Questionable calls

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Call me (call me) on the line.
Call me, call me any, anytime.

We were big Blondie fans, but if the lyrics of “Call Me” are any indication, they’re not the best source of information about complying with the Do Not Call and robocall provisions of the Telemarketing Sales Rule. So we’re turning to FTC attorney Bikram Bandy to get answers to questions that businesses are asking.

My company has a great new product and we want to do a robocall campaign to let consumers know about it. Of course, we want to comply with the law, so we’re downloading the Do Not Call Registry to make sure our robocalls don’t go to those numbers. No problems, right?

BIKRAM:  Wrong. If you’re trying to sell something, you can’t place robocalls to any phone number – even numbers that aren’t on the Do Not Call Registry. The only exception is if the consumer has given signed written permission to receive robocalls on behalf of your company (not your affiliates, marketing partners, etc. – your company). The written permission must include the consumer’s phone number and has to clearly and conspicuously explain that he or she gives your company permission to make robocalls. The bottom line: If you don’t have valid written permission, you can’t send robocalls. Period.

I heard calls to businesses are exempt from Do Not Call. If I place sales calls to a business phone number, is that OK under the FTC’s rules?

BIKRAM:  Not necessarily. It depends on what you’re selling. In most cases, calls between a telemarketer and a business are exempt from the FTC’s Do Not Call and Robocall Rules if the caller is trying to sell a product or service to the business. But there are two important exceptions to keep in mind. First, if the call is trying to make a sale to an employee at work – in other words, calls to business lines that solicit individual employees to buy stuff for their own use – those aren’t true business-to-business solicitations and therefore must comply with the Do Not Call and Robocall Rules. Second, B2B calls trying to make a retail sale of “nondurable office or cleaning supplies” must comply with the Robocall Rules. What does that cover? Things like paper, pencils, solvents, toner and ink –  in short, anything that must be replaced once it’s depleted.

A company selling leads has offered me a fantastic list of “opt-in” or “permission-based" leads they say will significantly boost my sales. The lead provider says these are phone numbers of consumers who have given online consent to receive telemarketing calls. Since these consumers have given permission or “opted in” to get phone solicitations, does that mean we don’t have to worry about Do Not Call compliance?

BIKRAM:  Actually, you do have to concern yourself with Do Not Call compliance. You must scrub the leads against the Registry unless you’re calling consumers who have agreed in writing to get calls specifically from you. Since the leads you’ve been offered don’t specifically give your company permission to call, you can’t call those numbers without first scrubbing against the Do Not Call Registry. General permission is insufficient. What’s more, the consumer’s written permission must include the phone number that may be called, it must be signed by the consumer (an electronic signature is OK), and it must clearly and conspicuously explain that the consumer gives your company permission to call. That means no tricks, no traps – and no fine print.

I plan to send a robocall to all customers who have bought products from my company in the last 18 months to let them know about an upcoming sale. Since I’m calling only recent customers, I don’t have anything to worry about.  Right?

BIKRAM:  Wrong. Although there is an established business relationship exemption that applies to live telemarketing calls, there is no such exemption for robocalls. Therefore, a company can’t make robocalls, even to consumers with whom it’s recently done business, unless those consumers have given valid written consent to get robocalls from the company.

I’m thinking about partnering with a company that does political survey calls. The plan is to add my company’s sales offer at the end of the survey call as a “thank you” to participants who took the time to complete the survey. Since the purpose of the call is to conduct a political survey and political survey calls are exempt from the Do Not Call and Robocall Rules, are those calls OK?

BIKRAM:  No. Although political survey calls are exempt from the Do Not Call and Robocall Rules, adding a sales component to the call eliminates the exemption. A political or survey call that also pitches goods and services must comply with the Do Not Call and Robocall Rules. A recent FTC-State AG settlement with Caribbean Cruise Line and others illustrates that point.

Bikram’s answers remind us of another Blondie song. Whether it’s Telemarketing Sale Rule enforcement, business guidance, consumer education, or the latest Robocall Challenge, Humanity Strikes Back, “one way or another” the FTC will continue the fight against Do Not Call violations.

 

Comments

Great post. Thanks Lesley and Bikram.

