Is Safe Harbor Realistic?

Perfection – a fairly unrealistic, difficult, if not impossible, goal to set for yourself. Sellers and telemarketers may not be in control of every action conducted by or on behalf of their company. However, as long as the seller or telemarketer can prove that certain requirements were met and certain processes were in place to prevent errors, the Federal Trade Commission (FTC) has provided companies with a Safe Harbor to prevent liability for erroneously calling numbers on a Do Not Call (DNC) list.

So, how can sellers and telemarketers protect themselves against unintentional errors when contacting consumers?

Here are the six elements sellers and telemarketers must establish as part of their routine business practices to claim Safe Harbor under the FTC:

1. “The seller or telemarketer has established and implemented written procedures to honor consumers’ requests that they not be called.”
   Any seller or telemarketer placing solicitous calls to consumers must create and document a DNC Policy specific to their company that outlines the processes and procedures to honor a consumer’s DNC request.
2. “The seller or telemarketer has trained its personnel, and any entity assisting in its compliance, in these procedures.”
   Any employee placing calls on behalf of a seller or telemarketer must be trained on the company’s DNC policy and the appropriate process to handle a consumer’s request not to be called. Training on the DNC policy should be formally documented.
3. “The seller, telemarketer, or someone else acting on behalf of the seller or charitable organization has maintained and recorded an entity-specific Do Not Call list.”
   All DNC requests must be collected and added to the seller’s or telemarketer’s internal DNC list. Further, prior to placing any solicitous calls, numbers should be suppressed against the internal DNC list to avoid consumer complaints and DNC violations. Suppression against this list must be documented and recorded.
4. “The seller or telemarketer uses, and maintains records documenting, a process to prevent calls to any telephone number on an entity-specific Do Not Call list or the National Do Not Call Registry. This, provided that the latter process involves using a version of the National Registry from the FTC no more than 31 days before the date any call is made.”
   As stated above, numbers must be suppressed against applicable DNC lists prior to being called. Sellers and telemarketers must ensure that when suppressing against the National DNC Registry, a version no older than 31 days is used. Records of suppression must be maintained accordingly.
5. “The seller, telemarketer, or someone else acting on behalf of the seller or charitable organization monitors and enforces compliance with the entity’s written Do Not Call procedures.”
   Ongoing monitoring and enforcement is a critical element of Safe Harbor. Without monitoring and enforcement over guidelines, DNC policies, or any of the requirements above, compliance may be doubtful. Monitoring and enforcement proves a seller or telemarketer actively enforces any and all requirements to ensure ongoing compliance with the federal requirements.
6. “The call is a result of error.”
   The seller or telemarketer must be able to prove that, with items 1-5 above in place, the erroneous call was unintentional.

In order to claim Safe Harbor, the six requirements outlined above must apply to the seller, telemarketer, and anyone else acting on behalf of the seller or telemarketer. Perfection may be impossible to attain as some errors may occur without knowledge or intent. However, companies that adhere to the FTC requirements and the Safe Harbor elements outlined above may get fairly close to the idea of perfection and will be able to maintain compliance.

For more information regarding questions as to how your business can ensure it meets the requirements of Safe Harbor, please contact us at consulting@compliancepoint.com.