When Are Robocalls Illegal? A Plain-English Guide to the TCPA

Most robocall lawsuits in this country are brought under one statute: the Telephone Consumer Protection Act of 1991, codified at 47 U.S.C. § 227. The FCC's rules implementing it are at 47 C.F.R. § 64.1200. The law gets litigated as often as it does for a simple reason. Consumers can sue under it directly, and the damages are fixed by statute, so you don't have to prove the calls cost you money.

That doesn't mean every unwanted call is illegal. The TCPA targets particular practices, and whether a call crosses the line depends on how it was made and whether you agreed to it.

Prerecorded and artificial voices

The clearest rule concerns calls that play a recorded or computer-generated voice. Under § 227(b)(1)(A)(iii), a caller generally can't send one of these to your cell phone without your prior express consent. If the call is selling something, the FCC requires more: prior express written consent, meaning a signed agreement (electronic signatures count) that authorizes that specific seller to send you automated marketing. See 47 C.F.R. § 64.1200(a)(2).

Prerecorded telemarketing calls to a residential landline are restricted too, under § 227(b)(1)(B).

What about autodialers?

The same provision also covers calls made with an "automatic telephone dialing system." For years, lawyers argued about what that phrase meant. The Supreme Court settled it in Facebook, Inc. v. Duguid (2021), holding that the equipment has to use a random or sequential number generator to store or produce the numbers it calls. Most modern systems that dial from a list of customer numbers don't meet that definition.

In practice, that shifted a lot of TCPA litigation. Cases today tend to focus on prerecorded or artificial voices, which Duguid didn't affect, or on the do-not-call rules described below.

Do-not-call violations

Separately, the FCC's rules bar telemarketing calls to residential numbers listed on the National Do Not Call Registry, subject to some exceptions. See 47 C.F.R. § 64.1200(c)(2). Companies that telemarket also have to keep their own internal do-not-call list and honor requests to stop calling. See § 64.1200(d). These rules apply no matter what equipment placed the call, which is why they've become so important after Duguid.

What about texts?

Under § 227(b), a text message to a cell phone is treated as a "call." The Supreme Court treated the point as undisputed in Campbell-Ewald Co. v. Gomez (2016), and federal appeals courts, including the Ninth Circuit, which covers California, have agreed.

Whether texts are covered by the do-not-call private right of action in § 227(c)(5) is a different question, and courts are now divided on it. We explain the split in our article on spam texts.

Damages

For calls that violate the prerecorded-voice and autodialer provisions, § 227(b)(3) lets you recover your actual monetary loss or $500 per violation, whichever is greater. If the court finds the violation was willful or knowing, it can increase the award to as much as $1,500 per violation.

The do-not-call rules have their own remedy. Under § 227(c)(5), a person who receives more than one telemarketing call within a twelve-month period by or on behalf of the same entity in violation of those rules can recover up to $500 per violation, and the court can treble that for willful or knowing violations.

Both remedies are per call. Ten unlawful calls are ten violations.

Consent, and taking it back

Consent is the defense callers raise most often. For marketing robocalls and texts, written consent has to identify the seller, and consent given to one company doesn't automatically extend to others.

You can also withdraw consent you gave. The FCC has said consumers may revoke through any reasonable means, and its rules now require callers to honor a revocation request within ten business days. Replying STOP to a text or telling a live agent to stop calling are both reasonable. Calls that continue after that are a separate problem for the caller.

How long you have

The TCPA doesn't contain its own statute of limitations. Courts generally apply the four-year federal catch-all period in 28 U.S.C. § 1658. Evidence gets harder to gather over time, though, so waiting rarely helps.

If the calls are coming now

Records decide these cases. Screenshot your call log showing the number, date, and time of each call. Save voicemails, since a recorded message that names the company is about the best evidence there is. If you answer, write down what was said and who they claimed to be. And tell the caller to stop, then note the date you did it.

If the calls keep coming after that, it's a good time to talk to a lawyer.