TCPA vs TSR
Last reviewed: · By Victor Humenhuk (CIPP/US certified)
The TCPA is a statute enforced through FCC rules that restricts how a call, text or fax may be placed: autodialers, prerecorded messages, calling hours, the Do Not Call registry, and fax advertising. The Telemarketing Sales Rule is an FTC regulation issued under the Telemarketing and Consumer Fraud and Abuse Prevention Act, and it governs the substance of the transaction: required disclosures, prohibited misrepresentations, abandoned calls, caller ID transmission, payment authorization and recordkeeping. Most outbound telemarketing must satisfy both, and because the FTC's jurisdiction excludes banks, common carriers and most nonprofits, some callers fall outside the TSR while remaining subject to the TCPA.
Two regulators, two instruments
The TCPA is a statute, enacted in 1991 and implemented by FCC rules. Its focus is the mechanics of the communication. It restricts autodialed and prerecorded calls, regulates prerecorded telemarketing to residential lines, applies to text messages by FCC interpretation, governs unsolicited fax advertisements, and underpins the national Do Not Call rules. In Facebook v. Duguid (2021) the Supreme Court narrowed the definition of an automatic telephone dialing system to equipment with the capacity to store or produce telephone numbers using a random or sequential number generator, which reduced the reach of the autodialer provisions but left the prerecorded-call, Do Not Call and consent rules intact. The topic on robocalls and autodialers goes further into the aftermath.
The TSR is a regulation, first issued by the FTC in 1995 under the Telemarketing and Consumer Fraud and Abuse Prevention Act and amended repeatedly since. Its focus is the conduct of the sale. It applies to telemarketing, meaning a plan, program or campaign to induce the purchase of goods or services or a charitable contribution by use of one or more telephones and involving more than one interstate telephone call, and it reaches sellers, telemarketers, and some inbound calls made in response to advertising.
The practical consequence is that they answer different questions. Ask the TCPA whether you may place this call at all, in this manner, to this number. Ask the TSR what you must say once someone answers, what you may not claim, and what you must keep on file.
TCPA vs TSR compared
| TCPA | TSR | |
|---|---|---|
| Instrument | Federal statute, with implementing FCC rules | FTC regulation under the Telemarketing and Consumer Fraud and Abuse Prevention Act |
| Regulator | Federal Communications Commission | Federal Trade Commission |
| Core subject | How the call, text or fax is placed | What is said and done during the sales transaction |
| Key restrictions | Autodialed and prerecorded calls, consent requirements, calling hours, company-specific and national Do Not Call lists, unsolicited fax advertisements | Required disclosures before payment, prohibited misrepresentations and material omissions, call abandonment limits, caller ID transmission, express verifiable payment authorization, restrictions on preacquired account information |
| Consent standard for marketing | Prior express written consent for autodialed or prerecorded telemarketing calls and texts | Relies on the Do Not Call framework, plus a signed written agreement for the express-agreement exemption |
| Who is outside its reach | Few callers; it applies broadly to anyone placing covered calls | Entities outside FTC jurisdiction - banks, savings institutions, federal credit unions, common carriers acting as such, air carriers, the business of insurance where regulated by state law, and most nonprofits, though for-profit fundraisers calling for charities are covered by parts of the rule |
| Recordkeeping | Consent and internal Do Not Call records must be retained to support compliance | Prescribed records, generally kept for 24 months, covering advertising, sales records, employee details and express verifiable authorizations |
| Private right of action | Yes - $500 per violation, which a court may treble to $1,500 for a willful or knowing violation | Yes, but only for a person who suffers actual damages of more than $50,000 |
| Public enforcement | FCC forfeitures; state attorneys general; private suits by consumers | FTC civil penalties per violation, adjusted annually for inflation; state attorneys general |
Where they overlap: the Do Not Call registry
The national Do Not Call Registry is the clearest area of joint operation, and the topic on the national DNC registry covers the mechanics. The FTC maintains it under the TSR, and the FCC has parallel rules under the TCPA, so a single call to a registered number can violate both regimes at once. Sellers and telemarketers must access the registry and scrub their lists, and must also maintain a company-specific Do Not Call list, honoring an individual request not to be called again regardless of any registry status.
