Fact Sheet 5:
How to Have a Quiet Evening at Home
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Privacy Rights Clearinghouse
Most people have experienced that annoying ring of the phone just as dinner is put on the table. When you answer, you find it's not a call from a friend or family member, or even from work. It's someone calling to sell you something -- a telemarketer.
This guide explains what laws protect you and what you can do to eliminate sales calls, with emphasis on the National Do Not Call Registry. If you read nothing else in this guide, learn the toll-free number or website of the Registry and sign up right away.
- Toll-free Registry telephone hotline: (888) 382-1222
- Online registration: www.donotcall.gov
- National Do Not Call Registry
- Exemptions from the Do Not Call Registry
- Company-Specific Do Not Call Lists
- If Your State Maintains Its Own Do Not Call List
- "Junk" Faxes
- How Do I File a Complaint about a Telemarketer or Junk Faxer?
- Bogus Do Not Call Registry Solicitations
- Indirect Consequences of the Registry: Other Forms of Marketing and Deceptive Consent Schemes
- How to Stop Telemarketing Calls Not Covered by the Registry
- Caller ID Requirements
- Autodialed and Prerecorded Calls
- Can I Sue Telemarketers? What Laws Cover Telemarketing?
- Summary of Resources
The most effective and easiest way to prevent telemarketing calls is to register your home and personal phone number(s) with the National Do Not Call Registry operated by the Federal Trade Commission (FTC). You may put your residential telephone number(s) including cellular numbers on the opt-out list. The National Do Not Call Registry is only for personal phone numbers. Business-to-business calls and faxes are not covered by the National Do Not Call Registry.
You can sign up for the Do Not Call Registry two ways:
- The toll-free phone number is (888) 382-1222 (or for hearing impaired individuals TTY: (866) 290-4236).
- Online registration is available at www.donotcall.gov. You may register up to three telephone numbers at one time on the National Do Not Call Registry website. You can also verify your registration or submit a complaint online.
If you live in a senior housing complex or a dormitory with a private branch exchange (PBX) system, your phone number may not be properly matched when you attempt to sign up using the FTC's toll free number. In these situations, you will have to register through the Do Not Call Web site instead.
Telephone numbers placed on the National Do Not Call Registry remain on it permanently under the Do-Not-Call Improvement Act of 2007. Read more about it at http://www.ftc.gov/opa/2008/04/dncfyi.shtm.
If your number is disconnected and then reconnected, perhaps due to a payment lapse, you will need to re-register. If you are able to keep your same phone number when you move to a new location, we advise you to re-register to make sure your number is not de-listed. If your phone number is changed when you move, don't forget to register anew.
If the phone company changes the area code for your number, you do not have to re-register with the Registry. The number with the new area code will be registered for you during the 90-day period when both the old and new area codes work.
If you signed up for the Registry, you can verify if your phone number is on the list by going to https://www.donotcall.gov/confirm/Conf.aspx.
The laws that were updated to create the Do Not Call Registry (see Federal Laws in Part 12 below) restrict telemarketing calls to the hours between 8 a.m. and 9 p.m. States may have more restrictive time constraints for telemarketers who contact residents. For more information about the FTC's Registry and the law that governs it, visit www.ftc.gov/donotcall.
When it was originally established, the FTC's Registry only covered those industries under the jurisdiction of that agency, leaving out such industries as telecommunications companies, financial institutions, insurance companies, and "junk" faxers. The Federal Communications Commission (FCC) has since joined the FTC's Registry to close the loophole. Intra-state telemarketers must also comply with the National Do Not Call Registry. To learn more about the FCC's ruling regarding the Telephone Consumer Protection Act (TCPA), see Federal Laws in Part 12 below. Web: www.fcc.gov/cgb/donotcall
Local phone companies must notify customers once a year about the National Do Not Call Registry, including the toll-free number and Web site address.
Not all solicitation calls are covered by the Do Not Call Registry. It depends on the type of call being made. You can still be contacted by:
- Survey researchers
- Political campaigns
- Companies with which you have a business relationship
- Companies to which you have given written consent to remain on their calling list.
