United States: The National Do-Not-Call Registry

Last Updated: August 7 2019
Practice Guide by Klein Moynihan Turco LLP

In 2003, the Federal Trade Commission (the “FTC”) and Federal Communications Commission (the “FCC”) established the National Do-Not-Call Registry (www.donotcall.gov). The Registry provides telemarketers with a list of phone numbers belonging to consumers who wish to limit the telemarketing calls that they receive.

Registration and Access

Who can register?

A person may register landline and/or mobile phone numbers with the National Do-Not-Call Registry. Consumers should register only their own personal telephone numbers. Fax and business phone numbers are not covered.

The National Do-Not-Call Registry includes telephone numbers from all area codes of the 50 states, the District of Columbia, Puerto Rico, U.S. Virgin Islands, Guam, North Mariana Islands and American Samoa, as well as toll-free numbers.

Who may access the Registry, and who must?

Telemarketers and sellers must access the National Do-Not-Call Registry and pay all required fees before making any telemarketing calls. Telemarketing service providers may access the registry. The only consumer information that subscribers will receive from the National Do-Not-Call Registry is registrants’ telephone numbers, and access is granted for the sole purpose of preventing telemarketing calls to the listed numbers.

Compliance with National Do-Not-Call Regulations

Who enforces National Do-Not-Call regulations?

The FTC’s Telemarketing Sales Rule (“TSR”) imposes a number of telemarketing restrictions in connection with the National Do-Not-Call Registry. Additional regulations are implemented and enforced by the FCC. In some circumstances, state attorneys general are also able to enforce provisions pertaining to the National Do-Not-Call Registry.

Regulations Related to the National Do-Not-Call Registry

A person may violate the TSR and other federal telemarketing regulations by:

  • Placing a telemarketing call to a person whose number is on the Registry, unless the caller qualifies for one or more of the exemptions outlined below;
  • Using the Registry for any purpose other than complying with applicable regulations; and/or
  • Interfering with a person’s right to be placed on the Registry.

Established Business Relationship Exemption

A seller may call a consumer whose phone number is on the National Do-Not-Call Registry (provided the consumer has not also asked to be placed on the seller’s internal do-not-call list) if the consumer has:

  • Purchased, rented or leased the seller’s goods or services, or entered into a financial transaction with the seller, within 18 months preceding the subject telemarketing call; or
  • Inquired about or applied for the seller’s goods or services within 3 months preceding the subject telemarketing call.

Importantly, the Established Business Relationship exemption does not necessarily apply when the calling party is one of the seller’s subsidiaries or affiliates.

Express Written Consent Exemption

Sellers and telemarketers are allowed to call consumers who expressly agree 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 request must be clear and conspicuous, the consumer’s consent must be affirmative and the agreement must include the number to which calls may be placed.

“Safe Harbor” Exemption

A seller or telemarketer will not be subject to civil penalties or sanctions for calling a number on the National Do-Not-Call Registry if the caller erroneously placed the subject telemarketing call and, as part of its routine business practice:

  • Establishes, implements and enforces written internal do-not-call procedures;
  • Maintains an internal do-not-call list;
  • Trains its personnel and affiliates in these procedures; and
  • Synchronizes its calling lists with an updated version of the National Do-Not-Call Registry every 31 days.

On December 12, 2018, the FCC ordered the creation of a reassigned numbers database that will provide a narrowly tailored safe harbor for sellers and/or telemarketers that inadvertently contact a call recipient that had not consented to be called at a number that had been reassigned to him/her. A call will only be shielded from liability in the event that the database returns an inaccurate result to the caller upon query. Part of the FCC’s order required the North American Numbering Council (“NANC”) to file a report on the technical issues related to the development and implementation of a reassigned number database. The deadline to file the report on June 13, 2019 has been extended to September 13, 2019. Until this report is submitted, it remains uncertain as to when sellers and/or telemarketers will have the ability to access the reassigned number database for purposes of taking advantage of this safe harbor.

Note: State Do-Not-Call Registries and Regulations

In addition to regulations related to the National Do-Not-Call Registry and internal do-not-call lists, approximately 14 states have implemented their own do-not-call registries and associated prohibitions. Sellers and telemarketers should also ensure that they are in compliance with state do-not-call rules and regulations.

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

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