Telemarketing – or placing calls in which the caller markets, encourages, or offers to sell or lease products or services to consumers - is regulated by two federal agencies - both the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC).  And you are a “telemarketer” if you place phone calls to market your products or services to people on the receiving end of the call.  Purely informational calls and calls for non-commercial purposes are not affected, as long as the business doesn’t also use the call to promote the sale of any goods, property, or services. The Federal Trade Commission’s Telemarketing Sales Rule (TSR) established the National Do Not Call Registry effective October 1, 2003, in which consumers may register a phone number for which they wish to not receive telemarketing calls, and telemarketers must comply with it or face fines.  Between 2012 and today, the FCC has continued to revised its Telephone Consumer Protection Act (TCPA) of 1991 to further limit the activities of Telemarketers using auto-dialers to contact consumers on either landline or mobile phones, with per-call penalties.

So, as a business that might make marketing or sales calls to my customers or leads, what do I need to know? 

Do-Not-Call Registry. The law requires telemarketers to search the Do Not Call Registry every 31 days and avoid calling any phone number on the registry, with few exceptions. A telemarketer who disregards the National Do Not Call Registry could be fined up to $40,000 for each call. However, provided you are not using an auto-dialer or pre-recorded voice message (see more information on that below), if you have an established business relationship with a consumer, you can call them for up to 18 months after their last purchase, payment or delivery — even if their number is on the National Do Not Call Registry. If a person makes an inquiry or submits an application to a company, the company can call them for three months afterward.  And, even if their number is on the Do Not Call Registry, you can call a consumer to telemarket to them IF they have given you written permission to call them for this purpose beforehand.  On the other hand, even if you have an established business relationship, a consumer can ask a company not to call them anymore, and the company must honor that request, even if the person previously gave their written permission.

Conduct Standards for Telemarketers.  The TSR also prohibits deceptive and abusive telemarketing acts and practices. It establishes standards of conduct for telemarketing calls:

• Telemarketers can't call people before 8 a.m. or after 9 p.m. local time
• Telemarketers must transmit their telephone number and, if possible, their name, to the consumer’s caller ID service.
• To give the consumer time to answer the phone, the telemarketer may not hang up on an unanswered call before 15 seconds or four rings.
• Telemarketers must promptly tell the person who is called the identity of the seller and that the call is a sales call.
• Telemarketers must disclose all material information about the goods or services they are offering and the terms of the sale. They are prohibited from lying about any terms of their offer.
• If they do use an auto-dialer to place the call, Telemarketers are required to connect their call to a sales representative within two seconds of the consumer’s greeting.

Auto-dialers and Pre-recorded messages.  Most of the TCPA’s 2013 restrictions affect those businesses that place phone calls to consumers using an “auto-dialer” - an automatic telephone dialing system that can produce, store and call telephone numbers using a random or sequential number generator - or that deliver pre-recorded voice messages to their customers or prospects over the phone.  For these types of auto-dialed or pre-recorded message calls, the TCPA requires that you get prior, express, written consent from the recipient before you place those calls.  And, the consent must be given with certain language that shows it was unambiguous and that the consumer was not required to consent to receive future marketing calls in order to purchase something from your business.

Calls to Mobile Phones.  Under the TCPA, there are special rules that apply to calling a mobile phone number:   All marketing calls to a mobile phone require prior, express consent and using an auto-dialer to call a mobile phone is not permitted without prior, express, written consent.  There is no exception for telemarketing calls to a mobile phone even if you have an existing business relationship with the consumer you are calling.  This permission must be very specific – and contain specific language.  And, the TCPA applies to both voice and short message service (SMS) text messages to a mobile phone, if they are transmitted for marketing purposes.  Consent is not required for purely informational calls – to let them know something about their account or order – as long as you don’t also market something else to them or use an auto-dialer to place the call.  Also be aware that if you are making a sales call to a mobile phone, it might be in a different time zone than you expected, given the phone number. 

Telephone Marketing Best Practices:

• Check the Do-Not-Call Registry before placing marketing calls to Leads or existing Customers;
• If a Customer’s number is on the Do-Not-Call list, check the last date they did business with you;
• Maintain your own “opt-out” list for when someone asks your business, in specific, not to call them again for marketing;
• Don’t disable caller ID when making marketing calls from your business;
• Identify yourself and that this is a sales call right away;
• Place telemarketing calls manually;
• Don’t send pre-recorded voice messages to landlines or mobile phones;
• If you do want to use an auto-dialer or pre-recorded messages, or send texts, get written permission first, and keep a good record of it for four years;

For more information on guidance for telephone marketers, see: https://www.ftc.gov/tips-advice/business-center/guidance/qa-telemarketers-sellers-about-dnc-provisions-tsr and https://www.fcc.gov/general/telemarketing-and-robocalls

This “Best Practices” content is provided for convenience and information only and is not intended as legal advice.  We do not claim that this information represents an accurate summary of the laws in this area or that it will be updated for any changes.  Please consult an attorney for questions about your compliance with applicable laws.