Q&A for Telemarketers
and Sellers About the Do Not Call Provisions
of the FTC’s Telemarketing Sales Rule
Contents
Background
1. What
is the National Do Not Call Registry?
The National Do Not
Call Registry is a list of phone numbers
from consumers who have indicated their
preference to limit the telemarketing
calls they receive. The registry is managed
by the Federal Trade Commission (FTC),
the nation’s consumer protection
agency. It is enforced by the FTC, the
Federal Communications Commission (FCC),
and state officials.
2. Why was the
National Do Not Call Registry created?
The registry was created
in 2003 to offer consumers a choice regarding
telemarketing calls. The FTC’s decision
to create the National Do Not Call Registry
was the culmination of a comprehensive,
three-year review of the Telemarketing
Sales Rule, as well as the FTC’s
extensive experience enforcing the Rule
in the previous seven years. The FTC also
held numerous workshops, meetings and
briefings to solicit feedback from interested
parties, and considered more than 64,000
public comments, most of which favored
creating the registry. You can review
the entire record of the Rule review.
Coverage
Under the TSR
3. What calls
are covered?
The do not call provisions
of the TSR cover any plan, program or
campaign to sell goods or services through
interstate phone calls. This includes
calls by telemarketers who solicit consumers,
often on behalf of third party sellers.
It also includes sellers who are paid
to provide, offer to provide, or arrange
to provide goods or services to consumers.
The National Do Not
Call Registry covers intrastate telemarketing
calls under the FCC’s rules. You
can find information on the FCC’s
regulations at www.fcc.gov/cgb/donotcall/.
4. What types
of calls are not covered by the National
Do Not Call Registry?
The do not call provisions
do not cover calls from political organizations,
charities, telephone surveyors, or companies
with which a consumer has an existing
business relationship.
5. Do the do not
call provisions of the TSR cover calls soliciting
money for charities?
Charities that are calling on their own behalf to solicit charitable contributions are not covered
by the requirements of the national registry.
However, if a third-party telemarketer
is calling on behalf of a charity, a consumer
may ask not to receive any more calls
from or on behalf of that specific charity.
If a third-party telemarketer calls again
on behalf of that charity, the telemarketer
may be subject to a fine of up to $11,000.
6. Do the do not call provisions of the TSR cover tax exempt organizations?
Entities that have been granted tax exempt status under the Internal Revenue Code are not necessarily Exempt Organizations for purposes of the National Do Not Call Registry. See, e.g., FTC v. National Consumer Council, Inc., and FTC v. Debt Management Foundation Services, Inc. There, the FTC successfully challenged the status of a purported nonprofit organization whose role in fact was simply to generate leads for other firms which then charged consumers thousands of dollars in fees for their services.
For more information see “10. What is an Exempt Organization?” below.
7. Do the do not
call provisions of the TSR cover political
solicitations?
No. Political solicitations
are not covered by the TSR at all, since
they are not included in its definition
of “telemarketing.”
8. If a call includes
a telephone survey and a sales pitch, is
it covered?
Yes. Callers purporting
to take a survey, but also offering to
sell goods or services, must comply with
the do not call provisions. But if the
call is for the sole purpose of conducting
a survey, it is exempt.
9. How does the
established business relationship provision
work for a consumer whose number is on the
registry?
A company with which
a consumer has an established business
relationship may call for up to 18 months
after the consumer’s last purchase
or last delivery, or last payment, unless
the consumer asks the company not to call
again. In that case, the company must
honor the request not to call. If the
company calls again, it may be subject
to a fine of up to $11,000.
If a consumer makes an inquiry or submits
an application to a company, the company
can call for three months. Once again,
if the consumer makes a specific request
to that company not to call, the company
may not call, even if it has an established
business relationship with the consumer.
A consumer whose number
is not on the national registry can still
prohibit individual telemarketers from
calling by asking to be put on the company’s
own do not call list.
