Do Not Call Compliance How to Ensure Your Business Compliance

The Rule prohibits sellers and telemarketers from engaging in certain abusive practices that infringe on a consumer’s right to be let alone. The Rule’s privacy protections include prohibitions on:

The original Rule contained a provision prohibiting calls to any consumer who previously asked not to get calls from or on behalf of a particular seller. The amended Rule retains that provision, and adds a new one prohibiting calls to any numbers consumers have placed on the National Do Not Call Registry maintained by the FTC.

It is a Rule violation to call any consumer who has asked not to be called again (the “entity-specific Do Not Call” provision). A telemarketer may not call a consumer who previously has asked not to receive any more calls from or on behalf of a particular seller or charitable organization. It also is a Rule violation for a seller who has been asked by a consumer not to call again to cause a telemarketer to call that consumer. Sellers and telemarketers are responsible for maintaining their individual Do Not Call lists of consumers who have asked not to receive calls placed by, or on behalf of, a particular seller. Calling a consumer who has asked not to be called potentially exposes a seller and telemarketer to a civil penalty of $11,000 per violation.

What if a consumer asks a specific division of a corporation not to call? Does a call from a different division violate the Rule? Distinct corporate divisions generally are considered separate sellers under this Rule. Factors relevant to determining whether distinct divisions of a single corporation are treated as separate sellers include whether there is substantial diversity between the operational structure of the divisions and whether the goods or services sold by the divisions are substantially different from each other. If a consumer tells one division of a company not to call again, a distinct corporate division of the same company may make another telemarketing call to that consumer. Nevertheless, a single seller without distinct corporate divisions may not call a consumer who asks not to be called again, even if the seller is offering a different good or service for sale.

On the question of charitable solicitations, telefunders must maintain individual Do Not Call lists for charities on whose behalf they make telemarketing calls. Calling someone who has asked not to be called on behalf of a charitable organization potentially exposes the telefunder who places the call to a civil penalty of $11,000 per violation.

Example: Charity A is a non-profit charitable organization not covered by the TSR. Charity A engages Telefunder 1, a for-profit service bureau subject to the TSR, to conduct fundraising telephone campaigns on its behalf. Charity A uses Telefunder 1 to conduct a fundraising campaign for six months, then uses Telefunder 2, another for-profit service bureau, for the next six months. It will violate the Rule for Telefunder 2 to initiate an outbound telephone call on behalf of Charity A to a person who has already asked not to be called on behalf of Charity A. It is the responsibility of Telefunder 2 to get the Do Not Call list relating to Charity A compiled and maintained by Telefunder 1, and to keep from placing calls to anyone on that list when calling on behalf of Charity A.

If Telefunder 2 also conducts a fundraising campaign for Charity B, Telefunder 2 may call potential donors on behalf of Charity B even if they’re on Charity A’s Do Not Call list. But when calling on behalf of Charity B, Telefunder 2 may not call potential donors on Charity B’s Do Not Call list.

The FTC’s National Do Not Call Registry has been accepting registrations from consumers who choose not to receiving telemarketing sales calls since June 27, 2003. Consumers can place their telephone numbers on the National Registry by
making a toll-free telephone call or via the Internet. Consumer registrations are valid for five years, or until the consumer asks to be taken off the National Registry or the number is disconnected. Only telephone numbers are included in the National Registry. This means that all household members who share a number will stop receiving most telemarketing calls after the number is registered. Consumers may register both their residential “land line” telephone numbers and their wireless telephone numbers.

Sellers, telemarketers, and their service providers have been able to access the Registry through a dedicated Web site since September 2003. It is a Rule violation to make any covered calls beginning October 1, 2003 without having accessed the Registry. Sellers and telemarketers will have to update their call lists—that is, delete all numbers in the National Do Not Call Registry from their lists—at least every 31 days.

As of October 1, 2003, sellers and telemarketers are prohibited from calling any consumer whose number is in the database. Violators will be subject to civil penalties of up to $11,000 per violation, as well as injunctive remedies.

