Guidance Regarding How Frequently You Must "Scrub" Against Do-Not-Call Lists

William E. Raney, Partner - Copilevitz & Canter, LLC

Federal and state law often provide a "safe harbor" for violations of "do-not-call" lists for companies which diligently attempt to comply but call a number as a result of error (e.g., data entry) or a number that has been recently added to a list. This article will refresh your memory regarding how frequently you must "scrub" against "do-not-call" lists to take advantage of these defenses for federal cell phone and "do-not-call" laws, and state "do-not-call" laws.

Federal Do-Not-Call Laws

The Telephone Consumer Protection Act ("TCPA") and the Telemarketing Sales Rule ("TSR") both provide a safe harbor for entities making telephone solicitations if they meet certain requirements and "scrub" no more than 31 days prior to the date that any call is made. 47 C.F.R. § 64.1200(c)(2)(i); 16 C.F.R. § 310.4(b)(3).

Similarly, an entity is required to implement a company-specific "do-not-call" list within a reasonable period of time, not to exceed 30 days. 47 C.F.R. § 64.1200(d)(3); 16 C.F.R. § 310.4(b)(iii)(A).

Federal Cell Phone Laws

The regulations implementing the TCPA provide that an entity placing a call to a number which has been ported from a landline to a cell phone would not be liable for calls to that number provided the call was made within 15 days of porting the number from wireline to wireless service and the number is not already on the national "do-not-call" registry or the caller's company-specific "do-not-call" list. 47 C.F.R. § 64.1200(a)(iv).

While this 15-day restriction has been interpreted as a frequency restriction, i.e. you must "scrub" against the ported numbers database at least every 15 days, the ported numbers database has not proven to be 100 percent accurate.

An interesting question arises, then, for a number which is transferred on a given date and then much later (more than 15 days) is found on the ported numbers database. The safe harbor runs from when the line is ported, not from when the line appears on the ported numbers database (and when any business would have any reasonable way of knowing the number had been ported).

This issue has not yet been resolved by courts or administrators at the ported number database.

State Do-Not-Call Laws

Most states are either silent, i.e., have no restrictions with regard to how frequently you must "scrub" against a state "do-not-call" list or adopt the federal standard which requires "scrubbing" the "do-not-call" list no more than 31 days prior to the date that any call is made. Because several states publish their updates quarterly, you should "scrub" against these quarterly updates as quickly as possible.

Let me know if you have questions regarding any of the above procedures.

List

"Scrub" Frequency

Citation

Federal Do-Not-Call

31

47 C.F.R. § 64.1200(c)(2)(i); 16 C.F.R. § 310.4(b)(3)

Federal Cell Phone

15

47 C.F.R. § 64.1200(a)(iv)

State Do-Not-Call

Based on frequency of State updates

Varies

Recordkeeping

See above.  Records must be kept for at least five years from the date of creation. 

Letter from Allen Hile, Assistant Director, FTC, to Kristen Marshall, Attorney, Copilevitz & Canter, LLC (April 15, 2008), 28 U.S.C. § 2462

Let me know if you have questions regarding any of the above procedures.

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