How to Evaluate the Legality of an Outbound Calling Campaign

I have probably reviewed thousands of outbound calling campaigns in an effort to ensure they comply with federal and state law.  I often use just two questions to determine compliance.  Now, for a short time only, I’ll give you these two questions FOR FREE!

  1. Do your calls comply with “do-not-call” list rules?
  2. For calls to cell phones, do they comply with the Telephone Consumer Protection Act (“TCPA”) “cell phone call ban[1]”?

If the answer to both these questions is “yes,” the call is legal at the federal level.

The source of confusion, however, is that the legal exemptions (which lead to a “yes” answer) for both questions have similar answers, but both questions must be asked, as the answers are not always the same.  For example, a consumer’s prior express consent allows for a “yes” answer for both questions, but an established business relationship does not.

It is not as simple as it first appears.  The questions must also be answered at the state level because state statutes have similar, but not exactly the same, exemption language, e.g. a call in response to an inquiry is exempt from the federal “do-not-call” list, but it is not exempt from every state “do-not-call” list law.

For example, Joe’s Widget Company has a database of consumer telephone numbers of existing customers.  It wants to call them to renew a service contract, but it has no reliable records of how it obtained the numbers in the first place.

On the federal level, the answer to whether the calls comply with the “do-not-call” list rules is “yes” because calls to existing customers are exempt from the federal “do-not-call” list.  For cell phone calls, however, the answer to whether they comply with the TCPA cell phone call ban is “no” as an established business relationship is not the same as express consent.  So these calls cannot be placed to cell phone numbers using an automatic telephone dialing system (“ATDS”) or prerecorded voice.

On the state level, every state but Indiana allows calls to existing customers.  This campaign would need to “scrub” against the Indiana “do-not-call” list.  Similarly, calls to cell phone numbers in some states would need to be suppressed because Joe’s does not have prior express consent.  On the state level, there is no “non-ATDS” dialing exemption from these rules.

Please let me know if you have additional questions related to your compliance efforts.

[1] See 47 U.S.C. § 227(b)(1)(A)(iii).