This provision does not apply to business-to-business calls or calls to consumers from or on behalf of charities. Still, telefunders calling to solicit charitable contributions must honor a donor’s request not to be called on behalf of a particular charitable organization.

What calls are covered?
The Do Not Call provisions of the TSR cover any plan, program, or campaign to sell goods or services involving interstate phone calls. This includes calls by telemarketers who solicit consumers, often on behalf of third-party sellers. It also includes sellers who are paid to provide, offer to provide, or arrange to provide goods or services to consumers. However, sellers and telemarketers should also be aware that the FCC regulates telemarketing calls. For more information, see the FCC’s Web site, www.fcc.gov.

What types of calls are not covered by the National Do Not Call Registry?
The Do Not Call provisions do not cover calls from political organizations, charities, telephone surveyors, or companies with which a consumer has an existing business relationship. However, sellers and telemarketers should also be aware that the FCC regulates telemarketing calls. For more information, see the FCC’s Web site, www.fcc.gov.

If a call includes a telephone survey and a sales pitch, is it covered?
Yes. Callers purporting to take a survey, but also offering to sell goods or services, must comply with the Do Not Call provisions. But if the call is for the sole purpose of conducting a survey, it is exempt. However, sellers and telemarketers should also be aware that the FCC regulates telemarketing calls. For more information, see the FCC’s Web site, www.fcc.gov.

Who can access the National Registry?
Access to the National Registry is limited to sellers, telemarketers, and other service providers. Sellers are companies that provide, offer to provide, or arrange for others to provide goods or services to a customer in return for some type of payment as part of a telemarketing transaction. Telemarketers are companies that make telephone calls to consumers on behalf of sellers. Service providers are companies that offer services to sellers engaged in telemarketing transactions, such as providing lists of telephone numbers to call, or removing telephone numbers from the sellers’ lists.

Some sellers are exempt from the FTC’s Rules but are required to access the National Registry under the FCC’s Rules. Other sellers (charities and political organizations) are exempt from accessing the National Registry under both agencies’ rules. These exempt sellers still may access the National Registry voluntarily and do not have to pay a fee for that access. They must, however, submit appropriate certification information to gain access to the National Registry.

Can I use numbers on the National Registry for any purpose other than preventing telemarketing calls?
No. The National Registry may not be used for any purpose other than preventing telemarketing calls to the telephone numbers on the Registry. Any entity that accesses the National Registry will be required to certify, under penalty of law, that it is accessing the Registry solely to comply with the TSR or to prevent calls to numbers on the Registry.

How can I access the National Registry?
The FTC is preparing a fully automated and secure Web site at www.telemarketing.donotcall.gov to provide members of the telemarketing industry with access to the National Registry’s database of telephone numbers, sorted by area code. The first time you access the National Registry, you must provide identifying information about yourself and your company. If you are a telemarketer or service provider accessing the National Registry on behalf of your seller-clients, you will be required to identify your
seller-clients and provide their unique account numbers. The only consumer information available from the National Registry is
telephone numbers. After you (or the company telemarketing on your behalf) have accessed the National Registry the first time, you’ll have the option of downloading only changes in the data that have occurred since the last time you accessed the Registry.

When can I access the National Do Not Call Registry?
Effective September 2, 2003, the National Do Not Call Registry will be available to the telemarketing industry. Enforcement of the National Do Not Call Registry begins October 1, 2003. Companies required to access the National Registry and remove the numbers on the Registry from their calling lists must do so by October 1, 2003, to be in compliance.

What information must I provide to access the National Registry?
The first time you access the system, you will be asked to provide certain limited identifying information, such as your company name and address, contact person, and the contact person’s telephone number and email address. If you are accessing the National Registry on behalf of a seller-client, you also will have to identify that seller-client.

How often will I have to access the National Registry and remove numbers from my calling list?
After October 1, 2003, you will have to synchronize your lists with an updated version of the National Registry every 31 days.

How often may I download data from the National Registry?
You will be able to access data as often as you like during the course of your annual period for those area codes for which you have paid. However, to protect system integrity, you may download data files from the National Registry only once in any 24-hour period.