Companies with which you have an "existing business relationship" as well as their affiliates can call you within an 18-month window. And when you inquire about or apply for a service or product, that company can contact you within three months.
- Charities, surveys, religious groups, and politicians. Charities, religious groups, and politicians are not covered by the Do Not Call Registry and do not have to maintain an organization-specific Do Not Call list. In addition, because survey researchers and companies making customer service calls are not requesting a contribution or selling a product or service, they are not covered by federal telemarketing laws. We advise, however, that if you are contacted by an entity that is exempt from the National Registry and does not have to maintain a company-specific do not call list, that you ask them to put you on their do not call list anyway. Many maintain do not call lists as a courtesy.
If a nonprofit group uses a for-profit marketer to call you, they are still exempt from having to comply with the Do Not Call Registry. But they must maintain a company-specific Do Not Call list as outlined in Part 3 that you can request your phone number be added to.
In addition, charities that solicit through prerecorded messages must include a prompt keypress or voice-activated mechanism to allow an opt out. Charities will not, however, be subject to the more stringent requirement to obtain prior written permission before leaving a prerecorded message.
- Written consent to be contacted. Are there some telemarketers you are willing to call you? If you have subscribed to the Do Not Call Registry, you can notify specific sellers in writing with your signature and your phone number that you would like to continue receiving sales calls. This will give the specific telemarketer permission to contact you until you tell them otherwise.
Privacy tip: Be aware that marketers may attempt to get written consent without your knowledge by sending solicitations or e-mails that release them from their obligations to not call you (see Part 8). Read all documents and e-mails before signing and sending them back to a marketer to make sure you are not inadvertently giving the company permission to telemarket you. If you receive a marketing call because you inadvertently gave written consent, ask to be placed on that company's Do Not Call list. Company-specific do not call lists are explained in Part 3.
- Existing business relationships. If you have purchased a product or service or have an account with a company, that company has an "existing business relationship" (EBR) with you. You can be solicited by phone for 18 months after completing a transaction with a company or after you cancel your account even if you have previously signed up for the Do Not Call Registry. The 18-month time frame does not affect your ongoing relationships with companies. For instance, your bank or utility company can telemarket you throughout your relationship with them until you have told them to put you on their internal do not call list. You will not trigger the 18-month provision until your transaction is complete, until you cancel your account, or until you ask to be placed on the company-specific do not call list (explained in Part 3).
- Affiliates. An existing business relationship also applies to certain affiliates of a company. According to the Telephone Sales Rules, the definition of an established business relationship encompasses those affiliates of a company "that the consumer would reasonably expect to be included given the nature and type of goods or services offered and the identity of the affiliate." This means that affiliates of companies with which you have an existing business relationship, such as your phone company or bank, may be able to claim the same relationship and call you with solicitations even if you have signed up for the Do Not Call Registry. If you are contacted by an affiliate, they too must comply with your request to be placed on their company's do not call list. below.)In general, if you have an ongoing account or an existing business relationship with a company, you may be telemarketed by its affiliates. You should only be contacted by an affiliate of a company if the name of the affiliate is similar and if it provides a similar service.
- Inquiry or application for a product or service. According to the Telephone Sales Rules, inquiring about or applying for a service or product entitles a telemarketer to contact you for up to three months -- even if you are already listed on the Do Not Call Registry. If you call a toll-free number about a product or inquire or apply for a service on a Web site, your phone number is likely to be requested or captured (see Part 9). In such instances, you can be contacted by that company for up to three months. According to the FTC, signing up for a contest or sweepstakes is not considered an inquiry or an application and should not result in telemarketing calls from those companies unless the application indicates that by signing you have given express consent. If you receive a sales call from a company that has your phone number because you inquired or applied for a product or service, you can ask the company to put you on its internal do not call list.
