QUESTION
We are telemarketers and sell our leads to mortgage lenders. The issue
for us is whether we can avoid liability if we are in error, such as if we
place a call to a person who has made a request not to be called. What can be
done to limit or avoid our liability in these instances?
ANSWER
The regulatory framework that is responsive to this inquiry is called
the Telemarketing Sales Rule (“TSR”). The way to characterize this scenario is
to emphasize that the call has been made in error either to a person who has
requested a company not to call or where the person has listed the contact
number in the National Do Not Call Registry. The former is known as a
company-specific request.
A company-specific request to not be called must be maintained on a
list. These are persons who have directly advised the company not to contact
them by telephone. A seller that calls a person who is on (or should have been
placed on) the seller’s company-specific do not call list engages in an abusive
telemarketing practice in violation of the Telemarketing Sales Rule. [16 CFR §
310.4(b)(1)(iii)(A)]
The National Do Not Call Registry is the registry maintained by the FTC
and FCC of persons who place their telephone numbers on it so as not to be
called by any company subject to the do not call restrictions. [16 CFR §
310.4(b)(1)(iii)(B); 14 CFR § 64.1200 et seq.]
If a seller or telemarketer can establish that as part of its routine
business practice it meets the following requirements, it may not be found
liable for engaging in an abusive act or practice under the TSR if the seller
or telemarketer, in error, calls a person who has made a company-specific request
not to be called or calls a number on the National Do Not Call Registry:
- The seller or telemarketer has established and implemented written procedures to honor requests that a person not be called;
- The seller or telemarketer has trained its personnel, and any entity assisting the seller or telemarketer in its compliance, in the procedures;
- The seller, telemarketer, or someone else acting on behalf of the seller has maintained and recorded a company-specific do not call list;
- The seller or telemarketer uses, and maintains records documenting, a process to prevent calls to any telephone number on a company-specific do not call list or the National Do Not Call Registry, a copy of which Registry was obtained from the FTC no more than thirty-one days before the date of any calls made;
- The seller, telemarketer, or someone else acting on behalf of the seller monitors and enforces compliance with the entity’s written do not call procedures; and
- The call is a result of error. [16 CFR § 310.4(b)(1)(iv)]
Jonathan Foxx
President & Managing Director
Lenders Compliance Group