What information can I access from the National Registry?
The only consumer information that companies will receive from the National Registry is registrants’ telephone numbers. The
numbers will be sorted and available by area code. Companies will be able to access as many area codes as desired (and paid for), by selecting, for example, all area codes within a certain state. Of course, companies also will be able to access the entire National Registry.

May I check just a few numbers at a time to see if they are registered?
Companies that have provided the required identification information and certification and paid the appropriate fee (if they want to access more than five area codes) will be allowed to check a small number of telephone numbers (10 or less) at a time via interactive Internet pages. This will permit small volume callers to comply with the Do Not Call requirements of the TSR without having to download a potentially large list of all registered telephone numbers within a particular area.

What format will the National Registry use?
Data will be available from the National Registry using Internet-based formats and download methods that serve both small and large businesses. Data also will be available in three different sets: full lists, change lists, and small list look-ups. Full lists and change lists will be available as flat files or XML tagged data files. You will indicate your preference for flat files or XML tagged data files as part of your profile.

With a Web browser, you will access a secure Web page that will allow you to select the download set that you prefer. For the small list look-up, you will be asked to enter from one to 10 telephone numbers on an online form. After entering the numbers and clicking on a button, the National Registry will display the list of numbers you entered and whether each
number is in the Registry.

You will be limited to the numbers in the area code(s) to which you have subscribed. The full list will contain just 10-digit telephone numbers, with a single number on each line. For the change list in flat file format, each line of the file will contain a telephone number, the date of the change, and an “A” (for Added) or “D” (for Deleted). The change list data will be fixed-width fields.

For those who select XML tagged data, the XML tags will include: a login and encrypted password; the name and email address of the company contact person; certification that access to the National Registry is solely to comply with the provisions of the TSR; the account number(s) for which the download is being performed; and whether a full list or change list is to be downloaded.

For both flat files and XML tagged data, if you select a change list, you will be provided all telephone numbers that have been added to, or deleted from, the National Registry since the date of your previous access. Change lists, for both flat files and XML tagged data, will be available to provide changes on a daily basis (representing the additions and deletions from the day before).

To assist in automating the download process, the National Registry will offer the option to set up Web services for requesting change lists in XML tagged data format.

How much does it cost to access the Registry?
Data for up to five area codes will be available for free. Beyond that, there is an annual fee of $56 per area code of data, with a maximum annual fee of $15,400 for the entire U.S. database.

How often will I have to pay a fee?
The fee must be paid annually. Payment of the fee provides access to the data for an “annual period,” which is defined as the twelve months following the first day of the month in which the seller paid the fee. For example, a seller who pays its annual fee on September 15, 2003, has an “annual period” that runs from September 1, 2003 through August 31, 2004.

Who must pay the fee?
All sellers covered by the TSR must pay the appropriate fee for an area code of data before they call, or cause a telemarketer to call, any consumer within that area code, even those consumers whose telephone numbers are not on the National Registry. The only exceptions are for sellers that call only consumers with which they have an existing business relationship or written agreement to call, and do not access the National Registry for any other purpose. Charities and political organizations that voluntarily want to access the National Registry to prevent calling consumers whose numbers are on the Registry may access the Registry at no cost.

Telemarketers and service providers may access the National Registry, at no cost, through the use of their seller-client’s unique account number. Even though they are not required by law to do so, telemarketers and service providers may gain access to the National Registry on their own behalf, but they must pay a separate fee for that ability. But before placing calls on behalf of a seller-client, telemarketers are required to ensure that their seller-client has paid the appropriate annual fee.

How can I pay the fee?
Fees will be payable via credit card (which will permit the transfer of data in the same session, if the payment is approved) or electronic fund transfer (EFT). EFT will require you to wait approximately three days for the funds to clear before data access will be provided. You must pay the fee prior to gaining access to the National Registry. Sellers and exempt entities can pay the fee directly or through their telemarketers or service providers (to which the seller or exempt entity has provided the necessary authority).

