Telemarketing calls have become more and more ubiquitous in recent years and, based on consumer reports, more and more annoying. Nearly everyone with a telephone-landline or mobile-has likely been bothered with an unrequested and unwanted telemarketer call that may include an automated and prerecorded message.
Despite legislation meant to protect consumers, bothersome calls continue to be received. Our firm is investigating potential lawsuits on behalf of individuals who have been harassed with unwanted telemarketer calls.
Laws Prompted by Unsolicited Telemarketing Calls
In response to consumer frustration with unwanted telemarketing calls, Congress passed the Telephone Consumer Protection Act (TCPA) in 1991. Following the TCPA, the Federal Communications Commission (FCC) put rules in place that prohibit telemarketers from calling before 8:00 a.m. or after 9:00 p.m. Telemarketers must also comply with mandates that include providing the following to the consumer:
- The caller’s name
- The name of the person or entity on whose behalf the call is being made
- The telephone number or address at/from which the person or entity making the call may be contacted
Unsolicited telemarketing telephone calls continued, prompting the FCC to enact the National Do-Not-Call List in 2003. If a consumer contacts the National Do Not Call List and places his/her home or cell phone number on this registry, callers become prohibited from calling any number on the List. Individuals may register a business number on the National Do Not Call List; however, solicitations to business telephone numbers on the registry are not against the law.
National Do Not Call Registry Prohibited Calls
The National Do Not Call Registry prohibits telephone solicitation. A telephone solicitation is a telephone call meant to be an advertisement. A telephone solicitation does not include:
- Telephone calls or messages placed with a consumer’s prior permission
- Telephone calls or messages made by, or on behalf, of a tax-exempt, non-profit organization
- Telephone calls or messages from a person or organization/entity with whom the consumer has an established business relationship (EBR). This type of relationship exists if the consumer made an inquiry, application, purchase, or transaction regarding products or services offered by the person or entity involved and is only in effect for a specific period of time.
A consumer may end an EBR, and related calls, by advising the person or entity not to place any more solicitation calls to the consumer’s home. The EBR remains in effect for 18 months after the last business transaction or three months after the consumer’s last inquiry or application. After these time frames, calls placed to a consumer’s telephone number by that person or entity are considered telephone solicitations and become subject to the national Registry rules.
How to Register with the National Do-Not-Call Registry
A consumer may register-at no cost-his/her telephone number(s) on the national Do-Not-Call list by telephone or by Internet. To register by Internet, contact donotcall.gov. To register by telephone, call, toll-free, 1-888-382-1222 (voice) or 1-866-290-4236 (TTY).
When registering by telephone, the consumer must be calling from the telephone to be registered.
A consumer may register up to three telephone numbers at one time on the National Do Not Call Registry website. Registration verification and complaint submission may also be handled online, as well. Verification information may be received at https://www.donotcall.gov/confirm/Conf.aspx.
Once a number has been on the registry for 31 days, most telemarketers should not call the number. If a personal telephone number is disconnected and reconnected, the consumer must re-register that number.
Do Not Call Registry Violations
If a company is suspected of violating, or has violated the national Do-Not-Call rules, the FCC may issue warning citations and may also impose fines. The FCC does not award individual damages to consumers; although consumers are urged to file a complaint if they feel they are subject to calls that violate the Do-Not-Call rules.
Some states permit consumers to file lawsuits in state court against persons or entities in violation of the national Do-Not-Call rules. Filing a complaint with the FCC does not prevent a consumer from also bringing a lawsuit in state court.
What is Not Covered Under the National Do-Not-Call List?
The Do Not Call Registry prohibits sales/telemarketing calls. The Registry is only for personal telephone numbers and does not include the registration of business telephone numbers. The following entities are exempt from the registry and may still contact consumers:
- Political calls/political campaign calls
- Charitable foundation calls
- Survey and research calls
- Debt collection calls
- Informational calls
- Calls from businesses or entities with which the consumer maintains a relationship
- Calls from firms with which the consumer has given written consent to remain on its calling list
- Companies with which a consumer has an EBR and their affiliates within 18 months; if a consumer inquired about or applied for a service or product, that firm may contact the consumer for three months
If a consumer has placed a personal number on the Do Not Call Registry, but wishes to remain in contact with a specific telemarketer, the consumer should provide the specific telemarketer permission to contact.
Telemarketers may attempt to obtain written consent without consumer knowledge, including by solicitations or emails that release the telemarketers from their do-not-call obligations. Always read all documents and emails before signing and sending them to a marketer to ensure inadvertent permission to be contacted has not been given.
Federal law prohibits a person from using a telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine “without that person’s prior express invitation or permission.” Consumers should only receive fax solicitations from those companies with which they have an EBR.
