Meeting the requirements of federal and state Do-Not-Call laws (DNC) is a key component of telemarketing compliance. The National Do-Not-Call Registry is a national database that permits consumers to register their telephone numbers to prevent unsolicited calls from telemarketers and others. The DNC rules generally prohibit companies from placing telemarketing calls to consumers whose numbers are listed in the National DNC Registry, subject to certain exceptions. In addition, consumers may elect to be added to a company’s internal, company-specific DNC list.
How do companies effectively monitor the National DNC Registry to ensure compliance and avoid litigation under the Telephone Consumer Protection Act (TCPA) and related state laws? This legal alert discusses five key tips for implementing and maintaining an effective DNC compliance policy.
1. DNC Compliance Requires Checking Both Federal and State Registries
Federal regulations require that companies engaged in telemarketing scrub their calling lists and databases to avoid calling numbers listed on the National DNC Registry. While many states have adopted the National DNC Registry as their official statewide registry, 12 states including Colorado, Florida, Indiana, Louisiana, Massachusetts, Mississippi, Missouri, Oklahoma, Pennsylvania, Tennessee, Texas and Wyoming continue to implement separate state registries. Residents in these states may register their telephone numbers on their state’s DNC list, and companies must abide by state DNC rules in addition to federal rules. A handful of states permit a consumer to file a private lawsuit for state law violations of the DNC rules, similar to TCPA litigation under federal law.
As a result, companies seeking to implement an effective DNC compliance policy must ensure that their employees and third-party vendors check their call lists against all applicable DNC databases before placing calls to consumers.
2. Put It In Writing: A Company-Specific DNC List Requires a DNC Compliance Policy, Implementation and Tracking of Opt-Outs
Under the TCPA, companies may not make telemarketing calls to consumers who have requested not to receive calls made by or on behalf of specific companies. Companies must, therefore, maintain company-specific DNC lists. Companies may not make telemarketing calls (or have third-parties make calls on their behalf) unless, and until, they have implemented procedures to maintain their internal DNC list. Stated differently, companies must honor requests to stop calling, and maintain procedures for doing so.
TCPA rules articulate minimum standards for company-specific DNC compliance, including:
- A written policy. Companies or third-party vendors engaged in telemarketing should have a written policy, available on demand, for maintaining a company-specific DNC list;
- Recording DNC requests. If a company making a call for telemarketing purposes (or on whose behalf the call is made) receives a request from a consumer not to receive calls from that company, the company should record the request and place the subscriber's name, if provided, and telephone number on the company-specific DNC list;
- Honor DNC requests promptly.The consumer's DNC request must be honored within a reasonable time, but no later than thirty (30) days from the date of the request;
- Affiliated person or entities. The consumer’s DNC request applies to affiliated entities, if the consumer reasonably would expect them to be included, given the identification of the caller and the product or service being advertised;
- Training of personnel. Personnel participating in telemarketing must be informed and trained in the existence and use of the company-specific DNC list;
- Confidentiality. A consumer's DNC request may not be shared with any third-party, other than the entity on whose behalf a telemarketing call is made or its affiliate, without the consumer's prior express consent; and
- Maintenance of DNC Lists. Under federal law, a company-specific DNC request must be honored for five years from the time the request is made (state laws vary).1
3. Know the Limits of the Established Business Relationship Exception
Federal DNC regulations provide an exception for calls to current consumers or those who have recently requested information from a company. Companies may call a consumer listed on the National DNC Registry when, the seller or telemarketer “can demonstrate that the seller has an established business relationship (EBR) with such person, and that person has not stated he or she does not wish to receive outbound telephone calls.”2 Under DNC rules, a company has an established business relationship with a consumer if: (a) the consumer has entered into a transaction with the seller within the previous 18 months, or (b) the consumer inquired about the seller’s goods/services within the previous three months.
State DNC rules can vary, however, on the scope of the EBR exception. Although many state laws are harmonized with federal laws, certain states have imposed EBR rules that are more restrictive than the federal rules. There are generally two areas of divergence between the state and federal EBR rules. First, some states implement an EBR exception that extends for a shorter amount of time than the 18-month period provided under the federal rule (generally 12 months). Second, some states implement a more restrictive EBR definition that does not permit communication based solely on a consumer inquiry.
4. Maintain DNC Compliance Policies and Procedures to Avoid Litigation Risks
DNC violations can create significant litigation risk under the TCPA. Class action lawsuits are common, and with statutory damages of $500 per call (and up to $1,500 per call for willful violations), exposure can escalate rapidly into the millions of dollars. In one notable (and extreme) series of cases, courts have entered judgments for more than $300 million against a company for systemic DNC compliance failures. The wave of litigation is likely to continue.