What if I pay for a small number of area codes, and then later in the year expand my business to call more area codes? Will I have to pay twice?
If you need to access data from more area codes than you initially selected, you may do so, but you will have to pay for access to those additional area codes. Obtaining additional data from the National Registry during the first six months of your annual period will require a payment of $56 for each new area code. During the second six month period, the charge to obtain data from each new area code is $28. Payment for additional data provides you with access to the additional data for the remainder of your annual period.

What happens after I pay for access?
After payment is processed, you will be given a unique account number and permitted access to the appropriate portions of the National Registry. Using that account number in future visits to the Web site will speed the time needed for access. On subsequent visits to the Web site, you will be able to download either a full updated list of numbers from your selected area codes or a more limited list, consisting of changes to the National Registry (both additions and deletions) that have occurred since the day of your last download. This limits the amount of data that you need to download during each visit. The change file will consist of each telephone number that has changed, whether it was added or deleted, and the date of the change.

If I’m a telemarketer or service provider working for a seller, can I use the seller’s account number to access the National Registry?
A telemarketer or other service provider working on behalf of a seller may access the National Registry directly or through the use of its seller-client’s unique account number. If access is gained through its seller-client’s account number, the telemarketer or service provider will not have to pay a separate fee for that access. The extent of its access will be limited to the area codes requested and paid for by its seller-client. The telemarketer or service provider also will be permitted to access the National Registry at no additional cost, once the annual fee has been paid by its seller-client. Of course, sellers or telemarketers must use a version of the National Registry that’s no more than 31 days old before they make any telemarketing calls.

If a telemarketer or service provider is accessing the National Registry directly, that is, if a telemarketer or service provider decides to obtain the information on its own behalf, it will have to pay a separate fee and comply with all requirements placed on sellers accessing the Registry. Such a telemarketer or service provider will be provided an account number that can be used only by that company. In other words, that account number is not transferrable.

What if a seller uses one telemarketer at the beginning of the year and switches to another later in the year? Will the seller have to pay twice?
No. Each seller will have a unique account number that it can give to the telemarketers and service providers who may access the National Registry on the seller’s behalf.

What happens to companies that don’t pay for access to the National Registry?
A company that is a seller or telemarketer could be liable for placing any telemarketing calls (even to numbers NOT on the National Registry) unless the seller has paid the required fee for access to the Registry. Violators may be subject to fines of up to $11,000 per violation. Each call may be considered a separate violation. However, sellers and telemarketers should also be aware that the FCC regulates telemarketing calls. For more information, see the FCC’s Web site, www.fcc.gov.

What if I call a number that’s not on the National Registry without checking the Registry first?
It’s against the law to call (or cause a telemarketer to call) any number on the National Registry (unless the seller has an established business relationship with the consumer whose number is being called, or the consumer has given written agreement to be called). But it’s also against the law for a seller to call (or cause a telemarketer to call) any person whose number is within a given area code unless the seller first has paid the annual fee for access to the portion of the National Registry that includes numbers within that area code.

In addition, it’s against the law for a telemarketer, calling on behalf of a seller, to call any person whose number is within a given area code unless the seller has first paid the annual fee for access to the portion of the National Registry that includes numbers within that area code. Telemarketers must make sure that their seller-clients have paid for access to the National Registry before placing any telemarketing calls on their behalf. However, sellers and telemarketers should also be aware that the FCC regulates telemarketing calls. For more information, see the FCC’s Web site, www.fcc.gov.

What’s my liability if my company inadvertently calls a number on the National Registry?
The TSR has a “safe harbor” for inadvertent mistakes. If a seller or telemarketer can show that, as part of its routine business practice, it meets all the requirements of the safe harbor, it will not be subject to civil penalties or sanctions for mistakenly calling a consumer who has asked for no more calls, or for calling a person on the National Registry. However, sellers and telemarketers should also be aware that the FCC regulates telemarketing calls. For more information, see the FCC’s Web site, www.fcc.gov.

