Telephone Consumer Protection Act (TCPA) Fact Sheet for Non-Profits

The Telephone Consumer Protection Act (“TCPA”) was enacted in 1991 and codified in Section 227 of the Communications Act of 1934. The FCC adopted updated rules effective October 16, 2013.

Although the new rules contain changes affecting for-profit entities, most of the changes do not apply to nonprofit entities, which are exempted from some, but not all provisions of the TCPA. Importantly, however, these exemptions do not apply when the nonprofit engages in promotions with for-profit entities, even if these promotions contain a charitable solicitation appeal, and may also not extend to certain other promotions of an organization.

The three main provisions of the TCPA are: Do Not Call (“DNC”) Restrictions, Prerecorded Calls Limitations, and Limitations on Calls and Texts to Mobile Phones using an Autodialer.

Do-Not-Call Restrictions

• General Rule (For-Profit Entities) – Calls made for telemarketing purposes cannot be made to those persons on the National Do Not Call Registry.
  • Prohibits calls for telemarketing purposes without a policy on maintaining a company-specific list of people who request not to receive calls.
  • Telemarketers must search National Do Not Call Registry at least once every 31 days and drop phone numbers of consumers who have registered from their call lists.
• Exemption – Calls “made by or on behalf of a tax-exempt nonprofit” are exempt from do-not-call restrictions. See 2003 TCPA Order, 18 FCC Rcd at 14039-40, para. 37.
  • A “tax-exempt nonprofit” is not defined, however, under common meaning of the terms:
    • Non-profit refers to the organization of the corporation under state law. Most tax-exempt entities are organized as nonprofit corporations, although not all (for example, trusts can gain tax-exempt status). Entities should check their Articles of Incorporation to find out if they are organized as nonprofit corporations.
    • Tax-exempt signifies the organization has been recognized as exempt from federal income taxes. This would include entities that are exempt under Section 501(c)(3), Section 501(c)(4), and 501(c)(6), among others.
  • Exemption extends to calls made by independent telemarketers on behalf of a tax-exempt nonprofit.
    • The FCC has recognized that charitable and nonprofit entities with limited resources might be better served by contracting out their fundraising efforts.
    • So long as a fundraiser’s call is purely for charitable solicitation and not commercial purposes (not encouraging purchase or rental of, or investment in, property, goods, or services), then the call will not be subject to DNC and other TCPA restrictions.
• Outside the Exemption – Commercial co-venture calls, and calls not substantially related, are not exempted (see definition below).
  • If for-profit organization is delivering its own commercial message as part of a telemarketing campaign, even if the call also contains a charitable purpose (i.e., referencing a charitable donation), the call is not deemed to be made “for or on behalf of a tax-exempt nonprofit organization” and the DNC restrictions apply.
  • If the content of a message would not qualify for nonprofit mailing rates, it shall be treated as a telemarketing call.

Prerecorded Calls (Robocalls)

• General Rule (For-Profit Entities) – Prior express written consent required for prerecorded calls to residential numbers or wireless lines; interactive opt-out recording required for all prerecorded calls (to any number) to allow consumers to opt-out of feature robocalls.
  • Prerecorded calls must, at the beginning of the message, identify (1) the organization that is responsible for the call, and (ii) provide the telephone number for the organization responsible for the call.
• Exemption – Non-telemarketing, informational calls using an autodialer do not require prior express written consent requirement. Calls made by non-profit, tax-exempt entities using an autodialer do not require express written consent.
  • Pre-recorded calls to a residential number do not require any consent if it is a purely non-telemarketing, informational call or if made by or on behalf of tax-exempt nonprofit. See 47 CFR 64.1200(a)(3)(ii); 47 CFR 64.1200(a)(3)(iv).
  • Pre-recorded calls that are non-telemarketing, information calls to a wireless number require prior express consent (written or oral).
• Outside the Exemption – Commercial Co-venture calls are not exempted.
  • If for-profit organization is delivering its own commercial message as part of a telemarketing campaign, even if the call also contains a charitable purpose (i.e., referencing a charitable donation), the call will require prior express written consent.

