Do Not Call Registry
Do-not-call registrations must be honored for a period of 5 years. This applies to phone calls that are made “for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.” Calls that are placed to conduct surveys, market research or for other non-solicitation reasons can be brought within this definition if they serve as a pretext to an otherwise prohibited advertisement or as a means of establishing a business relationship.
Do not call somebody who is on the Do-Not-Call list except:
- If the client has given a prior express permission to receive such calls: The express permission must be evidenced by a signed, written agreement between you and the customer which states that the consumer agrees to be contacted by you and includes the telephone number to which the calls may be placed. The consumer’s consent must be “clear and conspicuous” and not buried “in the fine print of a document where the consumer might not notice it.”
- If the dealership has an established business relationship: An established relationship exists when a consumer has purchased, leased, rented or entered into a transaction with the seller within the eighteen (18) months immediately preceding the date of a call. To the extent that the purchase, lease, rental or financial transaction involved multiple payments or transactions, the 18-month time limit “runs from the date of the last payment or transaction, not from the first payment.” You likely can only treat multiple finance payments as extending the 18-month extended relationship period if you hold the note with, and receive the payment from, the customer. An established relationship also applies to a consumer inquiry or application regarding a product or service offered by the seller within the three (3) months immediately preceding the telemarketing call. The nature of an inquiry must be such as to “create an expectation on the part of the consumer that a particular company will call them.”
- Although the FCC does not define inquiry, it does state that an inquiry regarding a business’s hours or location would not fall within the exemption. To the extent that you rely on an inquiry as to the basis for an established relationship, you should ensure that it is properly documented (e.g., the name of the consumer, the date of the inquiry, the dealership product or service the consumer inquired about, etc.).
- The caller has a personal relationship: The National Do-Not-Call rules do not apply to telephone solicitations to persons with whom the telemarketer has a personal relationship. The term personal relationship refers to an individual personally known to the person making the call. This includes family members, friends, and acquaintances of the caller. It does not include the name of referrals that have been provided by family members, friends or acquaintances.
“The caller has a personal relationship,” be careful in relying on this exemption. The FCC States:
- In determining whether the caller is considered a friend or acquaintance of the caller, we will look at, among other things, whether a reasonable consumer would expect calls from such a person because they have a close or, at least, firsthand relationship. If a complaining consumer were to have expected a call from the marketer, we would be much less likely to find that the personal relationship exemption is applicable.
- To the extent that you rely on this exemption to make a telephone solicitation to someone who has registered his or her phone number on the National Do-Not-Call registry, it is important that you maintain contemporaneous records that enable you to demonstrate the nature of the relationship between the caller and the consumer at the time the call was placed.
Callers are Required to Institute Procedures to Honor Do-Not-Call Requests that Persons Make Specifically to their Business.
- In addition to not placing calls to persons who have registered their phone numbers on the National Do-Not-Call Registry (unless an exemption applies), you also are prohibited from placing calls to consumers who have asked you not to call them.
- You must develop a Company-Specific Do-Not-Call list that records the customer’s name (if provided) and telephone number at the time the request is made. You must honor such requests “within a reasonable time” from the date the request is made. This must occur within 30 days of the date of the request or sooner if you have the capability to honor the request in less than 30 days. You must honor and maintain records of a customer’s request not to receive further calls for a period of 5 years. A customer’s do-not-call request terminates an established business relationship for purposes of telemarketing calls even if the consumer continues to do business with you.