How do the registries operated by the FTC, the, FCC, and the various states fit together?
On June 26, 2003, the FCC announced that it was joining the FTC in creating and enforcing one National Registry. Together, the FTC and the FCC have jurisdiction over nearly all sales calls placed to U.S. consumers.

Over half the states currently administer their own Do Not Call lists. Most of these states will add the numbers on their registries to the National Do Not Call Registry. However, the TSR does NOT preempt state law, so sellers, telemarketers, and others who do
telemarketing will have to check with various states to determine what is required for compliance at the state level. For information
about the FCC’s telemarketing regulations, visit the FCC’s Web site at www.fcc.gov. A full copy of the FCC’s regulations can be found at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-153A1.pdf.

The FTC and FCC are working to harmonize state and federal Do Not Call laws. The goal is to achieve a single National Registry for the convenience and efficiency of consumers as well as businesses.

What if I have problems when I try to access the National Registry?
The Web site at www.telemarketing.donotcall.gov has help available online during regular business hours via a secure electronic form.

How does the National Registry impact small, home-based direct sellers?
FTC staff does not contemplate enforcing the National Do Not Call Registry provisions against individuals who make sales calls out of their own homes to personal friends, family members, or small numbers of personal referrals. In fact, most of the calls made by such small direct sellers probably would be local or “intrastate” calls, and therefore not covered by the TSR. The TSR applies to telemarketing campaigns that involve more than one interstate call.

Nevertheless, small home-based direct sellers should be aware that the Do Not Call regulations of the FCC cover intrastate calls. The FCC regulations exempt “personal relationship” calls—where the party called is a family member, friend, or acquaintance of the telemarketer making the call.

As a matter of goodwill, small direct sellers may want to avoid contacting a person whose number is on the Registry.

Where can I get more information about compliance?
The best source of information about complying with the Do Not Call provisions of the TSR is the FTC’s Web site at www.ftc.gov/donotcall. It includes business information about the National Registry. You can view the entire TSR at that site.

It’s important that sellers and others involved in telemarketing recognize that both the FTC and the FCC regulate telemarketing practices. Those involved in telemarketing should review regulations put in place by both agencies. The FCC’s regulations may be found at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-153A1.pdf.

Do Not Call Safe Harbor
If a seller or telemarketer can establish that as part of its routine business practice, it meets the following requirements, it will not be subject to civil penalties or sanctions for erroneously calling a consumer who has asked not to be called, or for calling a number on the National Registry:

the seller or telemarketer has established and implemented written procedures to honor consumers’ requests that they not be called.
the seller or telemarketer has trained its personnel, and any entity assisting in its compliance, in these procedures.
the seller, telemarketer, or someone else acting on behalf of the seller or charitable organization has maintained and recorded an entity-specific Do Not Call list.
the seller or telemarketer uses, and maintains records documenting, a process to prevent calls to any telephone number on an entity-specific Do Not Call list or the National Do Not Call Registry. This, provided that the latter process involves using a version of the National Registry from the FTC no more than 31 days before the date any call is made.
the seller, telemarketer, or someone else acting on behalf of the seller or charitable organization monitors and enforces compliance with the entity’s written Do Not Call procedures.
the call is a result of error.

What happens if a consumer is called after he or she has asked not to be called? If a seller or telemarketer calls a consumer who has:

placed his number on the National Registry
not given written and signed permission to call
either no established business relationship with the seller, or has asked to get no more calls from or on behalf of that seller . . .

the seller and telemarketer may be liable for a Rule violation. If an investigation reveals that neither the seller nor the telemarketer had written Do Not Call procedures in place, both will be liable for the Rule violation. If the seller had written Do Not Call procedures, but the telemarketer ignored them, the telemarketer will be liable for the Rule violation; the seller also might be liable, unless it could demonstrate that it monitored and enforced Do Not Call compliance and otherwise implemented its written procedures. Ultimately, a seller is responsible for keeping a current entityspecific Do Not Call list, either through a telemarketing service it hires or its own efforts.