The main exceptions apply under both sets of rules:
- Established business relationship - a call is permitted for 18 months after the consumer's last purchase, payment or transaction, or for 3 months after an inquiry or application, unless the consumer has asked the seller specifically not to call.
- Prior express written consent - a signed written agreement, including a compliant electronic signature, that clearly authorizes calls from the named seller to a specified number.
- Do Not Call safe harbor - a seller or telemarketer that has written procedures, trains its personnel, monitors compliance, uses a current version of the registry and can show the call was an isolated error may avoid liability for that violation.
Calling hours also overlap: both regimes prohibit telemarketing calls before 8 a.m. or after 9 p.m. at the called party's local time. Note that the established business relationship exception applies to the registry, not to the TCPA's separate consent requirement for autodialed or prerecorded marketing calls, which is why a business with a live customer relationship can still be liable for a robocall to that customer's cell phone.
Which rules apply to text messages and faxes?
Text messages. The FCC treats text messages to wireless numbers as calls under the TCPA, so marketing texts sent using covered technology require prior express written consent, and Do Not Call principles apply. This is the source of most modern TCPA class action exposure, because statutory damages are calculated per message. The CAN-SPAM Act separately governs mobile service commercial messages sent to an address on a wireless domain, which require express prior authorization - a different standard from ordinary commercial email, which operates on an opt-out basis.
Faxes. The TCPA prohibits sending unsolicited advertisements to a fax machine. The Junk Fax Prevention Act of 2005 added an established business relationship exception where the sender obtained the number properly, and required a clear opt-out notice on the first page of the transmission with a cost-free mechanism for opting out.
Where the TSR still bites. Even where the TCPA governs the mechanics, the TSR controls the content of any resulting call: the seller's identity and the purpose of the call must be disclosed promptly, material terms must be given before payment is taken, and misrepresentations about cost, restrictions, refund policy or material aspects of performance are prohibited. Callers outside FTC jurisdiction do not escape scrutiny - state telemarketing statutes and state UDAP enforcement, often resolved by consent decree, fill much of the gap.
Related study notes
- Telemarketing Regulatory Framework: TCPA, TSR, FCC and FTC
- The National Do Not Call Registry
- TSR Enforcement, Penalties and the Private Right of Action
- TCPA Updates: Robocalls, Autodialers, Robotexts and Facebook v. Duguid
- Exceptions to the DNC Rules: EBR, Consent and DNC Safe Harbor
Frequently asked questions
Do I have to comply with both the TCPA and the TSR?
In most outbound telemarketing, yes. The TCPA governs whether and how you may place the call, and the TSR governs the disclosures and conduct once it connects. Only entities outside FTC jurisdiction, such as banks, common carriers acting as such and most nonprofits, fall outside the TSR, and they remain subject to the TCPA.
Does the TCPA apply to text messages?
Yes. The FCC treats text messages to wireless numbers as calls under the TCPA, so marketing texts sent with covered technology require prior express written consent. Because damages are calculated per message, texting is a common source of TCPA class actions.
What did Facebook v. Duguid change?
The Supreme Court held in 2021 that an automatic telephone dialing system must have the capacity to store or produce telephone numbers using a random or sequential number generator. That narrowed the autodialer provisions, but left the separate restrictions on prerecorded and artificial voice calls, consent, and Do Not Call rules fully in force.
Can consumers sue under the Telemarketing Sales Rule?
Only in limited circumstances. A private action under the TSR requires actual damages of more than $50,000, which is why most consumer claims are brought under the TCPA instead, where statutory damages are $500 per violation and up to $1,500 for a willful or knowing violation.
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