In essence, there are two Do Not Call lists - the National Registry and a company's internal do not call list. Most telemarketers, even those that are exempt from the Do Not Call Registry, are still required to maintain their own company-specific do not call list. If you are contacted by a company that is exempted from the National Registry, you can request to be placed on the company's inhouse do not call list. You can take advantage of this inhouse strategy even if you do not subscribe to the National Registry.
If you ask a company with which you have an existing business relationship to put you on their company-specific do not call list, that company can no longer call, even if you continue doing business with them. If you request to be placed on the do not call list of a company with which you have an existing business relationship, your request will not apply to their affiliates. If an affiliate calls, you will have to request to be placed on that company's do not call list as well.
All telemarketing calls made by prerecorded message must include an opt-out mechanism. This can be accomplished automatically by pressing a number or by a prompt referring you to a live person. The automatic opt out is required for business callers and charities, entities otherwise exempt from the national do-not call registry.
This does not, however, apply to health-related calls such as to those made to confirm an appointment. Nor does it apply to "informational" messages such as to confirm service calls or change flight schedules.
Federal and state laws allow you to take legal action against telemarketers who do not add your number to their internal do not call list and who call you back within twelve months of requesting to be placed on that list. (See Federal Laws in Part 12 below, 47 CFR 64.1200; 16 CFR 310)
Many states have Do Not Call laws that apply to residents of those states. According to the FCC, these laws will still apply when the state's rules are stricter than the national rules. The federal rules constitute a floor. They override all less-restrictive state Do Not Call rules.
If your state maintains its own Do Not Call list, check with the appropriate state agency to learn if you should register for both the state list and the National Registry. Most states that have their own lists have merged with the FTC's National Registry. To learn if you need to subscribe to both the state and federal Do Not Call lists, visit these Web sites. If these sources are not clear, you will need to contact your state Attorney General's consumer enforcement office. The Direct Marketing Association maintains a list of states with Do Not Call lists at www.the-dma.org/government/donotcalllists.shtml.
To learn additional information about your state's law, including whether your state has enacted stricter laws regarding telemarketing calls, contact the consumer protection office in your state, such as the Attorney General's consumer law division. A list of these agencies is found in The Consumer Action Handbook of the Federal Consumer Information Center, www.consumeraction.gov/state.shtml.
There may be conflicts between federal and state laws. California law offers a good example of how a state statute differs from the national law.
- California Business and Professions Code 17511 requires that certain telemarketers, such as investment firms, insurance, and financial services companies, register with the state. Information about the registration process can be found at the web site of the California Attorney General, http://ag.ca.gov/consumers/general/telreg.php .
- California defines an affiliate as an entity that shares the same "name brand." Existing California law allows California businesses with fewer than 6 employees to telemarket consumers within 50 miles of the business' physical location.
- California law mandates that state residents who inquire or apply for a product or service sold by a California business can only be contacted for 30 days after the initial contact according to California Business and Professions Code 17592. This may take precedence over the federal 90-day guidelines since it is more restrictive.
The law is simple and clear regarding unsolicited faxes. Federal law states that "no person may use a telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine "without that person's prior express invitation or permission." (47 USC 227 (a)(4)) Yet, unsolicited faxes are common.
The only companies that should be sending you fax solicitations are those with which you have an existing business relationship (EBR) (see Part 2). Updates to federal telemarketing law, explained in Part 12 below, categorically state that "junk" faxes are a violation unless you have given written consent with your signature.
The following regulations apply to fax messages. Any message sent by fax must clearly mark the following in the margins at the top or bottom of each transmitted page of the message or the first page of each transmission:
- Date and time it is sent; the sender; the fax broadcaster if applicable; and, the phone number (not a 900 number) of the sender or of the sending machine.
These identification requirements depend on the manufacturing date of the device. Fax machines manufactured on or after December 20, 1992, must clearly include this information on the first page or on each page of the transmission. (47 USC 227) Fax modem boards manufactured on or after December 13, 1995, must also follow these requirements. (47 CFR 68.318)
Here are some tips for dealing with unsolicited faxes.
- You can file a complaint about unsolicited faxes with the Federal Communications Commission (Part 6 below).
