Now that the fate of the National Do Not Call Registry (the "Registry") rests with the 10th Circuit Court of Appeals, compliance questions arise as direct marketers scramble to keep up with the developments in this area.
As direct marketers ("sellers") move forward with telephone solicitations, several do not call compliance issues must be considered pursuant to the FTC's Telemarketing Sales Rule (the "TSR") and the FCC's rules under the Telephone Consumer Protection Act (the "TCPA Rules"). Generally, in order to ensure compliance, it is imperative that sellers: (a) develop, implement, and follow a written Do Not Call Policy; (b) train personnel and third party telemarketers ("telemarketers") in procedures established as part of the Do Not Call Policy; (c) scrub calling lists against the Registry, as well as any remaining state lists;1 (d) understand the parameters of the existing business relationship exemption for themselves and their affiliates; (e) ensure compliance with company-specific internal do not call obligations; (f) keep accurate, detailed records of compliance; and (g) appoint a specific person to be a "Chief Telemarketing Officer."
Develop A Written Do Not Call Policy
Both the TSR and TCPA Rules offer a "safe harbor" pursuant to which sellers and telemarketers will not be liable for calling a number on the Registry, if: a call is the result of an error and the seller or telemarketer can demonstrate that its routine business practices include: (a) establishment and implementation of a written policy for compliance procedures; (b) training in the compliance procedures for its personnel and any other entities assisting in compliance; (c) maintenance of a company-specific list of telephone numbers that must not be called; (d) a process to prevent calling numbers on the Registry; and (e) the monitoring and enforcement of its written compliance policy on an on-going basis.
Creating a written Do Not Call Policy is the first step to establish compliance and without it, sellers and telemarketers will never be able to meet the remaining prongs of the safe harbor. The written policy must explain the seller's or telemarketer's procedures for complying with the Registry. The policy should, at a minimum, address the following:
Subscribing to and paying for the use of the Registry.
Downloading telephone numbers on a timely and quarterly basis from the FTC's website at https://telemarketing.donotcall.gov/.
Procedures for accepting and recording company-specific do not call requests, and maintaining a company-specific do not call list ("Company Specific List").
Time frame for responding to requests to be placed on the Company Specific List.
Scrubbing calling lists against the Registry and the Company Specific List.
Procedures for dealing with a person who claims his or her number is on the Registry or the Company Specific List.
Procedures for dealing with an inadvertent call to a person whose number is on the Registry or the Company Specific List.
Training personnel and, in the case of sellers, third party telemarketers, to comply with the requirements of the Registry and the Company Specific List.
Use of the Registry list and the Company Specific List is prohibited for any purpose other than to honor such do not call requests.
Ensuring that compliance with the Registry and the Company Specific List is monitored.
Once the written Do Not Call Policy has been completed, it can be used as a road map for working out the specific technical details of how to comply. The written Do Not Call Policy should be used as general guide for all internal and external operations that are implicated in telemarketing activities.
Train Personnel And Vendors
Sellers and telemarketers must periodically train their own personnel, and, in the case of sellers, any telemarketing vendors acting on their behalf, with respect to the practices and procedures that are necessary to comply with the policy and ideally, the laws that impact telemarketing activities.
Scrub Calling Lists
While the Do Not Call safe harbor is helpful, it cannot be relied upon as a substitute for scrubbing calling lists against the numbers on the Registry and on any Company Specific List.2
Don't Forget About State Specific Lists
There are two important issues to be aware of with respect to state-specific lists. First, the states have been given approximately eighteen months to download any existing state do not call registries into the Registry. Even though most states have folded their state specific lists into the Registry, there are a few hold-out states, including Alaska, Georgia, Idaho, Indiana, Louisiana, Missouri, Texas, Wisconsin, and Wyoming. Therefore, marketers must still scrub against these state lists in addition to the Registry. In November 2003, the State of Texas demonstrated its strong enforcement posture with respect to its state do not call list when the Texas Attorney General brought lawsuits against fifteen telemarketers that allegedly violated the "Texas No-Call" law.
Second, even in those states which have merged their lists into the Registry, state regulators retain their ability to enforce do not call violations made to state residents under state specific statutes. This leaves open the possibility of both state and federal regulatory action, as well as private causes of action, for violation of both state and federal do not call provisions.
