The Telemarketing Sales Rule (“TSR”), as amended, prohibits calls to consumers who have placed their phone numbers on the National Do Not Call Registry. Since January 1, 2005, telemarketers, sellers and service providers, as those terms are defined by the TSR, are required to search the Registry at least once every thirty one (31) days and block the phone numbers included in the Registry. The Federal Trade Commission (“FTC”) recently amended the TSR to increase the fees charged for accessing the phone numbers on the Registry.
What is the National Do Not Call Registry?
The National Do Not Call Registry is an extensive list of telephone numbers managed by the FTC. The list represents the consumers who have affirmatively placed their telephone numbers on the Registry to limit the number of telemarketing calls they receive. It is enforced by the FTC, the Federal Communications Commission and state law enforcement officials.
What is Required to Access and Download the Do Not Call Registry?
As detailed below, certain persons and businesses involved in telemarketing must register on a yearly basis to access and download the Registry. In connection with such registration, certain identifying information must be provided and a profile must be created. To create a profile, an authorized representative of the company must, among other things, certify that the company will comply with the requirements of the Registry, including not using the phone numbers listed therein for any purpose other than to block them from future telemarketing calls.
Fees charged to access the Registry depend on the number of area codes that the company includes in its subscription. The first five area codes are free. As of October 1, 2014, the annual fee for each additional area code will cost $60.00 – up to a maximum of $16,482.00.
Who is Required to Download the Do Not Call Registry?
All service providers, telemarketers and the sellers on whose behalf they are making the calls who contact consumers in the United States and its territories to sell goods or services must access and download the Registry, as well as remove from their calling lists any numbers appearing therein. There are certain exceptions, including calls promoting political candidates and those seeking charitable contributions. Calls to consumers who have provided express written permission to receive telemarketing calls by or on behalf of the seller also are excluded.
- “Seller” – this term includes any person or business that, in connection with telemarketing, provides, offers to provide or arranges to provide, goods or services in exchange for consideration (i.e., money). Every Seller must subscribe and agree to the certification requirements to receive a Subscription Account Number (“SAN”).
- “Telemarketer” – this term includes any person or business that, in connection with telemarketing, initiates or receives telephone calls to or from a consumer. A Telemarketer may access the Registry through a Seller’s account, but the Telemarketer must be authorized by the Seller to use the Seller’s SAN and the Telemarketer may use the data it downloads only in connection with the calls that it is making on behalf of that particular Seller.
- “Service Provider” – this term includes any person or business that provides assistance to sellers or telemarketers to engage in telemarketing, such as list brokers. A Service Provider may access the Registry through a client’s account, but the Service Provider must be authorized by the client to use the client’s SAN and the Service Provider may use the data it downloads only in connection with that particular client.
What Are the Penalties Associated With Calling Numbers on the Do Not Call Registry?
As we have previously reported, the penalties for violating the TSR can be monumental and, in some instances, bankrupting. The TSR provides for civil penalties of up to $16,000.00 per violation, along with injunctive relief to prevent future violations and requirements that perpetrators pay redress to consumers.
If you are interested in learning more about this topic or need to review your telemarketing practices, please e-mail 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 obtaining 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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