Disclaimer: This blog is for general information purposes only and does not constitute legal advice and does not create or intend to create an attorney-client relationship. This blog post should never be used to replace the advice of your personal attorney.
The United States federal government needed a way to combat unwanted sales calls as so came the invention of the National Do Not Call list or DNC for short. The list originated in 2003 when the FTC or Federal Trade Commission created it to help companies remain compliant with the Do Not Call Implementation Act of 2003, which in turn, was put in place to ensure compliance with the TCPA or Telephone Consumer Protection Act of 1991. The FTC opened up the National Do Not Call Registry to consumers looking to sign up in June of 2003, with the enforcement of the list starting in October of the same year.
Life Before The National Do Not Call List
The Do Not Call list was implemented in 2003, though the TCPA came in 1991. With that being the case, what was stopping unwanted telemarketing calls? On a national scale, the FCC or Federal Communications Commission initially opted for a less hands-on approach. Companies had to create, maintain, and monitor their own do not call list, though internal policing is not always reliable. Some states took it upon themselves to provide additional consumer protection. For example, Missouri required its attorney general to put a list of residential subscribers together who did not wish to receive sales calls. Indiana followed suit, though it featured some severe fines for companies that breached the list, with a maximum fine of $25,000. Come to the end of 2002, and 27 states had their own Do Not Call list. It was these own state-monitored lists that led to the creation of the National Do Not Call list.
Life After The National Do Not Call List
With the implementation of the National Do Not Call list, most of those 27 states chose to get rid of their self maintained records and the expenses that came with it. However, 12 states continue to use their own Do Not Call List. Despite the good intentions of the Do Not Call list, and its overall general acceptance, seven states do not follow the National Do Not Call list, nor keep their own list. Those states are:
- Rhode Island
- South Carolina
- West Virginia
- District of Columbia
How Does The National Do Not Call List Work?
For the unwanted sales calls to stop, the consumer needs first to register their phone numbers. The list allows both landline phone numbers and cell phone numbers, and it is possible to register as many numbers as the consumer wishes. Registration to the list get done in one of two ways:
- A consumer can call the FTC on toll-free number 1-888-382-1222 or 1-866-290-4236 for a TTY number. The number that makes the call will become registered on the list, meaning it is only possible to do one telephone number at a time.
- Alternatively, it is possible to register up to three numbers at once at www.donotcall.gov. Once the registration goes through, the consumer will receive an email that contains a link that they will need to click on within 72 hours to confirm the registration.
The FTC advises consumers that it can take up to 31 days for sales calls to stop, from the date of successful registration. The 31 day period exists as companies, per federal law, have to check the list every 31 days. Once registered, the phone number will stay on the DNC list until either the consumer requests its removal or the FTC removes it because it’s disconnected.
The National Do Not Call List For Businesses
The above details what a consumer needs to do to get their phone numbers on the Do Not Call list. For a business, it is not as simple as checking an online hosted listed to avoid the FTC, FCC, or other federal organizations coming after them. A company that performs telemarketing must first register before accessing the list, with registration done at telemarketing.donotcall.gov. Upon accessing the site, a business will need to set up a profile before it can download the relevant Do Not Call lists. The Do Not Call lists have been organized per area code with a company able to download lists for five areas for free. It is possible to download more lists or even the national registry, though an additional charge does apply. With the lists downloaded, a business can update their lists, which must get updated every 31 days, though the DNC can only get downloaded once every 24 hours. Companies operating outside of the US can access the list, to ensure their calls to the nation are legal.
Businesses should only register to download the list, and not register their numbers to the Do Not Call list, to stop sales calls. However, some smaller business owners, who use their mobile phones for their personal phone number and business lines, do register their number. Business to business calls are allowed, but If a business calls one of these numbers that are on the Do Not Call list, they can still face fines, even though the number should not be there. The FTC advises that no matter who a company is calling, they should always refer to the list before hitting dial.
Additional Telemarketing Rules
The Do Not Call list is not the only set of rules that a business must follow to remain in compliance with telemarketing rules. Some additional outlines include:
- A company must not call before 8 am and after 9 pm.
- The company making the call must instantly transmit their telephone number, and name, to the recipient’s caller id service.
- The nature of the call must be clear, and the information that is part of the sales pitch should be non-misleading, abusive, or deceptive in any way.
- If the telemarketer is a third-party, they must inform the consumer on whose behalf they are calling.
- A call made via a robocall should get transferred to a live agent within 2 seconds of the recipient answering. Robocalls are further detailed below.