10. What is an Exempt Organization?
In general, your organization is not required to access the National Do Not Call Registry, and thus may access as an Exempt Organization, if one or more of the following is true:
- Your organization is not subject to either the FTC’s or the FCC’s jurisdiction. For example, a non-profit charitable organization may be an Exempt Organization, assuming, of course, that it is truly a non-profit. Entities that have been granted tax exempt status under the Internal Revenue Code are not necessarily Exempt Organizations for purposes of the National Do Not Call Registry. See, e.g., FTC v. National Consumer Council, Inc., and FTC v. Debt Management Foundation Services, Inc. There, the FTC successfully challenged the status of a purported nonprofit organization whose role in fact was simply to generate leads for other firms which then charged consumers thousands of dollars in fees for their services.
- Your organization does not engage in any "telemarketing" or “telephone solicitation” activities, as defined by the FTC and FCC, respectively. For example, survey calls and political polling calls are not covered by the definition of “telemarketing” or “telephone solicitations.” An organization that places ONLY these types of calls may be an Exempt Organization.
- Your organization qualifies for one or more of the specific exemptions contained in the FTC's and FCC's rules, such as:
a. you only call to solicit charitable contributions; or
b. you only call consumers with whom you have an established business relationship; or
c. you only call consumers from whom you have received written permission to call; or
d. you only make business-to-business calls.
If you are a for-profit telemarketer, you are NOT an Exempt Organization, even if you call consumers on behalf of an Exempt Organization, such as a non-profit. See, e.g., National Federation of The Blind v. FTC, 420 F.3d 331 (4th Cir. 2005).
Additionally, you must be accessing the National Registry solely to prevent telephone calls to telephone numbers on the National Registry.
Whether your organization is exempt is a decision that requires an understanding of the FTC’s and FCC’s requirements, as well as your specific business practices. Therefore, whether you should subscribe as an Exempt Organization is a decision you must make. In making this decision, you may wish to consult with an attorney.
If you are not an Exempt Organization and you have nevertheless subscribed to the Registry as an Exempt Organization, you may be subject to civil and/or criminal penalties. If you subscribed as an Exempt Organization by mistake, and wish to withdraw your subscription, please contact the HELPDESK.
You may wish to consider the following materials when deciding whether to subscribe to the National Do Not Call Registry as an Exempt Organization:
- The FTC Act at 15 U.S.C. §§ 41-58 and related case law.
- The Communications Act at 47 U.S.C. §§ 151-757 and related case law.
- The Telephone Consumer Protection Act (TCPA) at 47 USC §227 and related case law.
- The Telemarketing and Consumer Fraud Abuse Prevention Act at 15 U.S.C. §§ 6101-6108 and related case law.
- The Do Not Call Implementation Act at P.L.108-10, 117 Stat. 557, and related case law.
- The Telemarketing Sales Rule at 16 C.F.R. § 310 and related Agency statements and case law.
- The FCC’s rules implementing the TCPA at 47 C.F.R. § 64.1200 and related Agency statements and case law.
NOTE: You may also want to review the requirements in those states in which you plan to do business and/or to which you plan to place calls. Many states prohibit calls to telephone numbers listed on the National Do Not Call Registry.
Accessing
the Registry
11. Who can access
the national registry?
Access to the national
registry is limited to sellers, telemarketers
and other service providers. Sellers are
companies that provide, offer to provide,
or arrange for others to provide goods
or services to a customer in return for
some type of payment as part of a telemarketing
transaction. Telemarketers are companies
that make telephone calls to consumers
on behalf of sellers. Service providers
are companies that offer services to sellers
engaged in telemarketing transactions,
such as providing lists of telephone numbers
to call, or removing telephone numbers
from the sellers’ lists.
Some sellers are exempt
from the FTC’s rules, but are required
to access the registry under the FCC’s
rules. As explained above, some entities (Exempt Organizations) are exempt from accessing
the national registry under both agencies’
rules (see “10. What is an Exempt Organization?”). These Exempt Organizations still may
access the registry voluntarily, and do
not have to pay a fee for that access.
They must, however, submit appropriate
certification information to gain access
to the registry.
12. Can I use
numbers on the registry for any purpose
other than preventing telemarketing calls?
