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In 2003, the Federal
Trade Commission (the “FTC”) and Federal Communications Commission (the “FCC”)
established the National Do-Not-Call Registry (www.donotcall.gov). The Registry provides telemarketers with a
list of phone numbers belonging to consumers who wish to limit the
telemarketing calls that they receive.
Registration
and Access
Who
can register?
A person may register
landline and/or mobile phone numbers with the National Do-Not-Call
Registry. Consumers should register only
their own personal telephone numbers.
Fax and business phone numbers are not covered.
The National Do-Not-Call
Registry includes telephone numbers from all area codes of the 50 states, the
District of Columbia, Puerto Rico, U.S. Virgin Islands, Guam, North Mariana
Islands and American Samoa, as well as toll-free numbers.
Who
may access the Registry, and who must?
Telemarketers and sellers
must access the National Do-Not-Call Registry and pay all required fees
before making any telemarketing calls.
Telemarketing service providers may access the registry. The only consumer information that subscribers
will receive from the National Do-Not-Call Registry is registrants’ telephone
numbers, and access is granted for the sole purpose of preventing telemarketing
calls to the listed numbers.
Compliance
with National Do-Not-Call Regulations
Who
enforces National Do-Not-Call regulations?
The FTC’s Telemarketing
Sales Rule (“TSR”) imposes a number of telemarketing restrictions in connection
with the National Do-Not-Call Registry.
Additional regulations are implemented and enforced by the FCC. In some circumstances, state attorneys
general are also able to enforce provisions pertaining to the National
Do-Not-Call Registry.
Regulations
Related to the National Do-Not-Call Registry
A person may violate the
TSR and other federal telemarketing regulations by:
· – Placing a telemarketing call to a person
whose number is on the Registry, unless the caller qualifies for one or
more of the exemptions outlined below;
· –Using the Registry for any purpose other
than complying with applicable regulations; and/or
· – Interfering with a person’s right to be
placed on the Registry.
Established
Business Relationship Exemption
A seller may call a
consumer whose phone number is on the National Do-Not-Call Registry (provided
the consumer has not also asked to be placed on the seller’s internal
do-not-call list) if the consumer has:
· – Purchased,
rented or leased the seller’s goods or services, or entered
into a financial transaction with the seller, within 18 months preceding the subject telemarketing call; or
· – Inquired
about or applied for the seller’s goods or services within 3 months preceding the subject telemarketing
call.
Importantly, the
Established Business Relationship exemption does not necessarily apply
when the calling party is one of the seller’s subsidiaries or affiliates.
Express Written Consent Exemption
Sellers and telemarketers
are allowed to call consumers who expressly agree in writing to receive calls
by or on behalf of the seller, even if the consumer’s number is in the National
Do-Not-Call Registry. The request must
be clear and conspicuous, the consumer’s consent must be affirmative and the agreement
must include the number to which calls may be placed.
“Safe
Harbor” Exemption
A seller or telemarketer
will not be subject to civil penalties or sanctions for calling a number on the
National Do-Not-Call Registry if the caller erroneously placed the subject telemarketing call and, as part of
its routine business practice:
· – Establishes, implements and enforces
written internal do-not-call procedures;
· –Maintains an internal do-not-call list;
·
Trains its personnel and affiliates in
these procedures; and
· – Synchronizes its calling lists with an
updated version of the National Do-Not-Call Registry every 31 days.
Note:
State Do-Not-Call Registries and Regulations
In addition to
regulations related to the National Do-Not-Call Registry and internal
do-not-call lists, approximately 13 states have implemented their own do-not-call
registries and associated prohibitions. Sellers and telemarketers should also ensure
that they are in compliance with state do-not-call rules and regulations.
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