- To see a list of companies that the FCC has taken action against for sending junk faxes, go to www.fcc.gov/eb/tcd/ufax.html.
- If you receive a junk fax, contact the toll-free number listed on the fax and ask them to no longer send you faxes. Be sure to save junk faxes as evidence of the violations and note the date and the person with whom you spoke when you asked to no longer receive faxes.
- You may wish to talk with an attorney about filing a private lawsuit against the faxer. Or you can consider filing suit in small claims court under the federal Telephone Consumer Protection Act (TCPA). For more information about this law and private actions, read Part 12 and Part 13 below.
- For information about civil suits and filing small claims actions against junk faxes, see
www.junkfax.org, www.junkfaxes.org and www.keytlaw.com/faxes/tcpa.htm.
Once you have registered for the Do Not Call Registry, you should no longer receive calls from most telemarketers unless they are exempt. If you receive a call from a telemarketer who is not exempt, you may file a complaint with the Federal Trade Commission and the Federal Communications Commission.
The law gives telemarketers a "safe harbor" when they erroneously contact individuals listed in the National Registry. A telemarketer is not liable for violating the National Do Not Call rules if it can demonstrate the call was made in error. A call is considered erroneous if a telemarketer can show that it has taken the necessary steps to comply with laws regarding the National Registry and its company-specific do not call list. These include personnel training, written policies, and updating its calling list with new national registrants every month. The following are instances where you should consider filing a complaint against a telemarketer. If you:
- Are on the Do Not Call Registry and are contacted by a telemarketer who is not exempt.
- Receive a telemarketing call that you believe is a scam or is misleading.
- Are solicited to pay a fee to join the National Do Not Call Registry (see Part 7).
- Are not put on a company's company-specific do not call list after requesting to be.
- Have received a junk fax without having an existing business relationship with the sender.
You will need to compile as much information about the company as possible to include with your complaint: the company's phone number as transmitted through Caller ID or your fax machine, or provided verbally by the telemarketer, the name of the company, and date of the call or fax. If the telemarketer says it is calling on behalf of another company, you can ask for the name of the telemarketing company in addition to the name of the company on whose behalf they are calling. Do not forget to provide your phone number on the complaint, especially if you are listed on the National Registry. If you are complaining about a junk fax, be sure to provide your fax number on the complaint.
Both the Federal Trade Commission and Federal Communications Commission can fine telemarketers up to $11,000 per violation. This fine can be assessed for each phone call to a number that is subscribed to the registry. (16 CFR 1.98) Both the FCC and FTC will share complaints with each other and with states' attorneys general for possible action against telemarketers who violate state and federal laws. The following is a guideline for determining which agency to file a telemarketing or junk fax complaint with.
Complaints may be made to:
- Federal Trade Commission (FTC) - Registry violations
- Types of complaints: Telemarketers who violate the Do Not Call Registry.
- Telephone: (888) 382-1222TDD: (866) 290-4236
- Online complaint form: https://www.donotcall.gov/Complain/ComplainCheck.aspx
- For general information about the FTC's National Do Not Call Registry, visit its Web site at www.ftc.gov/donotcall.
- Federal Trade Commission (FTC) - deceptive business practices
- Types of complaints: Telemarketers who make misleading claims and who participate in possible scams.
- Telephone: (877) FTC-HELP (877-382-4357)TTY: (866) 653-4261
- Online complaint form: www.ftccomplaintassistant.gov/
- To mail your compliant:
Federal Trade Commission
Consumer Response Center
600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580
- Federal Communications Commission (FCC)
- Types of complaints: Telemarketing calls involving financial institutions, insurance companies, telecommunications carriers, intra-state telemarketers, and junk faxes. Also takes complaints about telemarketers who do not comply with company-specific do not call requests.
- Telephone: (888) CALL-FCC (888-225-5322)
- TDD: (888) TELL-FCC (888-835-5322)
- Online complaint form: www.fcc.gov/cgb/complaints.html
- Email complaints: email@example.com
- To mail your complaint:
Federal Communications Commission
Common Carrier Bureau, Consumer Information
445 12th St., S.W.
