[author: Katie Trial]
With the rise of TCPA Class Actions and Telemarketing, many companies wonder if they are fully compliant and following federal regulations regarding telemarketing policies. If your business uses phone calls or text messages for marketing purposes, you probably need to have a do not call policy or “DNC policy”. In this article, we’ll explain what DNC policies are and why it’s important for your business to have a DNC policy in place.
What is a DNC policy?
A Do Not Call policy describes 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 available to consumers upon request is a key part of 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 laws that offer sellers and telemarketers protection from penalties due to unintentional errors, as long as they meet a specific set of requirements. Safe Harbors exist to free telemarketers from potentially vague regulatory language and to provide a set of rules that, if followed in their entirety, ensure the seller is protected from penalties. It is important that companies calling and texting consumers for marketing purposes have a DNC policy in place and follow up/enforce the policy to claim this safe harbor defense.
When should a company have a DNC policy?
Any company that makes calls or send text messages for marketing or sales purposes must have written procedures in place to comply with national DNC rules, which are required by the TSR and TCPA.
In order to comply with federal requirements, companies must develop and implement written procedures to appropriately accept DNC requests, remove phone numbers from their internal DNC list, remove phone numbers from the National Registry of DNC and properly use the trade relationship exemptions established by the federal government.
What is the risk of not having a DNC policy?
There are multiple risks, including legal risks, that can arise from the lack of a DNC policy. A DNC policy forms the basis of a compliance program, which is a Safe Harbor requirement. Companies should ensure that their employees and third-party vendors are aware of the DNC policy and are trained in this 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 their attorney choose to file a class action lawsuit against a company, the fines can be enormous, reaching tens of millions of dollars depending on the frequency of violations and the number of class members. .
Professional complainants know that companies are required to maintain a DNC policy and will often request a copy of the policy from target companies. For example, in a May 2022 case, a Texas judge ruled that a debt collector could be sued by a consumer who alleged that the debt collector failed to maintain a written “do not call” policy and to train its employees in this. policy under TCPA 47 CFR § 64.1200(d). Callier c. Debt Mediators, LLC, 2022 US Dist. LEXIS 81965 (WD Tex. May 5, 2022). The Court held that this TCPA rule was a “do not appeal” rule that provides a private cause of action, as opposed to a technical standard rule, which does not provide a private cause of action.
The problem with this ruling is that it allows professional plaintiffs to allege multiple violations per appeal and seek damages well in excess of the $500 or $1,500 per appeal provided by the TCPA drafters.
What should your DNC policy contain?
Creating a DNC policy is not that complicated. DNC policies should outline the process for accepting and honoring DNC requests and should include the following details:
- A telemarketer must register the DNC request with the consumer’s name and phone number on your company’s internal Do Not Call list.
- The DNC policy should state that a DNC request must be honored within a reasonable time, not to exceed 30 days from the request.
- Additionally, you must maintain a record that all telemarketing personnel have read and understood the DNC Policy. You must periodically update training regarding the DNC Policy and keep records of that training.
- Finally, as stated above, the policy must be provided to anyone who requests it “on request”. You must maintain a record of responses to such requests.
Learn more about what should be included in your internal DNC policy here: “What should be in your internal ‘do not call’ policy and when should you provide it?”