Do You Need a “Do Not Call” Policy?

With the rise of TCPA and telemarketing class action lawsuits, many companies wonder if they are fully compliant and following federal regulations related to telemarketing policies. If your company uses phone calls or text messages for any marketing purposes, you likely need to have a Do Not Call Policy or a “DNC Policy.” In this article, we will cover what DNC policies are and why it is important for your company to have a DNC policy in place.

What is a DNC policy?

A Do Not Call policy outlines a company’s policy for honoring a consumer’s request not to be called and specifies a process for accepting and honoring DNC requests made by consumers. Maintaining a written DNC policy and making a version of it available to consumers upon request is a key component to establishing a Safe Harbor defense.

Safe Harbor is a provision of the Telemarketing Sales Rule (TSR), the Telephone Consumer Protection Act (TCPA), and several state statutes that provide sellers and telemarketers protection from penalties due to unintentional mistakes, as long as they meet a specific set of requirements. Safe Harbors exist to free telemarketers from potentially vague regulatory language and to give a set of rules that, if followed in its entirety, ensures the seller’s protection from penalties. It is important that companies that call and text consumers for marketing purposes have a DNC policy in place and ensure the monitoring/enforcement of the policy to claim this safe harbor defense.

When does a company need to have a DNC Policy?

Any company that places calls or sends text messages for marketing or sales purposes must have in place written procedures to comply with the National DNC rules, which are required by the TSR and the TCPA.

In order to comply with federal requirements, companies must develop and implement written procedures for appropriately accepting DNC requests, suppressing telephone numbers on their internal DNC list, suppressing telephone numbers on the National DNC Registry, and correctly utilizing the federal established business relationship exemptions.

What’s the risk of not having a DNC Policy?

There are multiple risks, including legal risks, that can come from not having a DNC policy. A DNC policy forms the foundation of a compliance program, which is a requirement of Safe Harbor. Companies should ensure their employees and third-party vendors are aware of the DNC policy and are trained on the policy.

The FCC’s TCPA allows for a private right of action in which consumers can sue for up to $1,500 per violation. If a consumer and/or his or her attorney chooses to seek a class-action lawsuit against a company, the fines can be enormous, potentially into the tens of millions of dollars depending on the frequency of violations and the number of members in the class.

Professional plaintiffs know companies are required to maintain a DNC policy and often will request a copy of the policy to target companies. For example, in a case in May of 2022, a judge in Texas ruled that a debt collector could be sued by a consumer who alleged the debt collector failed to maintain a written “do-not-call” policy and train its employees in that policy under the TCPA regulation 47 C.F.R. § 64.1200(d). Callier v. Debt Mediators, LLC, 2022 U.S. Dist. LEXIS 81965 (W.D. Tex. May 5, 2022). The Court ruled that this TCPA regulation was a “do-not-call” rule which provides for a private cause of action, as opposed to a rule setting a technical standard, which does not provide for a private cause of action.

The problem with this ruling is that it allows professional plaintiffs to allege multiple violations per call and claim damages vastly exceeding the $500 or $1,500 per call intended by drafters of the TCPA.

What should be in your DNC Policy?

Creating a DNC policy is not that complicated. DNC policies need to outline the process for accepting  and honoring DNC requests and should include the following details:

• A telemarketer must record the DNC request with the consumer’s name and telephone number on your company’s internal Do Not Call list.
• The DNC policy should outline that a DNC request must be honored within a reasonable time, not to exceed 30 days of the request.
• Furthermore, you should maintain a record that all telemarketing personnel has read and understands the DNC policy. You should periodically update training regarding the DNC policy and keep records of that training.
• Finally, as set forth above, the policy is required to be provided to anyone who requests it “upon demand.” You should maintain a record of responses to these requests.
  

Read more about what should be included in your internal DNC policy here: “What needs to be in your internal “do-not-call” policy and when must you provide it?”

Please reach out to us at connect@compliancepoint.com if you have any questions about this topic or how CompliancePoint can assist your organization with managing your marketing compliance.