Washington, D.C. 20554
- California Office of the Attorney General (AG)
- Types of complaints: Telemarketing calls to residents within the state that are possible scams, that make fraudulent claims, or are misleading, including bogus Do Not Call Registry solicitations (see Part 7)
- Telephone: (800) 952-5225 or calls from outside of California: (916) 322-3360
- Online complaint form: http://oag.ca.gov/contact/consumer-complaint-against-business-or-company
- To mail your complaint, first obtain the form by calling the AG at (800) 952-5225, or printing it from the AG's Web site:
California Attorney General
Public Inquiry Unit
P.O. Box 944255
Sacramento, CA 94244-2550
- Other states' Attorneys General
The National Association of Attorneys General provides a 50-states directory at www.naag.org/attorneys_general.php.
- Public Utilities Commissions (PUC) and Public Service Commissions (PSC)
These state agencies regulate telephone calls and telecommunication services in many states. For contact info. for your state's PUC or PSC, see: www.consumeraction.gov/utility.shtml
- Small Claims Court
If you ask a company to put you on the company-specific do not call list and they call you back within 12 months, you can also file a claim against them in small claims court. (See Part 12 and Part 13 below.)
The FTC does not allow private companies or third parties to register consumers for the Registry. Companies that claim they can register a consumer for a fee are a scam. Subscribing to the Do Not Call Registry is a free service of the federal government.
Ironically, scam artists have been known to telemarket consumers soliciting them to subscribe for a fee to the National Do Not Call Registry. The California Attorney General, the FTC, and other agencies have shut down such companies. If you are contacted by a company that offers this service, file a complaint with the FTC as explained above in Part 6.
Because millions of Americans have subscribed to the National Do Not Call Registry, marketers are seeking other strategies to contact consumers, including "junk" mail and unsolicited e-mail ("spam"). If you reply to mail or spam solicitations with a signature and your phone number, you may inadvertently consent to be telemarketed. Here are some scenarios:
- To enroll in a sweepstake or to receive a free product, you are instructed to reply with at least a signature and a phone number. The fine print indicates that by completing the form, you agree that you may be telephoned even if your number is found on a do not call registry or inhouse list.
- You learn about a great product or deal through an e-mail solicitation. You are instructed to reply with your name and phone number so a sales representative can call you.
To learn how to decrease the amount of junk mail and unsolicited e-mail you receive, read our fact sheets on these topics:
- Fact Sheet 4: "Junk Mail: How Did They All Get My Address?"
- Fact Sheet 20: "Anti-Spam Resources: Halting the Junk E-Mail Juggernaut" www.privacyrights.org/fs/fs20-spam.htm
Many telemarketers are exempt from the National Do Not Call Registry as discussed in Part 2. If you want to minimize the number of telemarketing calls you receive from these excluded companies, be cautious when giving out your phone number. According to the FTC, simply filling out a sweepstakes or contest entry form is not considered giving consent unless the form indicates that by signing and providing your phone number, you have given express permission to be contacted by phone. If you are contacted, follow the steps outlined in Part 3.
Here are some additional situations where you might unwittingly give your phone number to telemarketers:
- Pre-printed checks. We recommend that you do not preprint your phone number on your checks. Hand-write it when merchants ask for it, and consider using your work number instead of your residence. Similarly, avoid providing your phone number and address when you register on Web sites.
- Telephone books and reverse directories. If you are listed in the phone book, telemarketers who are exempt from the Registry can obtain your contact information from the phone company. To prevent the cross-referencing of your address with your phone number, you can choose to not have your information available in the phone book or through directory assistance. If your number is "unlisted," your name, address and phone number will not be printed in the phone book, but the information is available through both directory assistance and reverse directory assistance. If your number is "unpublished," your information will not be printed in the phone book and is not available through directory assistance or reverse directory assistance. Or you can list your name and phone number, but not your address. Telephone companies usually charge a monthly fee to be unlisted or unpublished.
