An oft-discussed topic with which our readers are familiar is the National Do Not Call (“DNC”) registry. A lesser discussed topic is the Telephone Consumer Protection Act’s (“TCPA”) regulations relating to maintenance of written DNC policies.In this piece, we discuss the: (1) information that should be included in a DNC policy; (2) importance of maintaining DNC-related policies and procedures; and (3) potential implications that may arise from failing to implement a DNC policy.
Think You’re Sunk? Having a DNC Policy May Offer a Life Raft
Before delivering telemarketing calls or commercial text messages to consumers, companies (including all employeesengaged in telemarketing) should take several steps to insulate themselves from potential litigation. Companies should: (1) establish and implement a DNC policy, in writing, for compliance with the National DNC registry; (2) train theirpersonnel in the procedures delineated in the DNC policy; and (3) maintain records documenting the process established to comply with the DNC policy.
Although implementing a DNC policy technically is not required under the TCPA, as it is codified at 47 U.S.C. § 227, telemarketers must be cognizant of a separate TCPA regulation issued by the Federal Communications Commission (“FCC”) pursuant to its apparent authority to enact rules and regulations. This regulation requirescompanies that deliver telemarketing calls/text messages to maintain an internal DNC policy. Similar to the TCPA’s affirmative defense for national DNC calls, this regulation absolves companies of DNC liability if they demonstrate that the DNC violation is the result of an error and they, as part of their ordinary business practices: (1) have a written internal DNC policy, available upon demand, for maintaining a DNClist of telephone numbers associated with consumers who have made DNC requests; (2) inform and train personnel who are engaged in telemarketing about the internal DNC policy; and (3) record and comply with DNC requests within a reasonable time period (not to exceed 10 business days). Pursuant to the regulation, telemarketers must honor DNC requests for 5 years from the date the subject requests weremade. Notably, the TCPA provides an affirmative defense for DNC violations if telemarketers can demonstrate that an alleged violation is the result of error and that as part of theirroutine business practices, they follow the previously described standards outlined in their DNC policy.
If You Don’t Have a DNC Policy, Contact KMT Immediately!
As we’ve discussed numerous times, TCPA violations can lead to significant liability – the statute allows for the recovery of statutory damages in the amount of $500 per call (excluding the first call). This statutory amount may be trebled to $1,500 per call if a court determines that TCPA violationsare willful. Failing to maintain an internal DNC policy as part of a company’s routine business practices not only may expose telemarketers to private lawsuits, but it can be used to argue that telemarketers acted willfully. More often than not, TCPA DNC claims are brought as class actions, which could lead to significant exposure for telemarketers who are found liable.
The attorneys at Klein Moynihan Turco (“KMT”) routinely: (1) craft DNC policies for clients; and (2) advise clients on state and federal telemarketing law compliance matters. In addition, KMT’s attorneys have successfully defended a vast number of companies in national and internal DNC-related lawsuits. If you have been sued for violating the TCPA’s DNC policy regulation, the TCPA generally, or need assistance with updating your telemarketing practices and procedures, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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