One key mitigation strategy for DNC is to qualify for the “safe harbor” provision for bona fide errors. FCC rules permit companies to avoid liability for inadvertent calls to numbers on the National DNC Registry, provided each company has certain procedures in place. In order to invoke the TCPA’s safe harbor provision, companies must demonstrate that, as part of the seller’s or telemarketer’s routine business practice, they have:
- Established and implemented written procedures;
- Conducted employee training;
- Maintained and recorded a list of telephone numbers the seller or charitable organization may not contact;
- Established a process to prevent telemarketing to any telephone number on the National DNC Registry;
- Checked call lists against a version of the National DNC Registry obtained within the past month;
- Maintained records documenting this process;
- Monitored and enforced compliance with the procedures; and
- Purchased the National DNC Registry without participating in an arrangement to share costs of access.3
This safe harbor provision, although limited to calls made as a result of bona fide error, underscores the need for companies to implement a comprehensive DNC compliance policy.
5. Keep it Straight: DNC Compliance is in Addition to TCPA Autodialer Compliance
One common misconception is that compliance with DNC rules alone is sufficient to avoid TCPA liability. The DNC compliance is only half the battle. The TCPA requires that companies obtain consent – written or express – prior to autodialing, sending prerecorded messages, or blast texting. These requirements are separate and distinct from, and in addition to, DNC requirements.
For instance, companies may not make autodialed telemarketing calls to consumers, even after checking the National DNC Registry, unless the consumer has provided signed written consent to receive autodialed calls. Similarly, companies calling consumers under the EBR exception (consumers with whom the company has recently done business) are permitted to make manual calls under DNC rules, but cannot make autodialed calls without prior express written consent. TCPA regulation is a multilayered set of requirements; therefore, an effective compliance program must consider both DNC and autodialer rules.
DNC compliance is an important part of any telephone marketing campaign. With the ongoing wave of lawsuits alleging DNC violations, companies will need to maintain a focus on its compliance efforts to mitigate their potential risks under the TCPA.
1 47 C.F.R. § 64.1200(d).
2 16 C.F.R. § 310.4(b)(iii)(B)(2).
3 47 C.F.R. § 64.1200(c)(2).
If you have any questions about this legal alert, please feel free to contact any of the attorneys listed under 'Related People/Contributors' or the Eversheds Sutherland attorney with whom you regularly work.
The Telephone Consumer Protection Act (TCPA) is a law passed by Congress in 1991 to protect consumers against unwanted telephone solicitation. The National Do Not Call (DNC) Registry is a specific provision of TCPA enforcement that was created by the Do-Not-Call Implementation Act of 2003.What is the difference between DNC or DNS and TCPA revocation? ›
The key difference between the DNC and TCPA is The TCPA compliance is simply a bill passed by Congress to shield legal consumers and customers against unwanted telephone solicitation while the DNC on this a specific provision of TCPA enforcement to scrub that was created by the Do-Not-Call Implementation Act of 2003.What does the TCPA require? ›
Under TCPA regulations, “prior express written consent” requires a written agreement, signed by the consumer, that includes among other things the telephone number, that specifically authorizes telemarketing by automatic dialing/texting or prerecorded voice, and that is not required as a condition of purchase.What is the Do Not call concept? ›
What Is the Do Not Call Registry? The Do Not Call Registry is a list of phone numbers that telemarketers are prohibited from calling in most circumstances. A person can register his or her number at the U.S. Federal Trade Commission's website at www.donotcall.gov/.What are 5 major types of violations TCPA? ›
Common TCPA Violations and Fees
Autodialing cell phones listed in the Do-Not-Call Registry. Automated messages delivered to cell phones without PEWC (consent). Unsolicited marketing robocalls. Inadequate or absent disclosures during a phone call.
The DNC List only prohibits sales calls. An important thing to know about the National Do Not Call List—it can only stop sales calls. You may continue to receive: Political calls.What is a DNC violation? ›
It is a violation of the Telemarketing Sales Rule 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.What are three exceptions to TCPA? ›
As we previously mentioned, this rulemaking was initiated to address the TRACED Act's requirement that the FCC specify three components in any of its TCPA exemptions: “the classes of parties that may make such calls,” “the classes of parties that may be called,” and “the number of such calls” covered by the exemption.What is the fine for for calling a DNC? ›
Companies that illegally call numbers on the National Do Not Call Registry or place an illegal robocall can currently be fined up to $43,792 per call.What calls are exempt from TCPA? ›
- Package Delivery Calls to a Wireless Number.
