The State of Georgia recently announced the implementation of its “do-not-call” list — heralded as an aggressive step toward ending telemarketing fraud in the state. Georgia joins three other states which have apparently determined that the Telephone Consumer Protection Act of 1991 (TCPA) and the Federal Trade Commission's Telemarketing Sales Rule (TSR) do not provide sufficient protection to their citizens from telephone calls for sales purposes. These state laws, coupled with the Federal rules, create hazards for any calling campaign.
Congress passed the TCPA to protect the privacy interests of residential telephone subscribers from unwanted telephone solicitations. The law and the regulations promulgated by the Federal Communications Commission implementing it, prohibit solicitations to people who have indicated they do not wish to receive further solicitations and require companies to maintain do-not-call lists for 10 years following the initial request. The regulations require that each entity making calls maintain a written do-not-call policy available upon demand. The TSR has similar “do-not-call” requirements.
The TCPA may be enforced by state attorneys general, the FCC or by individuals who have been called more than once in a 12-month period. The TSR may be enforced by the FTC, as well. In practice, most do-not-call actions are brought in small claims court by private individuals for the statutory penalty of $500.
Compliance, then, is achieved by adopting a written do-not-call policy, and either contractually requiring your service bureaus to adopt it or their own compliant policy, or training your sales representatives in its provisions.
In short, train your representatives to recognize a do-not-call request (any form is acceptable), train them to record the request instead of merely hanging up and train them to forward requests for the written do-not-call policy to management.
The law provides a “good faith” defense in that if you do this, a call placed in error, despite these efforts, does not create liability and a consumer's action based upon that call will be dismissed.
Florida, Georgia, Oregon and Kentucky, however, require more for calls placed to their citizens. Each state compiles its own do-not-call list which it makes available, for a fee, to businesses calling its residents. These lists are usually published on a quarterly basis. Each of these states will provide their list on a disk, for an additional fee, and Georgia is the first to offer the list online.
These states, and states which adopt similar laws in the future, prevent your business from relying on compliance with Federal law and your in-house do-not-call file or even the DMA's Telephone Preference Service, which does not include these states' lists. Under federal law you can call a citizen of these states once, and if the person makes a do-not-call request you should not call him or her again. The new state laws, however, prohibit calling these citizens even once, and do not include “good faith” defense found in the TCPA.
Your business needs to subscribe to these lists and ensure that all the names found on them are suppressed by your service bureaus and in-house call centers. Speaking from experience, regulatory problems will quickly mount if calls are placed to these people due to failure to subscribe or a lapsed subscription.
Given the nature of state legislatures, more and more states will adopt similar requirements in the future, increasing your regulatory burden — but at what gain for the citizenry? It's hard to see how these lists prevent fraud, and federal law already provides for do-not-call policies and enforcement of the law by the states and private persons. It seems that these laws simply add to the expense and burden of telemarketing without substantial effects on fraud or any other ill. Annual subscriptions to the four states' lists now run more than $1,500. It is not hard to imagine a situation where most states require you to subscribe to their lists, the federal government requires an in-house list, and your trade association requires you to subscribe to another.
Depending on your industry, more laws could apply or be passed in the
future. “Freeze” statutes in the area of solicitations for change of telecommunications provider are one example of “do-not-call”-type restrictions.
There is some hope, however. Until recently, Illinois law provided that real estate brokers could not contact people to offer to sell their property if their names were on a list to that effect. The law was passed to prevent “block busting,” i.e. playing on racial fears to generate real estate sales.
This list statute was struck down this year as unconstitutional when
a court held that there was no evidence that this evil existed, nor that the list provision would prevent that evil if it did exist.
This case, affirmed at the Federal appellate level, shows that at some
point the burden upon business by these lists is improper from a constitutional standpoint. States can not simply say that these laws prevent fraud or protect residential privacy without proving that they work and accomplish the goal in a nondiscriminatory manner.
Florida:
Department of Agriculture
ATTN: Telemarketing
P.O. Box 6700
Tallahassee, FL 32314-6700
Contact: Melissa Meffert, Consumer Services Consultant
850-922-2745
Georgia:
Georgia Public Service Commission
P.O. Box 105559
Atlanta, GA 30348
Phone: 1-877-GANOCALL
Kentucky:
Office of the Attorney General
Consumer Protection Division
1024 Capital Center Drive
Frankfort, KY 40602-2000
Contact: Susan Stinnett
502-696-5389
Oregon:
US West DEX
198 Inverness Dr. West
Suite 500
Englewood, CO 80112
800-999-4630
Contact: Glory Arndt
(Ext. 2617)
FAX: 303-784-1819
