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Telemarketing "Do Not Call" FAQs
The new regulations surrounding the National Do Not Call Registry for telemarketers have raised numerous questions over how cemeteries and funeral homes are affected. The following information is preliminary and more details are being developed by both federal agencies.
You are urged to check with the Federal Trade Commission and Federal Communications Commission Web sites at www.fcc.gov and at www.ftc.gov for more detailed compliance information. In addition, you can now register for access to the registry at www.ftc.gov. Please note that the new regulations will be enforced effective October 1, 2003.
IMPORTANT UPDATE
ALERT: FTC Staff Reconsiders Do Not Call Exemption for Nonprofits
Despite early assurances from Federal Trade Commission staff that nonprofit organizations and third-party telemarketers working for them are not covered under the FTC Do No Call regulations, the ICFA was notified on October 21 that FTC staff now question whether nonprofits are in fact exempt. This concern extends to religious organizations that engage in telemarketing.
The FTC jurisdiction applies only to calls made interstate, that is, from one state to another. The Federal Communications Commission has jurisdiction over intrastate calls, that is, calls made only within one state, under its own Do Not Call regulations. The FCC has exempted "tax-exempt, nonprofit organizations" as well as any third-party telemarketing firms such organizations may use from its Do Not Call regulations.
Many nonprofit organizations are using the FTC Do Not Call registry on a voluntary basis, but this new development could require nonprofit groups, including religious organizations, that sell products or services to comply with the FTC regulations for interstate calls or risk fines of $11,000 per violation. The ICFA Government and Legal Affairs Committee will discuss further action by the association at the ICFA 2004 Fall Management Conference on October 28. More information will provided as it becomes available.
Because this issue has attracted a great deal of public, government and legal attention and the status of the Do Not Call List may change at any time, the ICFA recommends that cemeteries and funeral homes regularly visit the FTC Web site at www.ftc.gov and the FCC Web site at www.fcc.gov for updates.
My business makes telemarketing calls only locally within the state and we don't sell anything over the phone. The purpose of the call is just to make an appointment with the consumer for a face-to-face meeting. So are we affected by this new Do Not Call list?
Yes. Unless your business qualifies for one of the exemptions (see below), even local calls within your state to set an appointment must comply with the Federal Communications Commission (FCC) regulations concerning the Do Not Call list under the Telephone Consumer Protection Act (TCPA).
I understood that "appointment calls" were exempted from the federal telemarketing rules.
This exemption applies to required disclosures under the Federal Trade Commission (FTC) Telemarketing Sales Rule that regulates only interstate calls, that is, calls made from one state to another state. The "appointment call" exemption does not apply to the new Do Not Call list either for interstate calls made under the FTC rule or for in-state and interstate calls made under the FCC law. In other words, there is no "appointment call" exemption for the Do Not Call list requirements. In addition, all types of calls must comply with requirements on predictive dialing, Caller ID blocker, unsolicited faxes, and related issues in the FTC and FCC regulations.
Are there any exemptions I can use to legally avoid complying with the Do Not Call list?
There are four basic but relatively narrow exemptions. Tax-exempt nonprofit organizations are not covered under the FCC Do Not Call regulations affecting instate calls, but FTC staff has notified the ICFA that it is reconsidering whether nonprofit organizations are exempt for calls made interstate, that is, from one state to another, under the FTC Do Not Call regulations.
The other exemptions involve situations where the consumer being called has given your company express written permission to call his or her telephone number that they provide to you; where there is an "established business relationship" between your company and the consumer that allows you to call up to 18 months after a business transaction or three months after an inquiry or application; or where the caller personally knows the consumer being called such as a family member or a friend. This last exemption applies only to in-state calls under the jurisdiction of the FCC.
Does my business still have to maintain our in-house Do Not Call list?
Yes. The inhouse or company-specific Do Not Call list required by the FCC's Telephone Consumer Protection Act of 1991 is still in effect, and such lists must be maintained, in addition to your business complying with the national Do Not Call list. In addition, the FTC Telemarketing Sales Rule also requires an in-house company-specific Do Not Call list for interstate calls under its jurisdiction.
Are survey calls excluded from the national Do Not Call list requirements?
Legitimate market research, such as surveys, are not covered under the Do Not Call list requirements. However, FTC and FCC staff will be publishing compliance guidelines that state that any use of a survey call to target individual consumers for solicitations will be considered "telemarketing" and subject to the Do Not Call requirements. For example, if a survey call asks a consumer if he or she would be interested in purchasing a type of service or merchandise, and that information then is used to contact the consumer to encourage such purchases, the survey call is considered telemarketing and subject to the Do Not Call restrictions.
My state has its own Do Not Call List. Does my business have to comply with both the state and the national Do Not Call lists?
The recent law is so new that details are still being worked out between the states and the FTC and FCC. It is hoped that the state lists will be merged into the national Do Not Call list, but because some state telemarketing laws are more stringent than the federal laws, there may in fact exist two separate lists in some states. More information will follow.
How do I obtain and use the national Do Not Call list? How much will it cost?
Access to the Do Not Call list will begin in September but the details are still being developed. Businesses will be required to remove or "scrub" phone numbers from their lists that appear on the Do Not Call list. Telemarketers must also continue to scrub phone numbers that originate from their own in-house Do Not Call list. In addition, telemarketers must update their lists with the national Do Not Call list at least once every three months.
Each business can obtain up to five area codes on the national Do Not Call list free of charge. After that, the fee is $29 annually per area code with a maximum annual fee of $7,250 for access to the entire national list.
What if we call somebody by mistake who is on the national Do Not Call list?
There are provisions in the regulations for good-faith compliance and mistakes. Obviously, a business must show that it has made reasonable efforts to comply by having written procedures and obtaining the Do Not Call list for the area codes it is calling, has scrubbed its list every three months, and has trained its staff in compliance, among other things. Both the FCC and the FTC tend to look for a pattern of misconduct rather than an isolated call. However, the fines for noncompliance are $11,000 per violation.
Are there any groups challenging this new law in the courts?
Yes. Since the new telemarketing restrictions are having a significant impact on virtually all industries in the United States, major telemarketing firms and trade associations have filed two separate lawsuits in federal courts challenging the Do Not Call list as an unconstitutional restriction of commercial free speech. In April, a federal district court in Oklahoma denied telemarketers' request for a preliminary injunction against the FTC to block implementation of the Do Not Call registry. The FCC, in its extensive Report and Order, states that the Do Not Call list and related telemarketing restrictions are constitutional.
Will the FCC and the FTC be publishing compliance guides with examples?
Yes. Based on conversations by ICFA staff with federal regulators, there are many details involved in compliance that have yet to be worked out, including how the FCC and the FTC will divide up compliance and enforcement responsibilities. Cemetery and funeral services marketers should check back here and on the FCC and FTC Web pages for the latest information.
ICFA members with specific questions can also call Association headquarters at 1-800-645-7700 for assistance.
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