Does Your Business Need to Keep an “Internal” “Do-Not-Call” List?

I received a very strange call yesterday from a female name and caller ID that I did not recognize. The male caller identified himself using a different name and asked to be put on my “internal” “do-not call” list. He explained that he had received two calls from my company today at his work, was sent home, and does not want to be called by my company anymore.

I thought many of the facts from this conversation were curious, but the primary one was my law firm, while extremely familiar with “do-not-call” laws, does not place telemarketing calls and is not required to keep an “internal” “do-not-call” list of persons who have requested to not receive telemarketing calls from us in the future.

As many of you know, the Telephone Consumer Protection Act (“TCPA”) has been a source of thousands of purported class actions against businesses, and at $500 per violation, any number of violations quickly makes a lawsuit very expensive.

I wondered if this call was a setup of some sort, similar to those I have seen in the lead generation area, where a potential plaintiff creates calls, finds violations in those calls, then sues for them.

Companies which make calls for telemarketing purposes to residential subscribers violate the TCPA:

…unless such person or entity has instituted procedures for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of that person or entity. The procedures instituted must meet the following minimum standards:

(1)Written policy. Persons or entities making calls for telemarketing purposes must have a written policy, available upon demand, for maintaining a do-not-call list…

47 C.F.R. § 64.1200(d)(1).

The term “telemarketing” is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” Id. at (f)(12).

The Telemarketing Sales Rule (“TSR”) has similar restrictions. 16 C.F.R. § 310.4(b)(1)(iii)(A). 

Thus, many entities are not required to keep an “internal” “do-not-call” list. This includes my law firm which does not make telemarketing calls to residences. Other entities which are not required to keep a list would include entities making calls for informational purposes, such as appointments or service reminders, political calls, or charitable solicitations if the call is made by the charity itself rather than a professional fundraiser.

While these exemptions protect the caller from the “set up”, a business receiving such a request, even if exempt, may still want to comply with the request because it could be legitimate, i.e. the consumer really does not want calls from the company, of any sort, even though the TCPA and TSR probably would not make those calls illegal. If it was a set up call, i.e. at attempt to create a TCPA claim, the business might not want the hassle of defending the claim, even if the claim is invalid.

For me, I asked my co-workers if anyone had called the number, and when none of them had, I decided nothing further was needed, other than this article.

Please do not hesitate to contact me if you have questions regarding whether or not your company is required to keep an “internal” “do-not-call” list or TCPA compliance in general.