- Financial Institution Calls to a Wireless Number.
- Healthcare Provider Calls to a Wireless Number.
- Inmate Calling Service Calls to a Wireless Number.
The Federal Communications Commission (FCC) 2015 Omnibus Declaratory Ruling and Order reaffirmed that text messages are subject to the same Telephone Consumer Protection Act (TCPA) restrictions as phone calls.What is prohibited by the TCPA? ›
The TCPA restricts telephone solicitations (i.e. telemarketing) and the use of automated phone equipment. The Act limits the use of pre-recorded voice messages, automatic dialing, and SMS and fax use.What are the four types of calls? ›
- call. noun. an act of telephoning someone.
- cold call. noun. an unexpected telephone call or visit by someone trying to sell something.
- collect call. noun. ...
- conference call. noun. ...
- courtesy call. noun. ...
- halfalogue. noun. ...
- long-distance. adjective. ...
- outside line/call. phrase.
- Do Not Call Lists.
- National Do Not Call List.
- State Do Not Call Lists.
4. 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.What are the four 4 violation types? ›
Some are more serious than others, but they all have the potential to cause harm to employees or the company as a whole. In this blog post, we will discuss the four most common types of violations: safety, sexual harassment, wage and hour, and whistleblower.How do you stay TCPA compliant? ›
- How to Handle Being TCPA Compliant. ...
- Get Consent for Everything. ...
- Check the DNC Regularly. ...
- Scrub All Collections Telephone Numbers. ...
- Know the Difference Between Cell and Landline Numbers. ...
- Cross-Reference Numbers for Consent. ...
- Double-Check Your Pre-Recorded Scripts.
- Get express written consent.
- Keep messages conversational.
- Use texting services that support local 10-digit long codes (10DLC).
- Include clear CTAs, terms of service, and privacy policies.
- Support "STOP" for opt-out.
- Maintain records for opt-in and opt-out with a DNC (do not contact) list.
In general, unsolicited calls to people on this registry are illegal, unless the caller falls under one of the exemptions (see below). There's no deadline for adding your phone number to the DNC list.Can you text someone on the DNC list? ›
While campaign calls and texts are exempt from the Do Not Call List requirements, the Telephone Consumer Protection Act contains specific rules they must follow. In general, robocalls and robotexts to mobile phones require prior consent and calls to landlines are allowed without prior consent.
- " Mr. ...
- "Oh, I thought you were my ride? ...
- "I'm busy now, but I'm free around midnight. ...
- "I am planning to audition for The Voice next week. ...
- "What are you wearing?"
- "Wanna know what I'm wearing?"
- "Can you please call back? ...
- "I am so glad you called.
How long does the Do Not Call Registry last? It is permanent, but this was not always the case. Before the Do Not Call Improvement Act of 2007, numbers only stayed on the Do Not Call Registry for five years. Since February 2008, numbers added to the registry stay on a permanent basis.Can a company be liable for abandoned calls? ›
The Telemarketing Sales Rule (TSR) safe harbor has a 3% call abandonment rule. Under the TSR, it is illegal for telemarketers to abandon any outbound call—with an abandoned call being defined as a call that does not connect the consumer to a sales representative within two seconds of the consumer answering the phone.Does DNC apply to cell phones? ›
Placing telemarketing calls to wireless phones is - and always has been - illegal in most cases.How do you avoid TCPA violations? ›
- Get familiar with the FCPA requirements. The Department of Justice has a neat little publication called the Lay-Person's Guide to FCPA. ...
- Establish an effective FCPA compliance program. ...
- Maintain accurate books and records. ...
- Get a government reality check.
Alternatively, you can verify registration over the phone by calling 1-888-382-1222 from the number you'd like to confirm is on the list.Can I legally text message my customers? ›
The Telephone Consumer Protection Act (TCPA) is a United States federal law that requires businesses to get expressed written consent from consumers using mobile devices before sending them marketing text messages.What are 4 items that should be listed on a telephone message? ›
- Next time you have to leave a phone message, try to make sure that all of the following points are covered:
- Your Name. ...
- Recipient's Name. ...
- Are You Returning a Call? ...
- Reason for the Call. ...
- Phone Number. ...
- Availability. ...
- Other Pertinent Information.
According to the Telephone Consumer Protection Act (TCPA), which has been the FCC's leading regulation in electronic communications since 1991, businesses and organizations must obtain written consent from individuals before sending them any text messages.Can telemarketers call before 8am? ›
It is unlawful for any commercial telephone seller or salesperson to make a commercial telephone solicitation phone call before 8 a.m. or after 9 p.m. local time at the called person's location.
