Does your state have its own version of the TCPA?

Yes, Pennsylvania has enacted the Telemarketer Registration Act. 73 P.S. § 2241 et seq. (“TRA”).

If so, please explain the distinction between the state’s iteration of the TCPA.

While the TCPA protects consumers from unwanted telephone solicitation calls, text messages, and faxes, the TRA regulates telephone solicitation calls to Pennsylvania residents.[i]  The TRA is administered and enforced by the Pennsylvania Office of the Attorney General.[ii]  The following are distinct provisions of the TRA applicable to telemarketers or telemarketing businesses (hereinafter, “telemarketers”):

• Telemarketer registration requirement
• Pennsylvania Do Not Call List
• Enforcement by the Attorney General
• Violation of the Unfair Trade Practices and Consumer Protection Law

Telemarketer registration requirement

The TRA requires telemarketers to register with the Pennsylvania Office of the Attorney General with a fee to initiate or receive a telephone call to or from Pennsylvania residents.[iii]  However, telemarketers licensed by or registered with a federal or Pennsylvania agency are exempted from the registration requirement.[iv]  Telemarketers’ failure to register constitutes a misdemeanor of the second degree.[v]  Registration is valid for a period of two years and telemarketers must re-register with a fee.[vi]

Pennsylvania Do Not Call List

Pennsylvania maintains its own Do Not Call List.[vii]  Telemarketers shall not initiate telephone solicitations calls to Pennsylvania residents enrolled on the Do Not Call List.[viii]  The TRA requires telemarketers to quarterly obtain the List.[ix]

Enforcement by the Attorney General

The Attorney General has the authority to investigate if there is a reason to believe that a violation of the TRA has occurred.[x]  The Attorney general may seek to revoke registration or the right to conduct telemarketing in Pennsylvania upon a second or subsequent violation of the TRA.[xi]

Violation of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”)

A violation of the TRA also constitutes a violation of a Pennsylvania consumer protection law, the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq.[xii]  The TRA does not limit the remedies available to consumers, the Attorney General, or any district attorney under the UTPCPL or any other Pennsylvania or federal law.[xiii]  Therefore, telemarketers who violate the TRA may be liable under the UTPCPL and other laws.

Please address state specific consumer protection statutes that are often paired with TCPA or its state iterations and the additional element and penalties.

The UTPCPL can be claimed in TCPA or TRA actions by alleging that telemarketers engaged in unfair or deceptive acts or practices as defined under the UTPCPL.  The UTPCPL provides a private right of action to recover damages.[xiv]  A person using or about to use unfair methods of competition or unfair or deceptive acts or practices may be subject to an injunction and/or civil penalties.[xv]  The following are the UTPCPL elements and penalties, including private actions:

• Unfair methods of competition or unfair or deceptive acts or practices
• Private actions, including statutory damages, treble damages, and attorney fees
• Penalties—injunction and civil penalties

Unfair methods of competition or unfair or deceptive acts or practices

The UTPCPL regulates unfair methods of competition or unfair or deceptive acts or practices, which are defined under 73 P.S. § 201-2(4).  The UTPCPL includes a catch-all provision that prohibits businesses in Pennsylvania from engaging in “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”[xvi]  The UTPCPL declares those methods, acts, and practices unlawful.[xvii]  Therefore, if a violation of the TCPA or TRA constitutes an unfair method of competition or unfair or deceptive act or practice, telemarketers may be subject to penalties and consumers may bring an action to recover damages.[xviii]

Private actions, including statutory damages, treble damages, and attorney fees

Consumers who suffered an ascertainable loss of money or property as a result of an unlawful method, act, or practice may bring a private action to recover damages.[xix]  The UTPCPL provides a minimum statutory damage of $100, but consumers may seek to recover actual damages.[xx]  The court may, in its discretion, award up to three times the actual damages.[xxi]  In addition, the court may award to the plaintiff costs and reasonable attorney fees.[xxii]

Penalties

A person using or about to use unfair methods of competition or unfair or deceptive acts or practices may be subject to an injunction and/or civil penalties.[xxiii]

Injunction

The Attorney General or a district attorney may bring an action against a person who is using or about to use any method, act, or practice declared unlawful under the UTPCPL to restrain such use by temporary or permanent injunction.[xxiv]

Civil penalties

A person who violates the terms of an injunction or willfully used an unlawful method, act, or practice may be subject to a civil penalty.[xxv]

Violation of an injunction

If a person violates the terms of an injunction, the person shall pay a civil penalty of not more than $5,000 for each violation.[xxvi]

Willful use of an unlawful method, act, or practice

If the court hearing for an injunction brought by the Attorney General or a district attorney finds that a person willfully used an unlawful method, act, or practice, the Attorney General or the district attorney may recover a civil penalty of not exceeding $1,000 per violation.[xxvii]  If the victim of such willful use of an unlawful method, act, or practice is sixty years of age or older, the civil penalty shall not exceed $3,000 per violation.[xxviii]

What are the current best practices to comply with the State’s iteration of the TCPA?

To operate a telemarketing business in Pennsylvania while complying with the TCPA and TRA, telemarketers should follow the requirements under the TCPA and TRA. First, telemarketers should register biennially with the Pennsylvania Attorney General and regularly updating call lists to honor both the state and national Do Not Call registries. Next, Telemarketing calls must adhere to permissible hours (8:00 a.m. to 9:00 p.m.), display accurate Caller ID, and include clear disclosures of the caller’s identity and purpose. Obtain prior express written consent before sending robocalls, texts, or automated messages, and provide easy opt-out mechanisms, promptly honoring all such requests. Additionally, telemarketers must maintain detailed records of calls, consents, and do-not-call requests and regularly audit operations for compliance.

To avoid penalties, telemarketers should refrain from deceptive practices as prohibited by the UTPCPL, such as false advertising, high-pressure sales tactics, or misleading terms. Misrepresentation or failure to comply with these laws can result in fines of up to $3,000 per violation (higher for senior citizens) and treble damages under UTPCPL. Comprehensive employee training, compliance monitoring, and legal guidance are essential to navigating these regulations, building consumer trust, and mitigating risks of lawsuits or penalties. These steps will ensure a lawful and sustainable telemarketing operation in Pennsylvania.