Call/Texts to Cell Phones Using an Autodialer

• General Rule (For-Profits) – Must have prior express written consent before using an autodialer to place calls to a wireless number.
  • Autodialer – equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers.
• Exemption – Non-telemarketing, informational calls made to a wireless number only require prior express consent (does not have to be in writing). These calls include those made by non-profit, tax-exempt entities if there is no commercial message.
• Outside the Exemption – Commercial Co-venture calls are not exempted.
  • If for-profit organization is delivering its own commercial message as part of a telemarketing campaign, even if the call also contains a charitable purpose (i.e., referencing a charitable donation), the call will require prior express written consent.

Commercial Co-Ventures

• Defined by state charitable solicitation law.
  • Typical definition is, “any person who, for profit, is regularly and primarily engaged in a trade or business other than charitable fundraising, who represents to the public that the purchase or use of any goods, services, entertainment, or other things of value will benefit a charitable organization or will be used for a charitable purpose.” See, e.g., CA Govt Code 12599.2.
  • Example – “For every magazine subscription sold, XYZ publisher will donate $2 to Tree Hugger Charity.”
• Aside from TCPA obligations, if a charity is involved in a commercial co-venture, both the for-profit entity and the charity may have charitable solicitation registration responsibilities.
  • Registration of the commercial co-venturer (for-profit) required in up to four states.
  • The charity will need to have a written agreement with the commercial co-venture which must include certain state-mandated provisions.
  • Contracts will need to be filed with nine states.
  • Charities will need to be registered to conduct charitable promotions in up to 40 states.
• All advertisements for the commercial co-venture, including telephone solicitations, must include certain disclosures such as the dollar amount or percentage of the purchase price that will benefit charity.
• Telephone solicitations for commercial co-ventures will be considered commercial calls because they include an inducement to purchase or use a product or service. Therefore, even if containing a charitable appeal, such calls will NOT be subject to the exemption from TCPA requirements for calls made “by or on behalf of a tax-exempt non-profit” nor for “non-telemarketing, informational calls.”

Automatic TCPA Subscription Message for New Subscribers

When uploading a list of phone numbers, by TCPA regulations they must receive an opt-in text message before you are allowed to contact them.

When you send your first message to a list, if anyone in your list is a new subscriber, they will also get, at the same time, the following message.

The TCPA subscription message is:

The TCPA subscription message is sent automatically to all new subscribers by the GiveSmart Fundraise platform.

By sending this text message notification your organization agrees that one of the following statements is true:

• Your organization is a 501(c)3 nonprofit organization.
• You are sending messages on behalf of a tax-exempt organization or a political campaign.
• You have received expressed written consent from users for text message communications.

What are the TCPA and Cell Phone Carrier requirements for compliance?

TCPA Requirements

TCPA (Telephone Consumer Protection Act) protects the privacy rights of individuals by restricting unsolicited text messages.

For-profit organizations must receive “expressed written consent” before sending text messages.

Carrier Requirements

MMA (Mobile Marketing Association) best practices are required by all cell phone carriers for text messaging programs. Section 1.4-9 states that after a mobile number has been added to a list, a confirmation text message must be sent to the subscriber containing the following information:

GiveSmart Fundraise Ensures Organizations are Fully Compliant

All GiveSmart Fundraise text messaging programs have been vetted and approved by all cell phone carriers to ensure that your organization is TCPA and MMA compliant when sending messages.

Further Reading

• Telephone Consumer Protection Act 47 U.S.C. § 227 (PDF)
• Mobile Marketing Association's U.S. Consumer Best Practices for Messaging (PDF)
• GiveSmart Mobile Terms & Conditions
• What compliance or disclaimer language do I legally need?