No. The registry may
not be used for any purpose other than
preventing telemarketing calls to the
telephone numbers on the registry. Any
entity that accesses the national registry
will be required to certify, under penalty
of law, that it is accessing the registry
solely to comply with the TSR or to prevent
calls to numbers on the registry. Use
of the registry for purposes other than
those set forth in the certificate could
subject you to legal action.
13. How can I
access the registry?
The registry can be
accessed only through the fully automated
and secure website at www.telemarketing.donotcall.gov.
The first time you access the registry,
you must set up a profile and provide
identifying information about you and
your organization. If you are a telemarketer
or service provider accessing the registry
on behalf of your seller-clients, you
will be required to identify your seller-clients
and provide their unique Subscription
Account Numbers (SANs). The only consumer
information available from the registry
is telephone numbers. After you (or the
company telemarketing on your behalf)
have accessed the registry and downloaded
telephone numbers the first time, you’ll
have the option of downloading only changes
in the data that have occurred since the
last time you accessed the registry.
14. What information
must I provide to access the registry?
The first time you access
the system, you will be asked to create
a profile and provide certain limited
identifying information, such as your
company name and address, contact person,
and the contact person’s telephone
number and email address. If you are accessing
the registry on behalf of a seller-client,
you also will have to identify that seller-client.
15. How often
must I access the registry and remove numbers
from my calling list?
If your calls are covered by the registry, you have to synchronize your lists with an updated version of the registry at least every 31 days.
16. How often
may I download data from the national registry?
You will be able to
access data for those area codes for which
you have paid as often as you like during
your annual period. However, to protect
system integrity, you may download data
files from the national registry only
once in any 24-hour period.
17. What information
can I access from the national registry?
The only consumer information
that companies will receive from the national
registry is registrants’ telephone
numbers. The numbers will be sorted and
available by area code. Companies will
be able to access as many area codes as
desired (and paid for), by selecting,
for example, all area codes within a certain
state. Of course, companies also will
be able to access the entire national
registry.
18. Do I need
to pay for area codes that change (split)?
Occasionally, area codes
will be “split” into other
area codes to provide more numbers to
a densely populated area. When this occurs,
telemarketers who want those numbers will
be required to subscribe to the new area
code (assuming they have not already)
and pay for the new area code if it exceeds
their limit of five “no-cost”
area codes. If you have subscribed to
all area codes (the Global list) you will
not be required to pay for the new area
code.
19. May I check
just a few numbers at a time to see if they
are registered?
Companies that have
provided the required identification information
and certification, and paid the appropriate
fee (there is no fee to subscribe to five
or fewer area codes) will be allowed to
check a small number of telephone numbers
(10 or less) at a time via interactive
Internet pages. This will permit small
volume callers to comply with the do not
call requirements of the TSR without having
to download a potentially large list of
all registered telephone numbers within
a particular area.
20. What format
does the registry use?
Data is available from
the national registry using Internet-based
formats and download methods that serve
both small and large businesses. Data
also is available in three different sets:
full lists, change lists, and small list
look-ups. Full lists and change lists
are available as flat files or XML tagged
data files. You indicate your preference
for flat files or XML tagged data files
as part of your profile.
With a Web browser,
you may access a secure Web page that
allows you to select the download set
that you prefer. For the small list lookup,
you will be asked to enter from one to
10 telephone numbers on an online form.
After entering the numbers and clicking
a button, the national registry will display
the list of numbers you entered and whether
each number is in the national registry.
You will be limited
to the numbers in the area code(s) to
which you have subscribed. The full list
will contain just 10-digit telephone numbers,
with a single number on each line. For
the change list in flat file format, each
line of the file will contain a telephone
number, the date of the change, and an
“A” (for Added) or “D”
(for Deleted). The change list data will
be fixed-width fields.
For those who select
XML tagged data, the XML tags include:
a login and encrypted password; the name
and email address of the company contact
person; certification that access to the
registry is solely to comply with the
provisions of the TSR; the account number(s)
for which the download is being performed;
and whether a full list or change list
is to be downloaded.
For both flat files and XML tagged data,
if you select a change list, you will
be provided all telephone numbers that
have been added to, or deleted from, the
registry since the date of your previous
access. Change lists, for both flat files
and XML tagged data, are available to
provide changes on a daily basis (representing
the additions and deletions from the day
before).
