Does the Illinois Telephone Consumer Protection Act (TCPA) apply to my company?

The Illinois Telephone Solicitations Act (TSA) applies to companies soliciting the sale of goods or services in Illinois, with certain exceptions. Specifically, the Act does not apply to telecommunications carriers as defined in Article XIII of the Public Utilities Act, banks, trust companies, savings and loan associations, credit unions, licensees under the Consumer Installment Loan Act, licensed insurers, licensees under the Real Estate License Act of 2000, or any affiliates, subsidiaries, employees, or agents of these entities. See 815 ILCS 413/10.

Additionally, the Act exempts licensed insurance companies, their licensed employees or agents when performing acts within the scope of their licenses in relation to existing customers or policyholders. The Act also does apply to telephone calls made by autodialers or by registered dealers, investment advisers, or salespersons under the Illinois Securities Law of 1953 or federal securities laws, provided they are performing acts within the scope of their registration. See 815 ILCS 413/20.

Notwithstanding these exemptions, all telephone calls must comply with specific requirements outlined in 815 ILCS 413/15(c), prohibiting any person from soliciting the sale of goods or services by telephone in a manner that impedes the function of any caller ID. See 815 ICLS 413/23.

What types of telephone calls and texts are prohibited by the TCPA?

The TSA aims to protect consumers from unsolicited and potentially disruptive communications, ensuring that autodialed calls and messages are made in a manner that respects the privacy and preferences of the recipients.

It is a violation to make or cause to be made telephone calls utilizing an autodialer to any emergency telephone number, as defined in 815 ILCS 305/30. Additionally, it is prohibited to play a prerecorded message placed by an autodialer without the consent of the called party. See 815 ILCS 305/30.

The TSA also restricts the operation of autodialers during certain hours, specifically between 9 p.m. and 9 a.m. Autodialers must also disconnect within 30 seconds after the termination of the call by the subscriber or the autodialer, and they cannot be used to dial numbers determined by successively increasing or decreasing integers. Additionally, autodialers may not be operated in a manner that impedes the function of any caller ID when the telephone solicitor’s service or equipment is capable of allowing the display of the solicitor’s telephone number. 815 ILCS 305/15.

What are the exceptions or defenses to a claim for violation of the TCPA?

Exemptions include calls made in response to an express request of the person called, calls made to any person with whom the telephone solicitor has a prior or existing business relationship, and calls placed on behalf of political, charitable, public opinion polling, research survey, or radio or television broadcast rating organizations. See 815 ILCS 305/20.

Additionally, a defense to a TCPA claim can be based on the intent and knowledge of the sender. For instance, if the sender had been assured by third parties that the recipients consented to receive the communications, this could be used as a defense. See Cent. Mut. Ins. Co. v. Tracy’s Treasures, Inc. 2014 IL App (1st) 12339.

What are the penalties and damages resulting from a violation of the TCPA?

The TSA provides for private causes of action, permitting a consumer to recover a judgment for three times the amount of actual damages assessed, plus costs and reasonable attorney fees. 815 ILCS 413/25. Additionally, the TSA provides for statutory damages of $500 per violation, which can be increased up to three times if the court finds that the defendant willfully or knowingly violated the Act. Italia Foods, Inc. v. Sun Tours, Inc., 2013 IL 110350.

The Illinois Attorney General may also enforce the TSA as violations are considered unlawful practice under the Consumer Fraud and Deceptive Business Practices Act. The Attorney General has all the remedies, penalties, and authority granted under that Act to enforce the TCPA. In such actions, the court may order that persons who incurred actual damages be awarded the amount at which actual damages are assessed. See 815 ILCS 413/25.

What is the relationship between the TCPA and the federal Do Not Call Regulations?

The Illinois Commerce Commission has established a Restricted Call Registry, which utilizes the national “do-not-call” registry maintained by the Federal Trade Commission (FTC) as the Illinois Restricted Call Registry.

Additionally, the Illinois TSA mandates that telemarketers must comply with the federal regulations by not soliciting telephone subscribers more than 45 days after obtaining the Registry or any updates to it. This ensures that the state’s regulations are consistent with the federal rules, thereby providing a unified approach to consumer protection against unsolicited telemarketing calls.

What are the Current Best Practices to Comply with the TCPA?

• Do not operate autodialers to place telephone calls between the hours of 9 p.m. and 9 a.m..
• Autodialers must disconnect within 30 seconds after the termination of the call by the subscriber or the autodialer.
• If disconnection within 30 seconds is not technically feasible, a live operator must be used to state their name, the name, address, and telephone number of the business or organization being represented, and the purpose of the call, and to inquire whether the person called consents to hear the prerecorded message.
• Businesses should avoid using autodialers to dial numbers determined by successively increasing or decreasing integers.
• Businesses must not operate autodialers in a manner that impedes the function of any caller ID when the telephone solicitor’s service or equipment is capable of allowing the display of the solicitor’s telephone number.