Selling or Using a Do Not Call List for Purposes Other than Compliance
The Written Permission to Call Exemption
The TSR lets sellers and telemarketers call any consumer they can demonstrate has expressly agreed, in writing, to receive calls by or on behalf of the seller, even if the consumer’s number is in the National Do Not Call Registry. The consumer’s express agreement must be in writing and must include the number to which calls may be made and the consumer’s signature. The signature may be a valid electronic signature, if the agreement is reached online.
If a seller seeks a consumer’s permission to call, the request must be clear and conspicuous, and the consumer’s assent must be affirmative. If the request is made in writing, it cannot be hidden; printed in small, pale, or non-contrasting type; hidden on the back or bottom of the document; or buried in unrelated information where a person would not expect to find such a request. A consumer must provide consent affirmatively, such as by checking a box. For example, a consumer responding to an email request for permission to call would not be deemed to have provided such permission if the “Please call me” button was pre-checked as a default.
In the FTC’s enforcement experience, sweepstakes entry forms often have been used in a deceptive manner to obtain “authorization” from a consumer to incur a charge or some other detriment. Authorization or permission obtained through subterfuge is ineffective. The FTC scrutinizes any use of such sweepstakes entry forms as a way to get a consumer’s permission to place telemarketing calls to her number.
Other Provisions Relating to Do Not Call
It’s a violation of the TSR for anyone to sell, rent, lease, buy, or use an entity-specific Do Not Call list or the National Registry for any purpose other than complying with the Rule’s Do Not Call provisions or preventing calls to numbers on such lists. This provision applies to list brokers, third-party services, and others, in addition to sellers and telemarketers. It is intended to ensure that consumers’ phone numbers on Do Not Call lists and the National Registry are not misused. It is a violation of this provision for a seller to market its own entity-specific Do Not Call list to another entity for use as a “do call” list.
Sellers and telemarketers (on behalf of sellers) must purchase access to the relevant Do Not Call data from the National Registry database. The TSR prohibits participating in any arrangement to share the cost of accessing the National Registry database. A telemarketer may not divide the costs to access the National Registry database among various client sellers; access for each client seller must be purchased separately. Similarly, a telemarketer may not access the National Registry to obtain Do Not Call data and transfer the data to or share it with another telemarketer.
Denying or Interfering with Someone’s Do Not Call Rights
It’s a TSR violation to deny or interfere with someone’s right to be placed on the National Do Not Call Registry or on any entity-specific Do Not Call list. This provision prohibits a telemarketer from refusing to accept a consumer’s entity-specific Do Not Call request, including harassing any person who makes such a request, hanging up on that person, failing to honor the request, requiring the person to listen to a sales pitch before accepting the request, assessing a charge or fee for honoring the request, requiring the person to call a different number to submit the request, or requiring the person to identify the seller making the call or on whose behalf the call is made. In addition, if a seller or telemarketer fails to diligently capture information about a consumer’s Do Not Call request and add it to the appropriate entity-specific Do Not Call list, it will lose the benefit of the TSR’s safe harbor for inadvertent violations. It would also violate this part of the TSR for any person to purport to accept telephone numbers or other information for entry into the National Do Not Call Registry. No data from third parties is accepted into the National Do Not Call Registry.