To assist in automating
the download process, the national registry
offers the option to set up Web services
for requesting change lists in XML tagged
data format.
Paying
For Access
21. How much does
it cost to access the registry?
Data for up to five area codes is free. The annual fee is $56 per area code of data (after five), with a maximum annual fee of $15,400 for the entire U.S. database.
22. How often
do I have to pay a fee?
The fee must be paid
annually. Payment of the fee provides
access to the data for an “annual
period,” which is defined as the
twelve months following the first day
of the month in which the seller paid
the fee. For example, a seller who paid
its annual fee on September 15, 2004,
has an “annual period” that
runs from September 1, 2004 through August
31, 2005.
23. What is the
process for renewing my subscription?
The registry began accepting
subscription renewals on September 1,
2004. Organizations are notified of their
expiration dates when they log on to the
system. An organization may renew its
subscription no earlier than one month
before its expiration. Subscriptions also
are renewable after they expire. The new
12-month subscription period runs from
the first day of the month in which an
organization renews. Or, if the organization
renews during the month before its expiration,
the new 12-month subscription runs from
the first day of the next month —
starting immediately after the old subscription
ends.
24. Who must pay
the fee?
All sellers covered
by the TSR must pay the appropriate fee
for an area code of data before they call,
or cause a telemarketer to call, any consumer
within that area code, even those consumers
whose telephone numbers are not on the
registry. (Access to five or fewer area
codes is free.) The only exceptions are
for sellers that call only consumers with
which they have an existing business relationship
or written agreement to call, and do not
access the national registry for any other
purpose. Exempt Organizations
that voluntarily want to access the national
registry to prevent calling consumers
whose numbers are on the registry may
access it at no cost (see “10. What is an Exempt Organization?”). NOTE: Entities that have been granted tax exempt status under the Internal Revenue Code are not necessarily Exempt Organizations for purposes of the National Do Not Call Registry. See, e.g., FTC v. National Consumer Council, Inc., and FTC v. Debt Management Foundation Services, Inc. There, the FTC successfully challenged the status of a purported nonprofit organization whose role in fact was simply to generate leads for other firms which then charged consumers thousands of dollars in fees for their services..
Telemarketers and service
providers may access the registry, at
no cost, through the use of their seller-client’s
unique Subscription Account Number (SAN).
Even though they are not required by law
to do so, telemarketers and service providers
may gain access to the national registry
on their own behalf, but they must pay
a separate fee for that ability. But before
placing calls on behalf of a seller-client,
telemarketers are required to ensure that
their seller-client has a valid SAN.
25. How can I
pay the fee?
Fees are payable only
via credit card (which permits the transfer
of data in the same session, if the payment
is approved) or electronic funds transfer
(EFT). EFT requires you to wait approximately
three days for the funds to clear before
data access will be provided. The FTC
does not accept checks or any other form
of payment. You must pay the fee prior
to gaining access to the registry. Sellers
can pay the fee directly or through their
telemarketers or service providers (to
which the seller or exempt entity has
provided the necessary authority).
26. What if I
pay for a small number of area codes, and
then later in the year expand my business
to call more area codes? Will Ihave to pay
twice?
If you need to access data from more area codes than you initially selected, you may do so, but you will have to pay for access to those additional area codes if your total number of area codes exceeds five. Obtaining additional data from the registry during the first six months of your annual period will require a payment of $56 for each new area code. During the second six month period, the charge to obtain data from each new area code is $28. Payment for additional data provides you with access to the additional data for the remainder of your annual period.
27. What happens
after I pay for access?
After payment is processed,
you will be given a unique Subscription
Account Number (SAN) and permitted access
to the appropriate portions of the registry.
Using that SAN in future visits to the
website will speed the time needed for
access. On subsequent visits to the website,
you will be able to download either a
full updated list of numbers from your
selected area codes, or a more limited
list, consisting of changes to the registry
(both additions and deletions) that have
occurred since the day of your last download.
This limits the amount of data that you
need to download during each visit. The
change file will consist of each telephone
number that has changed, whether it was
added or deleted, and the date of the
change.
