Use DNC Exemptions - With Caution

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Compliance is simple, at least according to the Federal Trade Commission. The FTC's Web site, FTC.gov, explains that the national do-not-call registry applies to "any plan, program, or campaign to sell goods or services through interstate phone calls." This includes telemarketers who solicit consumers, often on behalf of third-party sellers. It also includes sellers who provide, offer to provide or arrange to provide goods or services to consumers in exchange for payment.


Exceptions exist for political organizations, charities and telephone surveyors. If you don't fall into these categories, then you need to ensure that the consumer you call is not on the national registry, or your state's DNC registry, if applicable, before calling them.


For those not covered by these categories, the FTC provides three exemptions to the national no-call registry:


· A telemarketer or seller may call a consumer with whom it has an established business relationship for up to 18 months after the consumer's last purchase, delivery or payment, even if the consumer's number is on the national registry.


· A company may call a consumer for up to three months after the consumer makes an inquiry or submits an application to the company.


· If a consumer gives a company written permission, the company may call that consumer even if the consumer's number is on the registry.


One caveat: If a consumer asks a company not to call, the company may not call, even if an established business relationship exists. A company may not call a consumer - regardless of whether the consumer's number is on the registry - if the consumer has asked to be put on the company's in-house no-call list.


Federal Communications Commission rules make it illegal to call cell phones. This seems simple enough, but how do you know a number is a cell phone? This is a problem since the FCC began letting consumers "port," or move, their number from a land line to a cellular phone. A mistake here can cost you.


What is the definition of an existing business relationship? It seems clearly defined. But what if you are a mortgage company that gets leads through existing relationships with Realtors? Unless the mortgage company and the real estate company are the same, the mortgage company is not the company that the consumer has a relationship with. Nor did the consumer make an inquiry of the mortgage company. The mortgage company cannot call the consumer without violating the national DNC.


Consider a large company that has multiple divisions. Let's say it has a consumer banking division and an insurance division. If the consumer has a relationship with the banking division, the insurance division cannot consider that the consumer has a relationship with it. The insurance division needs to develop an independent relationship with the consumer.


The FCC also has oversight responsibility for the registry. It recently sought a fine of $770,000 against Dynasty Mortgage, alleged to have called consumers who had placed their phone numbers on the national DNC. Nonetheless, according to the Direct Marketing Association's 2004 Response Rate Report, telemarketing still has the highest response rate of the 12 types of media it tested. It still pays to use the telephone.


It's also important to note that, prior to the creation of the national registry, several states had their own DNC legislation. Forty-three states have DNC legislation. Though many of the states use the national registry as their own, some do not. Also, exemptions differ by state. Check with your state's attorney general or your attorney to ensure you are in compliance.


Compliance options. Some companies opt to handle compliance in-house. Others outsource compliance to an experienced third-party provider. Inexpensive, effective solutions are available. Either way, it's less expensive to be in compliance than not.


The overwhelming popularity of the national and state DNC registries shows that consumers are fed up with calls from companies that don't do their homework and that don't properly target their prospecting and sales efforts. Make sure you abide by the national and state DNC laws. Noncompliance can be very costly.


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