Is Your Internal DNC Policy Compliant?

By Richard NewmanApril 12, 2016

The Telephone Consumer Protection Act has steadily evolved into a hotbed of consumer class action litigation. Statutory damages ranging from $500 to $1,500 per violation, in addition to an increasingly expansive interpretation of the statute by the Federal Communications Commission, have undoubtedly contributed to the rise of TCPA lawsuits.

An often cited violation by plaintiffs is the failure to provide a compliant Do-Not-Call policy and/or to implement appropriate procedures. In pertinent part, the TCPA provides that no person or entity shall initiate any call for telemarketing purposes unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing call. The aforementioned procedures must meet statutory minimum standards. 

For example, those making telemarketing calls must have a written DNC policy, available upon demand, for maintaining a DNC list. Personnel engaged in any aspect of telemarketing must be informed and trained in the existence and use of the DNC list.

Also, if a person or entity making a call for telemarketing purposes (or on whose behalf such a call is made) receives a request not to receive calls from that person or entity, the person or entity must lawfully record the request and place the subscriber’s name, if provided, and telephone number on the DNC list at the time the request is made. Persons or entities making calls for telemarketing purposes (or on whose behalf such calls are made) must honor a DNC request within a reasonable time from the date such request is made. This period may not exceed thirty (30) days from the date of such request.

If such requests are recorded or maintained by a party other than the person or entity on whose behalf the telemarketing call is made, the person or entity on whose behalf the telemarketing call is made will be liable for any failures to honor the DNC request. A person or entity making a call for telemarketing purposes must obtain a consumer’s prior express permission to share or forward the consumer’s request not to be called to a party other than the person or entity on whose behalf a telemarketing call is made or an affiliated entity.

A person or entity making a call for telemarketing purposes must provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted. The telephone number provided may not be a 900 number or any other number for which charges exceed local or long distance transmission charges.

In the absence of a specific request by the caller to the contrary, a caller’s DNC request shall apply to the particular business entity making the call (or on whose behalf a call is made), and will not apply to affiliated entities unless the consumer reasonably would expect them to be included given the identification of the caller and the product/service being advertised.

A person or entity making calls for telemarketing purposes must maintain a record of a consumer’s request not to receive further telemarketing calls. A DNC request must be honored for no less than five (5) years from the time the request is made.

Best business practices also dictate the internal promotion of the DNC policy in employee communications (e.g., internal memoranda, staff meetings, etc.). In fact, personnel should be trained periodically in procedures established pursuant to applicable DNC rules, including how to respond to such consumer requests. Written records of such training should be maintained, in part, because such training is one factor in the “safe harbor,” which may shield a telemarketer from liability for calls placed as a result of an error.

Regularly review your DNC policy and training program with an experienced TCPA compliance and defense attorney to ensure that they remain consistent with applicable law and your business practices. This topic should be of interest to any company engaging commercial telemarketing campaigns, including corporate counsel.

Information conveyed in this article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.

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