Law Unclear on Third-Party DNC List Requests

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Vague federal regulations have left some telemarketers wondering what to do when they receive requests from third parties to place consumers on their do-not-call lists.


Telemarketers say they frequently receive do-not-call requests from people and organizations claiming to represent entire groups of consumers. Such groups often offer to place consumers on the do-not-call lists of hundreds of telemarketers for a fee.


Roberta Black, CEO of teleservices firm Dialogue Marketing, Taylor, MI, said her company gets about four to six requests a year. They are printed lists of names, generally numbering 300 to 500, from around the nation.


"They usually come with threatening language," Black said. " 'You are obligated under law,' 'there are potential fines,' that sort of thing."


The requests do not come in electronic format, so the names have to be hand-entered, incurring time and expense for the company, Black said. They also do not include any authenticating documents to support the legitimacy of the requests.


But are telemarketers legally bound to respect do-not-call requests made by intermediaries?


The issue arose at a meeting of the American Teleservices Association in Washington this month attended by representatives of the Federal Communications Commission and the Federal Trade Commission. Some conference attendees said they were unsure what to do with the requests and sometimes threw them away. The two agency representatives were asked whether third-party requests were legally binding. Neither was certain of the answer.


The federal law itself, the Telephone Consumer Protection Act, does not directly address the matter. In a letter of opinion issued in 1998, the FCC stated that it is "reasonable" to allow telemarketers to determine the circumstances under which third-party requests will be honored.


To teleservices attorney C. Tyler Prochnow of the law firm Lathrop & Gage, Kansas City, MO, the FCC letter is evidence that third-party DNC requests are not binding. However, Prochnow noted that respecting third-party requests is good business practice, providing the company can verify the legitimacy of the request.


Part of the problem with third-party DNC requests is that they can be abused by companies seeking to muscle out the competition, Prochnow said. Some companies have submitted their entire list of customers for placement on their competitors' DNC lists. In doing so, a company can monopolize telephone communications with its customers.


But those who have made legal action based on the TCPA into a business practically dare telemarketers to ignore third-party DNC list requests.


Bob Bulmash, president of Private Citizen, a Naperville, IL-based privacy organization, said telemarketers do so at their own risk. He said that since 1996, members of his organization -- who total about 7,000 -- have won at least $800,000 from telemarketing companies. About one-quarter of those winnings came from legal judgments against telemarketing companies that did not arrange out-of-court settlements, he said.


"If they want to keep their money, all they have to do is absolutely nothing," Bulmash said. "Leave us alone."


Prochnow said he is unaware of any judgments won by Bulmash or members of his group. Bulmash claimed that about 200 of his group's members have made themselves experts on TCPA law and can take on any attorney, including Prochnow.


"We can beat anybody," Bulmash said. "And we have."


Prochnow advised telemarketers to handle third-party DNC requests case by case. Two factors to consider are the size of the request and whether the person or organization making the request can provide supporting documents, such as power-of-attorney letters. Ignoring third-party requests could draw a lawsuit, Prochnow said.


"You are going to end up with more headaches than it's worth," he said.


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