Any message sent by fax on a fax machine manufactured on or after December 20, 1992 or any message sent by a fax modem board manufactured on or after December 13, 1995, must clearly mark the following in the top or bottom margins of each transmitted page of the message or on the first page of each transmission:
- Date fax sent
- Time fax sent
- Sender identity
- Fax broadcaster, if applicable
- Telephone number of the sender or sending machine-no 900 numbers
A list of companies that the FCC has taken action against for sending junk faxes may be accessed at: www.fcc.gov/eb/tcd/ufax.html. Minimizing Telemarketing Calls Not Covered by the Do Not Call Registry Many telemarketers are exempt from the National Do Not Call Registry; therefore, consumers should be cautious when giving out personal telephone numbers.
- Sweepstakes/Contest Entry Forms: The FTC notes that completing a sweepstakes or contest entry form is only considered giving consent when the form indicates that by signing and providing the phone number, the consumer has given express permission to be contacted by telephone.
- Pre-Printed Checks: Do not pre-print a personal telephone number on pre-printed checks or provide a personal telephone number when registering on Web sites.
- Signed Request: After making a purchase, and if additional marketing calls from the company are not desired, mail a separate, signed notice requesting that the firm place the consumer on its company-specific do not call list. The notice should be sent to the firm’s customer service department or privacy officer. Maintain a copy of the letter.
- Protect Personal Information: Protect personal telephone numbers from telephone books and reverse directories. If a consumer is listed in the telephone book, telemarketers exempt from the Registry may obtain consumer contact information from the telephone company. To prevent any cross-referencing of addresses with telephone numbers, choose to not have information available in the phone book or through directory assistance. If a consumer’s telephone number is “unlisted,” the consumer’s name, address, and telephone number may not appear in the telephone book, but that information may be available through directory assistance and reverse directory assistance. If a consumer’s personal telephone number is “unpublished,” information will not be printed in the phone book and is not available through directory assistance or reverse directory assistance. A consumer may also opt to list his/her name and telephone number, but not his/her address. Telephone companies typically charge a monthly fee for unlisted or unpublished telephone numbers.
A data broker is a company that aggregates consumer information from a variety of sources for the purposes of creating detailed consumer profiles. This information is then sold or shared. Mounting websites sell, or freely release, consumers’ personal information, as well. Information may include names, addresses, and telephone numbers. A list of online information brokers may be assessed at: http://www.privacyrights.org/online-information-brokers-list.
Toll-Free-800, 888, 877, 866-and Other Specialized Numbers, Including 900 Numbers
When a consumer uses toll-free number to contact a business with which that consumer maintains an account or to inquire about a product or service, the consumer’s telephone number may be captured by an Automatic Number Identification (ANI) system. ANI technology automatically identifies and stores the number from which a consumer is dialing. By matching consumer telephone numbers with other lists and street address directories, a consumer’s name and address may be discovered and added to the company’s calling and mailing list. In addition to the number being captured, that information may be shared with affiliates or sold to other entities and interested parties.
Federal law restricts the use and sale of consumer telephone numbers when a consumer places a toll-free or 900 number. FCC regulations indicate that an individual’s consent must be received before a firm may reuse or sell ANI information. A company may reuse ANI information for marketing purposes for a product or service related to the product or service previously purchased by the consumer. Consumers may ask for and utilize a separate toll number for potential long distance charges, or consumers may ask customer service representatives at the toll-free number to be put on the firm’s do not call list.
“Spoofing” and Caller ID Requirements
Federal telemarketing rules prohibit telemarketers from blocking their calling numbers; for example, by listing “out of area” or “unknown caller.” Telemarketers are also legally mandated to provide consumers with their telephone number(s) when asked.
Also, caller ID display may be unethically used to urge consumers to pick up their calls. “Caller ID spoofing” is the use of bogus IDs, which are fairly easily to create using inexpensive software or by routing calls through the Internet. The purpose is to trick consumers into believing an incoming call has been generated by their banks, a known charity, a local business, or a government agency, for example. To help stop caller ID spoofing, Congress passed the Truth in Caller ID Act of 2009; enforcement and rules are handled by the FCC.
Tip: Do not share personal information with a caller, screen calls with an answering machine or voice mail service, and consider purchasing a device to block unwanted calls.
A robocall is a call that utilizes a computerized auto-dialer that delivers a pre-recorded message. The FCC has issued rules issued under the TCPA that are meant to protect cellular and landline telephones from telemarketing robocalls made without prior written consent from the consumer. Also, non-emergency robocalls-telemarketing, informational-mandate a consumer’s permission when made to a cellular phone. Informational calls include political, polling, and other non-telemarketing such as robocalls. Exceptions include critical information, including financial fraud alerts, medication refills, and healthcare appointment reminders.
SMS: Telephone-to-Telephone Text Messages
These messages are subject to the same consumer protections under the TCPA as voice calls, as are Internet-to-telephone text messages originating as emails and sent to an email address that contains a recipient’s wireless number and the carrier’s domain name.