What does “error” mean? If a seller or telemarketer has and implements written Do Not Call procedures, it will not be liable for a Rule violation if a subsequent call is the result of error. But it may be subject to an enforcement investigation, which would focus on the effectiveness of the procedures in place, how they are implemented, and if all personnel are trained in Do Not Call procedures. If there is a high incidence of “errors,” it may be determined that the procedures are inadequate to comply with the Rule’s Do Not Call requirements, the safe harbor is not fulfilled, and the calls violate the Rule. On the other hand, if there is a low incidence of “errors,” there may not be a Rule violation. The determination of whether an excusable “error” occurs is based on the facts of each case. A safe rule of thumb to ensure that adequate Do Not Call procedures are implemented is to test periodically for quality control and effectiveness.

Sellers and telemarketers may call a consumer with whom a seller has an established business relationship, provided the consumer has not asked to be on the seller’s entity-specific Do Not Call list. The Rule states that there are two kinds of established business relationships.

One is based on the consumer’s purchase, rental, or lease of the seller’s goods or services, or a financial transaction between the consumer and seller, within 18 months preceding a telemarketing call. The 18-month period runs from the date of the last payment, transaction, or shipment between the consumer and the seller.

The other is based on a consumer’s inquiry or application regarding a seller’s goods or services, and exists for three months starting from the date the consumer makes the inquiry or application. This enables sellers to return calls to interested prospects even if their telephone numbers are on the National Registry.

Examples:
A magazine seller may make a telemarketing call to a customer whose number is on the National Registry for 18 months after the date of the customer’s last payment for magazines or for 18 months after the seller’s last shipment date of magazines, whichever is later.

A consumer calls a company to ask for more information about a particular product. If the company returns the consumer’s call within three months from the date of the inquiry, whether the consumer’s telephone number is on the National Registry is immaterial. But after that three month period, the company would need either the consumer’s express agreement to get more calls or a transaction-based established business relationship to support more calls.

To whom does the established business relationship apply?
An established business relationship is between a seller and a customer; it is not necessarily between one of the seller’s subsidiaries or affiliates and that customer. The test for whether a subsidiary or affiliate can claim an established business relationship with a sister company’s customer is: would the customer expect to receive a call from such an entity, or would the customer feel such a call is inconsistent with having placed his or her number on the National Do Not Call Registry?

Factors to be considered in this analysis include the nature and type of goods or services offered and the identity of the affiliate. Are the affiliate’s goods or services similar to the seller’s? Is the affiliate’s name identical or similar to the seller’s? The greater
the similarity between the nature and type of goods sold by the seller and any subsidiary or affiliate and the greater the similarity in identity between the seller and any subsidiary and affiliate, the more likely it is that the call would fall within the established business
relationship exemption.

Examples:
A consumer who purchased aluminum siding from “Alpha Company Siding,” a subsidiary of “Alpha Corp.,” likely would not be surprised to receive a call from “Alpha Company Kitchen Remodeling,” also a subsidiary of “Alpha Corp.” The name of the seller and the subsidiary are similar, as are the type of goods or services offered—home repair and remodeling.

If a consumer purchases a computer with peripherals—printer, keyboard, speakers—from a local retail store, the consumer will have an established business relationship with that store for 18 months from the date of purchase. In addition, the consumer may have an established business relationship with the computer manufacturer and possibly the manufacturer of the peripherals, as well as the operating system manufacturer, as long as the customer has a contractual relationship with any of these entities. If the printer comes with a manufacturer’s written warranty, the manufacturer of the printer has an established business relationship with the customer. If the operating system comes with a manufacturer’s written warranty, the manufacturer of the system has an established business relationship with the customer, too.

However, if a consumer buys a subscription to a magazine from a magazine publisher that happens to be owned by a corporation with diverse holdings, the customer’s established business relationship would exist only with the magazine publisher, not the corporate parent or any other corporate subsidiaries.