- Answer the call within three rings.
- Immediately introduce yourself.
- Speak clearly.
- Only use speakerphone when necessary.
- Actively listen and take notes.
- Use proper language.
- Remain cheerful.
- Ask before putting someone on hold or transferring a call.
8 Steps to a Successful Sales Call
- Preparation Prior to Sales Call. ...
- Greeting and Introduction. ...
- Qualifying. ...
- Surveying. ...
- Handling Objections. ...
- Presentation. ...
- Closing. ...
- Customer Maintenance.
- The inbound component. (how you want your call answered)
- The call handling component. (how you want your call handled)
- The message delivery component. (how you want your captured information delivered)
Scrubbing a list using a manual method consists of downloading all of the do not call phone numbers from the National Do Not Call Registry in the area codes for which you are registered, then combining the lists into one do not call list, then checking this list of hundreds of thousands, if not millions, of numbers you ...Should I press 2 to be placed on the do not call list? ›
Pressing “2” may work, but more than likely it does nothing more than end the call; and you'll probably continue receiving calls.What does it mean to scrub the Do Not call list? ›
The term “scrub” means to compare the number or numbers you'd like to call against the numbers on national and state Do Not Call lists. If the number you'd like to call matches a number on a prohibited list, it's best not to call it, lest you be subject to the various financial penalties of the Do Not Call Laws.Who is exempt from telemarketers do not call list? ›
There are some exemptions to the Do Not Call rules. Because of the limits to FTC's authority, the Registry does not apply to political calls or calls from non-profits and charities (but the Registry does cover telemarketers calling on behalf of charities).What is a DNC program? ›
DNC refers to Direct or Distributed Numerical Control and is a vital building block for true Industry 4.0 and IIoT (Industrial Internet of Things) integration for machine shops. In its most simplistic form DNC software and systems take over where CAM (Computer Aided Manufacturing) leaves off.What is the DNC list? ›
1. What is the National Do Not Call Registry? The National Do Not Call Registry is a list of phone numbers from consumers who have indicated their preference to limit the telemarketing calls they receive.What is internal DNC? ›
The internal DNC list refers to the Entity-Specific Do Not Call Provision. This provision mandates that telemarketers keep and maintain their own do not call list, specific to their organization. When a consumer asks to be put on your do not call list, you should honor that request immediately.
The DNC is responsible for articulating and promoting the Democratic platform and coordinating party organizational activity. When the president is a Democrat, the party generally works closely with the president.What is the difference between DNC and CNC? ›
DNC manage the information distribution to the number of machines. CNC computer control one NC machine. Using DNC programmer can control more than one NC machine as required. CNC software is to increase the capability of the particular machine tool.What are the advantages and disadvantages of numerical control? ›
This instruction is designed to do a particular job. NC machines has capability to change the program for each job ie when job changes the program instruction is also changed. It is easier to change the program instruction than to modify the production equipment. This flexibility reduces the overall production cost.How does the DNC list work? ›
gives you a choice about whether to receive telemarketing calls. You can register your home or mobile phone for free. After you register, other types of organizations may still call you, such as charities, political groups, debt collectors and surveys. To learn more, read our FAQs.Who does the DNC list apply to? ›
Working with the Federal Trade Commission, the agency developed the national Do Not Call Registry, which applies to all telemarketers and covers interstate and intrastate telemarketing calls. Commercial telemarketers are not allowed to call you if your number is on the registry, subject to certain exceptions.How do you comply with Do Not call list? ›
Compliance with the National DNC Registry Requirements
Expressly agree in writing to receive calls by or on behalf of the seller; Provide this affirmative consent through a clear and conspicuous request; and. Provide the number to which calls may be placed as a part of this agreement.
DNC violations can create significant litigation risk under the TCPA. Class action lawsuits are common, and with statutory damages of $500 per call (and up to $1,500 per call for willful violations), exposure can escalate rapidly into the millions of dollars.How can you tell if someone is a DNC list? ›
Visit DoNotCall.gov or call 1-888-382-1222 to verify the status of, or unsubscribe, your phone number on the registry.Can you get in trouble for calling DNC? ›
Managed by The Federal Trade Commission, the DNC Registry gives consumers an opportunity to reduce unsolicited sales calls by making infractions of this law by telemarketers punishable by substantial fines.What messages are excluded DNC? ›
- Marketing messages or calls from organisations with whom you have an ongoing relationship, if the messages are about products or services that are relevant to you. ...
- Messages that are part of a market survey or research;
- Messages related to charitable or religious causes;