28. If I’m
a telemarketer or service provider working
for a seller, can I use the seller’s
account number to access the registry?
A telemarketer or other
service provider working on behalf of
a seller may access the registry directly
or through the use of its seller-client’s
SAN. If access is gained through its seller-client’s
SAN, the telemarketer or service provider
will not have to pay a separate fee for
that access. The extent of its access
will be limited to the area codes requested
and paid for by its seller-client.
If a telemarketer or
service provider is accessing the registry
directly — that is, if a telemarketer
or service provider decides to obtain
the information on its own behalf —
it will have to pay a separate fee and
comply with all requirements placed on
sellers accessing the registry. Such a
telemarketer or service provider will
be provided a SAN that can be used only
by that company. In other words, that
SAN is not transferable.
29. What if a
seller uses one telemarketer at the beginning
of the year and switches to another later
in the year? Will the seller have to pay
twice?
No. Each seller will
have a SAN that it can give to the telemarketers
and service providers who may access the
registry on the seller’s behalf.
Compliance
30. What happens
to companies that don’t pay for access
to the registry?
A company that is a
seller or telemarketer could be liable
for placing any telemarketing calls (even
to numbers NOT on the registry) unless
the seller has accessed the registry and
paid the fee, if required. Violators may
be subject to fines of up to $11,000 per
violation. Each call may be considered
a separate violation.
31. What if I
call a number that’s not on the registry
without checking the registry first?
It’s against the
law to call (or cause a telemarketer to
call) any number on the registry (unless
the seller has an established business
relationship with the consumer whose number
is being called, or the consumer has given
written agreement to be called). But it’s
also against the law for a seller to call
(or cause a telemarketer to call) any
person whose number is within a given
area code unless the seller first has
subscribed to and accessed the portion
of the registry that includes numbers
within that area code, and paid the annual
fee, if required.
In addition, it’s
against the law for a telemarketer, calling
on behalf of a seller, to call any person
whose number is within a given area code
unless the seller has first subscribed
to and accessed the portion of the registry
that includes numbers within that area
code, and paid the annual fee, if required.
Telemarketers must make sure that their
seller-clients have paid for access to
the registry before placing any telemarketing
calls on their behalf.
32. What’s
my liability if my company inadvertently
calls a number on the registry?
The TSR has a “safe
harbor” for inadvertent mistakes.
If a seller or telemarketer can show that,
as part of its routine business practice,
it meets all the requirements of the safe
harbor, it will not be subject to civil
penalties or sanctions for mistakenly
calling a consumer who has asked for no
more calls, or for calling a person on
the registry. To meet the safe harbor
requirements, the seller or telemarketer
must demonstrate that:
- it has written procedures to comply
with the do not call requirements
- it trains its personnel in those procedures
- it monitors and enforces compliance
with these procedures
- it maintains a company-specific list
of telephone numbers that it may not
call
- it accesses the national registry
no more than 31 days (starting January
1, 2005) before calling any consumer,
and maintains records documenting this
process
- any call made in violation of the
do not call rules was the result of
an error.
Troubleshooting
33. What if I
have problems when I try to access the national
registry?
The website at www.telemarketing.donotcall.gov has an online help desk available for email help requests during regular business hours via a secure electronic form. You need to provide your Organization ID and password to access the HELPDESK.
34. What if I
lose my password?
If you have forgotten
or lost your password, there is a separate
link to assist you. To receive a new password,
you will need to provide your Organization
ID and the email address of your Authorized
Representative.
35. Where can
I get more information about compliance?
The best source of information
about complying with the do not call provisions
of the TSR is the FTC’s website
at www.ftc.gov/donotcall. You can view
the entire TSR at that site. The comprehensive
guide, Complying with the Telemarketing
Sales Rule, is at www.ftc.gov/bcp/conline/pubs/buspubs/tsrcomp.pdf.
It’s important
that sellers and others involved in telemarketing
recognize that both the FTC and the FCC
regulate telemarketing practices. Those
involved in telemarketing should review
regulations put in place by both agencies.
The FCC’s regulations may be found
at www.fcc.gov/cgb/donotcall/.