What Does The Do Not Call List Not Cover?
The idea of the Do Not Call list is to stop unwanted telemarketer calls. However, despite what a consumer might expect, they can and will still receive sales calls. The DNC does cut down on sales calls, though there are exceptions.
- If a consumer purchases a service or product from a company, thus initiating a business relationship, the company can make sales calls to that consumer for up to 18 months, whether their number is on the list or not.
- If a consumer sends an application or similar request to a company, that company then has three months to make sales calls to the consumer.
The above two examples are legal ways companies can perform sales calls. Unfortunately, a consumer should keep in mind that a company that is willing to break the law, won’t pay much attention to the Do Not Call list. Scammers may even register to the list to obtain numbers to call using spoofing, which is the act of faking a number to show a specific area code, while instead, calling from another country altogether. The act of spoofing leads consumers to believe they are dealing with a local company. The FTC advises that if a consumer receives a scam call, they should report the number by filing a consumer complaint.
Additional Exemptions To The Do Not Call List
The idea of the Do Not Call list, despite the vague name, is to stop sales calls. That means that a consumer should still expect some calls that may be considered unwanted. The types of calls that can come through to a number, whether on the Do Not Call List or not, include the following:
- Calls from political organizations.
- Calls from nonprofit organizations and charitable organizations.
- Calls from debt collectors.
- Calls that are providing information that is not part of a sales pitch.
- Calls that are for conducting surveys.
How Does The National Do Not Call List Apply To Other Forms Of Communication?
Marketing is critical to a business’s success, with a lot of time and money going into its marketing campaign. With that being the case, it would be not very smart to rely on a single avenue, such as making sales calls. There are other forms of communication that companies can use to chase a sale, and the National Do Not Call list does apply to them in some way.
Robocalls or a phone call with a recorded message made using an automatic dialing system, are illegal when used to make a sale, no matter whether a consumer is on the Do Not Call list or not. A company needs a consumer’s express written permission to use auto-dialers to offer a sales pitch, and if they don’t have that permission, the call is illegal. Again, scammers looking to trick consumers or steal information aren’t too concerned with staying within the lines of the law. Consumers should always be wary of robocalls from a number they don’t recognize, and should most certainly not follow any instructions of the call, such as press 1 to transfer to a live agent. Some robocalls are allowed, provided they are purely informational, such as information on the COVID-19 pandemic.
The DNC doesn’t cover SMS messages, though the TCPA, which the DNC helps businesses comply with, does. Similar to Robocalls, for a business to send marketing SMS messages, they must have a consumer’s written permission. A prior business relationship, where a consumer has provided their number, is not the same as written permission. Again, there are some exceptions to the rule, such as SMS messages for delivery notifications or appointment reminders.
Email marketing has its own dedicated Act, called the CAN-SPAM Act, which is a federal law setting the rules for the sending of marketing emails. The Act outlines the rules a business must comply with to avoid fines. Some rules that share some similarities of the Do Not Call list are as follows:
- The heading information of the email must be correct, and clearly identify the business sending the email.
- The subject of the email must not be misleading and clearly reflect the contents of the email.
- The email must make it clear that the contents are for the purpose of marketing.
- Recipients of the email must have a clear opt-out option with easy to follow instructions.
- The business must acknowledge the opt-out request within ten days of a consumer making that choice. The business should then keep a clear list of consumers who have requested not to receive marketing emails.
One difference between the rules of the DNC and the CAN-SPAM Act is that a company still needs permission, even if they are sending marketing emails to other businesses.
Does The National Do Not Call List Work?
For a time after 2003, unwanted sales calls became less and less. Companies understood that they should not call numbers on the list, and if they did, they would face a fine. Unfortunately, despite the initial success, the Do Not Call list became less effective. It does work though not as well as it once did. As stated multiple times, it works for a business that wants to follow the law, though, for scammers, it is not an effective barrier. As telephone calls over the internet via VOIP or Voice Over Internet Protocol became popular, for how affordable they are, there was nothing stopping call centers abroad from making hundreds, if not thousands of calls. The FTC does recognize the problem, though struggles to combat it as it can be challenging to understand who is making the call, especially with spoofing technology. The best way a consumer can stop illegal calls is to contact their telephone service provider and subscribe to their call blocking list, though there is still no guarantee the calls will stop. In short, the National Do Not Call list works, and businesses will do well to keep to the rules, though it is inefficient as a sole defense against unwanted calls.
Additional Reading: California Consumer Privacy Act