The Rule allows sellers and telemarketers to call any consumer who gives his or her express agreement to receive calls, even if the consumer’s number is in the National Do Not Call Registry. The consumer must give express agreement in writing to receive calls placed by—or on behalf of—the seller, including the number to which calls may be made, and the consumer’s signature. The signature may be a valid electronic signature, if the agreement is reached online.

f a seller seeks a consumer’s permission to call, the request must be clear and conspicuous, and the consumer’s assent must be affirmative. If the request is made in writing, it cannot be hidden; printed in small, pale, or non-contrasting type; hidden on the back or bottom of the document; or buried in unrelated information where a person would not expect to find such a request. A consumer must provide consent affirmatively, such as by checking a box. For example, a consumer responding to an email request for
permission to call would not be deemed to have provided such permission if the “Please call me” button was pre-checked as a default.

In the FTC’s enforcement experience, sweepstakes entry forms often have been used in a deceptive manner to obtain “authorization” from a consumer to incur a charge or some other detriment. Authorization or permission obtained through subterfuge is ineffective. The FTC scrutinizes any use of such sweepstakes entry forms as a way to get a consumer’s permission to place telemarketing calls to her number.

It is a violation of the Rule for anyone to sell, rent, lease, purchase, or use an entity-specific Do Not Call list or the National Registry for any purpose other than complying with the Rule’s Do Not Call provisions or preventing calls to numbers on such lists. This provision applies to list brokers, third-party services, and others, in addition to sellers and telemarketers. It is intended to ensure that consumers’ phone numbers on Do Not Call lists and the National Registry are not misused. It is a violation of this provision for a seller to market its own entityspecific Do Not Call list to another entity for use as a “do call” list.

Sellers and telemarketers (on behalf of sellers) must purchase access to the relevant Do Not Call data from the National Registry database. The Rule prohibits participating in any arrangement to share the cost of accessing the National Registry database. A telemarketer may not divide the costs to access the National Registry database among various client sellers; access for each client seller must be purchased separately. Similarly, a telemarketer may not access the National Registry to obtain Do Not Call data and transfer the data to or share it with another telemarketer.

It is a Rule violation to deny or interfere with someone’s right to be placed on the National Do Not Call Registry or on any entity-specific Do Not Call list. This provision prohibits a telemarketer from refusing to accept a consumer’s entity-specific Do Not Call request, whether by hanging up the telephone when the consumer asserts the request, harassing the consumer for having made such a request, or simply failing to diligently capture information about a consumer’s Do Not Call request and add it to the appropriate entity-specific Do Not Call list. In addition, it would violate this part of the Rule for any person to purport to accept telephone numbers or other information for entry into the National Do Not Call Registry. No data from third parties is accepted into the National Do Not Call Registry.

Unless a telemarketer has a person’s prior consent to do otherwise, it is violation of the Rule to make outbound telemarketing calls to the person’s home outside the hours of 8 a.m. and 9 p.m.

The Rule expressly prohibits telemarketers from abandoning any outbound telephone call, but has an alternative that allows some flexibility while enabling you to avoid liability under this provision. The call abandonment provision and safe harbor take effect October 1, 2003.

Abandoned calls often result from the telemarketers’ use of predictive dialers to call consumers. Predictive dialers promote telemarketers’ efficiency by simultaneously calling multiple consumers for every available sales representative. This maximizes the amount of time telemarketing sales representatives spend talking to consumers and minimizes representatives’ “downtime.” But it also means some calls are abandoned: consumers are either hung up on or kept waiting for long periods until a representative is available.

Under the Rule’s definition, an outbound telephone call is “abandoned” if a person answers it and the telemarketer does not connect the call to a sales representative within two seconds of the person’s completed greeting. The use of prerecorded message telemarketing, where a sales pitch begins with or is made entirely by a prerecorded message, violates the TSR because the telemarketer is not connecting the call to a sales representative within two seconds of the person’s completed greeting.

The abandoned call safe harbor provides that a telemarketer will not face enforcement action for violating the call abandonment prohibition if the telemarketer:

To take advantage of the safe harbor, a telemarketer must first ensure that a live representative takes the call in at least 97 percent of the calls answered by consumers. Calls answered by machine, calls that are not answered at all, and calls to non-working numbers do not count in this calculation.

