Marketing calls, texts and email: the TCPA, Florida’s FTSA, the Do Not Call Registry and CAN-SPAM in plain terms

The TCPA in one paragraph

The Telephone Consumer Protection Act, 47 U.S.C. § 227, with the FCC's rules at 47 C.F.R. § 64.1200, does three things. It restricts calls and texts to cell phones made with an automatic dialing system or an artificial or prerecorded voice unless the recipient consented. It restricts prerecorded marketing calls to home phones. And it creates the do-not-call rules: the National Do Not Call Registry, company-specific do-not-call lists, and calling-hour limits. A person who receives a call in violation can sue for $500 per call or text, up to $1,500 per call if the violation was willful or knowing, for calls going back four years.

Consent, in plain terms

There are two levels. For informational messages (an appointment reminder, a delivery update), you need the person's prior express consent, which usually exists if they gave you their number for that purpose. For marketing messages sent by automated means or recorded voice to a cell phone, you need prior express written consent. That is a defined thing: a written agreement, signed (electronic signatures count), that clearly tells the person they are agreeing to receive marketing calls or texts from your business by automated dialing or recorded voice at a specific number, and that agreeing is not a condition of buying anything.

Consent must exist before the first message. It belongs to the person, not the number. It ends when the person says stop by any reasonable means, and the FCC's rules require you to honor that within ten business days. And it must cover your business: consent given to someone else, or to an unnamed list of partners, is where most consent defenses fail.

Autodialers and recorded voices

Since the Supreme Court's decision in Facebook v. Duguid (2021), an automatic telephone dialing system means equipment that can store or produce numbers using a random or sequential number generator. Many list-based dialers and texting platforms are not autodialers under that definition. That helps with one part of the statute and not the others: a prerecorded or artificial voice needs consent regardless of how it was dialed, and the FCC ruled in 2024 that AI-generated voices count as artificial. Florida's statute uses its own broader definition of automated systems.

Do not call

• The National Registry. Before a marketing call to a number, check it against the registry using a version no more than 31 days old. Keep the scrub records. An established business relationship (a purchase within 18 months, an inquiry within 3 months) is an exception to the registry rule only, not to the consent rules above.
• Your own list. Anyone who asks you not to call goes on your internal do-not-call list, promptly and permanently.
• Hours. No marketing calls before 8am or after 9pm in the called person's local time under federal law. Several states, including Florida, set tighter windows and limit the number of attempts.
• Count. A registry claim needs more than one call to the person within twelve months.

Florida

The Florida Telephone Solicitation Act, Fla. Stat. § 501.059, applies to calls and texts to Florida numbers and adds its own requirements and its own damages of $500 per violation, up to $1,500 if willful, on top of the federal figure. A single text to a Florida number can therefore carry both claims. Other states have their own telemarketing statutes; if you call into a state, its rules apply to you.

Vendors do not take the liability with them

If a call center, lead generator or texting platform makes the calls for you, the FCC and the courts treat you as liable for calls made on your behalf under ordinary agency principles. The vendor's contract gives you a claim against the vendor. It does not stop the person who was called from claiming against you. Put consent, scrubbing and record-keeping obligations into the contract, with an indemnity, and ask for the records. Lesson 10 lists the vendor contract clauses and the records to keep.

Email: CAN-SPAM

Commercial email is governed by the CAN-SPAM Act, 15 U.S.C. §§ 7701 to 7713. It does not require consent before you email. It requires honesty and an exit: no false or misleading header information, a subject line that is not deceptive, identification of the message as an advertisement where it is one, a valid physical postal address, a working opt-out mechanism, and opt-out requests honored within ten business days. Consumers cannot sue under CAN-SPAM; the FTC, state attorneys general and internet service providers enforce it. The practical risk for a small business is deliverability and reputation rather than a demand letter, but the rules are not optional.

Lesson 8 covers what happens when a call or text campaign goes wrong and the letter arrives.