravention of the law. Now if your a business owner thinking…aah no big deal, think again because a class action attorney can bring a claim on each and every violation if they have just a single plaintiff willing to act as a class representative.

Record Maintenance.

The new regulations only require the telemarketer/business to maintain its records of calls/text messages for a period of 24 months. However, as consumers have four (4) years in which to bring a claim that the TCPA was violated. As the new rules provide that the telemarketer bears the burden of proving, by clear and convincing evidence, that the consumer’s prior express written consent was in fact obtained, telemarketers and businesses should retain these records for four (4) years.

Posted In: Employment Law News 

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Disclaimer: The information presented on this web site was prepared by Melissa C. Marsh for general informational purposes only and does not constitute legal advice. The information provided in my articles and alerts should not be relied upon, or used as a substitute for professional legal advice from an attorney you retain to advise or represent you. Your use of this Internet site does not create an attorney- client relationship. Transmission of this article is not intended to create, and receipt of it does not constitute, an attorney-client relationship. All uses of the contents of this site, other than personal uses, are prohibited. You may print or email a copy of any information posted on this web site for your own personal, non-commercial, use, but you may not publish any of the articles or posts on this web site without the Express Written Permission of Melissa C. Marsh.

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Located in Los Angeles, California, the Law Office of Melissa C. Marsh handles business law and corporation law matters as a lawyer for clients throughout Los Angeles including Burbank, Sherman Oaks, Studio City, Valley Village, North Hollywood, Woodland Hills, Hollywood, West LA as well as Riverside County, San Fernando, Ventura County, and Santa Clarita. Attorney Melissa C. Marsh has considerable experience handling business matters both nationally and internationally. We routinely assist our clients with incorporation, forming a California corporation, forming a California llc, partnership, annual minutes, shareholder meetings, director meetings, getting a taxpayer ID number (EIN), buying a business, selling a business, commercial lease review, employee disputes, independent contractors, construction, and personal matters such as preparing a will, living trust, power of attorney, health care directive, and more.