A telemarketer also must eliminate “early hangups” by allowing an unanswered call to ring either four times or for 15 seconds before disconnecting the call. This element of the safe harbor ensures that consumers have reasonable time to answer a call and are not subjected to “dead air” after one, two, or three rings.

In addition, in the small permissible percentage of calls in which a live representative may not be available within two seconds of the consumer’s completed greeting, the telemarketer must play a recorded message. The message must state the name and telephone number of the seller responsible for the call, enabling the consumer to know who was calling and, should the consumer wish, to return the call. The Rule expressly states that sellers and telemarketers still must comply with relevant state and federal laws, including, but not limited to, the Telephone Consumer Protection Act (47 U.S.C. § 227) and FCC regulations at 47 C.F.R. Part 64.1200. The FCC regulations prohibit such recorded messages from containing a sales pitch, but, like the TSR provision discussed here, require that the message state “only the name and telephone number of the business, entity, or individual on whose behalf the call was placed and that the call was for ‘telemarketing purposes.’” The recorded message must not contain a sales pitch. The number on the recorded message must be one to which a consumer can call to place an entity specific Do Not Call request.

Finally, a telemarketer wishing to avail itself of the safe harbor for abandoned calls must keep records that document its compliance with the first three safe harbor components in accordance with the recordkeeping provision of the Rule (Section 310.5). The records must establish that the abandonment rate has not exceeded three percent and that the ring time and recorded message requirements have been fulfilled.

It is a violation of the Rule to fail to transmit or cause to be transmitted the telephone number, and, when available by the telemarketer’s telephone company, the name of the telemarketer to any consumer’s caller identification service. This provision takes effect January 29, 2004.

To comply with this requirement, a telemarketer may transmit its own number and, where available, its own name, to consumers’ caller identification services. The Rule also allows a substitution of the name of the seller (or charitable organization) on whose behalf the telemarketer is calling, and the seller’s (or charitable organization’s) customer (or donor) service telephone number, which is answered during regular business hours. The Rule permits a service bureau calling on behalf of many client-sellers to transmit a client-seller’s customer service number (or the donor service number of a charitable organization client) as well as the names of these entities, if the service bureau’s telephone company has the capacity to transmit this information.

There may be situations when a consumer who subscribes to a Caller ID service does not receive a telemarketer’s transmission of Caller ID information despite the fact that the telemarketer has arranged with its carrier to transmit this information in every call. This can happen if the Caller ID information is dropped somewhere between the telemarketer’s call center and the consumer’s telephone. Telemarketers who can show that they took all available steps to ensure transmission of Caller ID information in every call will not be liable for isolated inadvertent instances when the Caller ID information fails to make it to the consumer’s receiver. Nevertheless, a telemarketer’s use of calling equipment that is not capable of transmitting Caller ID information is no excuse for failure to transmit the required information.

The FCC’s telemarketing regulations under the TCPA also include provisions governing the transmission of Caller ID (47 C.F.R. § 64.1200).

Sellers and telemarketers are prohibited from using threats, intimidation, and profane or obscene language in a telemarketing transaction. This prohibition covers all types of threats, including threats of bodily injury, financial ruin, and threats to ruin credit. It also prohibits intimidation, including acts that put undue pressure on a consumer, or that call into question a person’s intelligence, honesty, reliability, or concern for family. Repeated calls to an individual who has declined to accept an offer also may be viewed as
an act of intimidation.

Calling Consumers Repeatedly or Continuously, with the Intent to Annoy, Abuse, or Harass

A consumer asks to be placed on a company’s Do Not Call list. If the telemarketer who receives that request decides to dial the consumer’s number repeatedly, hanging up each time or making obnoxious or offensive remarks to the consumer in retaliation, the calls would violate this provision of the Rule. Repeated calls urging a consumer to take advantage of an offer also would violate this provision, provided they are made with the intent to annoy, abuse, or harass.

DO NOT CALL List Compliance