Be Wary Of Affiliates' Existing Business Relationships
Sellers can take advantage of an exemption to the do not call provisions of both the TSR and TCPA Rules, if there is an "existing business relationship" ("EBR") between the seller and the person being called. An EBR exists where a purchase or transaction has occurred within eighteen months, or where an inquiry or application regarding offered products or services has been made within three months, immediately preceding the solicitation and the relationship has not been terminated by either party.
Whether an affiliate or company otherwise related to the company with which the EBR exists can also take advantage of the EBR is a much more complicated issue. The test here is the reasonable expectation of the consumer. The FTC has indicated that "[a]n 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 believe such a call is inconsistent with having placed his or her number on the National Do Not Call Registry."
In considering whether or not a consumer would reasonably expect to be called by an affiliate, one must ask are the affiliate's goods or services similar to the seller's and is the affiliate's name identical or similar to the seller's? The greater the similarity between (1) the nature and type of goods sold by the seller and any subsidiary or affiliate, and (2) the identity between the seller and any subsidiary or affiliate, the more likely it is that the call would fall within the EBR exemption.
Both the FCC and the FTC make specific use of the words "affiliate" and "subsidiary" under their respective rules, and these terms generally have established meaning under corporate law. An "affiliate" is generally understood to mean a company, incorporated or not, in which a certain percentage or greater interest is owned, directly or indirectly, by another company. A "subsidiary," is generally understood to mean a company that is owned by another company, and such other company has the ability to control the subsidiary. Entities such as franchisees or independent car dealerships, both of which are independently owned entities, would not typically be considered "affiliates" or "subsidiaries" of a marketer under these definitions. Accordingly, a strict interpretation of the EBR exemption would suggest that these and similar types of entities could not take advantage of the EBR exemption with their franchisor or motor vehicle manufacturer, respectively, despite the fact that the goods and services offered and the names of the entities are likely to be virtually identical.
Don't Forget About Company Specific Do Not Call Obligations
One of the most important factors to remember in complying with the do not call provisions of the TSR and TCPA Rules is the need to maintain a Company Specific List. As a practical matter, scrubbing a calling list against the Registry is not enough, since a consumer's request to be placed on a company specific do not call list trumps any exemptions under the Registry between the seller and the consumer. Once a calling list has been scrubbed against the Registry, it must also be scrubbed against any Company Specific List.
Even if a written Do Not Call Policy has been developed, and all of the other procedures and practices necessary to meet the Do Not Call safe harbor have been implemented and followed, such efforts will be wasted if compliance cannot be proven. In general, the TSR requires records to be kept for a period of twenty-four months, and under the TCPA Rules, the retention period, for records of those consumers who have requested not to be called, is five years. Therefore, a document retention policy relating to telemarketing records must be implemented and followed. Detailed and accurate records may be the only defense against claims of a Do Not Call violation.
Put Someone In Charge
All of the foregoing is meaningless if someone is not appointed to oversee and ensure compliance with the TSR, TCPA Rules and state telemarketing laws. A responsible person must be appointed to monitor and ensure compliance with the Do Not Call Policy and applicable laws - a "Chief Telemarketing Officer." This person must be familiar with the company's telemarketing practices and related laws and act as a central point of contact for coordination and compliance questions. Without designating such a person, adherence to regulations and policies may lapse, and the risk of regulatory action is likely to rise.
Telemarketing can still be an effective part of any sales and marketing strategy. However, in the new era of the Do Not Call Registry and increased regulatory and private actions, it is essential that both sellers and telemarketers know how to comply with the law, and ultimately, understand how to reduce their legal risks. With enforcement actions likely to increase in the months to come, taking the steps outlined above will help achieve that goal. 1 According to the FTC's website, thirteen of the twenty-seven states that currently have a do not call registry have merged their lists with the Registry. http://www.ftc.gov/bcp/conline/edcams/donotcall/media/2003/06/state_interaction_facts.pdf, December 18, 2003.
2 While the FTC currently requires telemarketers to scrub their lists against the Registry on a quarterly basis, the Appropriations Bill passed by the House on December 8, 2003 contains language that, if enacted, would amend the Registry to require telemarketers to scrub their lists against the Registry on a monthly basis. On the state level, the frequency with which telemarketers must scrub their lists against state do not call lists varies from state to state.
Joseph Lewczak is a Partner and Sofia Rahman is an Associate in the New York office of Davis & Gilbert.