Could you provide a code section, regulation and/or case regarding the discussion about calls to businesses being exempt, etc.? My business gets unwanted bogus calls frequently and we have never and never will give permission to anyone making such calls.

Thanks

See 16 CFR §310.6 Exemptions.
(b) The following acts or practices are exempt from this Rule:
(7) Telephone calls between a telemarketer and any business, except calls to induce the retail sale of nondurable office or cleaning supplies; provided, however, that §310.4(b)(1)(iii)(B) and §310.5 of this Rule shall not apply to sellers or telemarketers of nondurable office or cleaning supplies.

Regarding the second question, calls to business, you might want to note that calls to businesses using an autodialer or a prerecorded voice that reach a wireless number- business or personal - could subject a company to liability from the FCC or private lawsuits under the TCPA.

There's also the issue of a "mixed use" number where a number appears on a list of business numbers, for instance, but is a home based business. This continues to be an unsettled issue and has been litigated.

Robocalls happen to me all the time and I never give anyone permission. As you know, the number on caller ID doesn't help identify the caller and a report to the FTC is highly unlikely to result in anything happening. What if, after numerous daily calls from companies I'm unable to identify, I file a police report and request that a trap and trace be put on the phone by the phone company. The phone company had refused such a request several years ago even with middle-of-the-night calls, and I felt hopeless, like it's a perfect crime. But now I'm at the point where I may be willing to take it to court to require the phone company to assist in catching and preventing these calls by putting a trap and trace on my phone. What do you think? BTW, the phone company should be REQUIRED to do this and should tell customers they'll do this if these calls occur frequently enough. Details should be on every phone bill.

First, the police generally have no jurisdictional authority to regulate telemarketing calls so that's probably not going to get the results you seek. Second, the phone company cannot put a trace on the calls and disclose to you where that call came from without a court order to do so. That's the law, both federal and state, and phone companies have to abide by those laws. The best thing to do is register your home phone number on that National Do-Not-Call list. It can take up to 30 days for that to take effect with telemarketers. And by the way, if your home phone is ALSO a business phone you promote, you can still get business-to-business telemarketing calls on that phone. So don't use promote your home phone number as a business number. Having done that, if the calls continue, file a complaint with the FTC and FCC. All that said, you can contact an attorney who specializes in DNC violation cases. It often costs nothing for that first call and consultation and they can advise you from there. Beyond all that, difficulty in identifying bogus caller ids -- or even bogus calls -- is enormous. Anyone on this planet can call practically anyone else on this planet today, and push a fake caller id in the process. The problem is about rules. It's about technology. What technology exists to tell whether or not a phone number is real? There is no central global database of real-time phone numbers. Millions of phone numbers change hands daily in the U.S. alone. Not even the FCC knows who has what phone at any given moment. Ultimately this problem will take decades to smooth out, and by then we'll have newer technology with its own issues.

Your do not call registry does not stop us pharmacy for harrassinge all day long. They call every day from different numbers. Want to sell me viagra. Hello. I am a woman and not married. It is your responsibility to protect us citizens from these indian people. Do your job

I receive many, many, many unwanted telemarketers calling my business cellphone daily. This is a distraction from our business as well as a complete nuisance. I continually ask them not to call or block their calls. Some days I spend more time dealing with this issue than trying to make a living. I have a list of hundreds of these pests phone numbers. Something needs to be done. Is there any legal compensation for this? Are there laws to protect businesses from this harassment? I added this line to the do not call list several times over the years however nothing seems to stop them. Please advise.

If the calls are being made to a business phone you are out of luck unfortunately.

Let's say you have a perpetual business relationship with a company like when you pay a monthly fee to an alarm company, and they call you to advertise further services. IF you tell them during one of these calls to put you on their Do Not Call list are they then liable for calls made after that point? Would this also work against so called "charities" that call non-stop?

thx

Just received a call from Chris. He said that I called him. I said no my name is Bill. Not sure what their gemmick is. But may be worth checking in on. The number was 618-722-4301.

If say you go to a car dealer to have an oil change, does that create a "business relationship" such that they can now call your landline to try and sell you a car for the next 18 months?

Are there repercussions on calling business to business if the phone number duals as a personal and business number? Also, if the person requested to be taken off the call list, and we obliged and never called back, does that person still have the right to sue?

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