- Haines & Company, Inc., Criss-Cross Directory, Attn: Director of Data Processing, 8050 Freedom Ave. N.W., North Canton, OH 44720. Send a letter requesting that your listing be removed.
- Equifax (formerly R.L. Polk), Attn: List Suppression File, 26955 Northwestern Hwy., South Field, MI 48034. (800) 873-7655. Give your name, address, City, State, ZIP code and phone number.
- Online Information Brokers. A growing number of websites sell (or give freely) the personal information of individuals. The types of information available via these databases may include name, address, and phone number. Many consumers find it difficult to effectively remove their information from these lists. You can read more about these online data brokers at http://www.privacyrights.org/ar/infobrokers.htm. For a list of of online information brokers see http://www.privacyrights.org/online-information-brokers-list.
- 800, 888, 877, 866, and 900 numbers. When you use a toll-free number to call a business with which you have an account or to inquire about a product or service, your phone number may be captured by a system called Automatic Number Identification (ANI). This technology automatically identifies and stores the number from which you are dialing. By matching your phone number with other lists and street address directories, your name and address can often be discovered and added to the company's calling and mailing list. Not only will the company that captured your number be able to use it, they can sell or share it with their affiliates.
Federal law places restrictions on the use and sale of your phone number when you call a toll-free or 900 number. According to FCC regulations, the individual's consent is required before a company can reuse or sell ANI information. However, a company may reuse ANI information to market a product or service that is directly related to the product or service the caller previously purchased (47 CFR 64.1602). California phone companies that offer ANI must notify their customers annually that the use of an 800, 888, 877, 866, or 900 number may result in the disclosure of the caller's telephone number to the called party (California Public Utilities Code 2891.2).
If you are concerned about a company capturing your phone number when calling their toll-free number, find out if the company lists a separate toll number you can call (long distance charges may apply). If an alternate phone number is not provided, ask the customer service representative at the toll-free number to put you on the company's do not call list.
Consumers often complain that their Caller ID devices do not display the phone numbers of telemarketers. Instead, they see "out of area" or "unknown caller." Federal telemarketing rules now prohibit telemarketers from blocking their calling numbers. They must be displayed on Caller ID devices. Telemarketers must transmit a telephone number and if possible, the company name to your Caller ID device. Because they are prohibited from blocking Caller ID information, individuals who subscribe to Caller ID or who use the *69 call-return feature will be able to determine the phone numbers of telemarketers or place a return phone call to them. The phone number must be one that you can call during normal business hours to request to be put on the company-specific do not call list. The law also requires telemarketers to provide you their phone number when you ask for it.
Once a favored tool for screening calls, a Caller ID display may now be just another tactic used by crooks to get you to pick up the phone. The growing practice of “Caller ID spoofing” should make you question the true origin of many calls. Fake IDs can be easily created by inexpensive software or by routing calls through the Internet. As a result, you may be tricked into thinking the call is from your bank, credit card company, a known charity, a local business or a government agency.
Caller ID spoofing has become so prevalent in recent years that Congress passed the Truth in Caller ID Act of 2009, with enforcement and rules left to the Federal Communications Commission (FCC). To avoid falling victim to an ID spoofing scam, the best defense is to never share your personal information with a caller--no matter who the caller claims to be.
You have other strategies for preventing telemarketing calls.
- Screen your calls with an answering machine or voice mail service. Your local phone company offers other "custom calling services" in addition to Caller ID such as Privacy Manager that can be used to limit unsolicited calls.
- Some private companies sell devices that block unwanted calls.
For further information, read the following PRC fact sheets:
- Fact Sheet 3: "How to Put an End to Unwanted or Harassing Phone Calls" https://www.privacyrights.org/content/how-put-end-unwanted-or-harassing-phone-calls
- Fact Sheet 19: "Caller ID and My Privacy: What Do I Need to Know?"
Keep in mind that phone company services involve a monthly fee. The National Do Not Call Registry is a free service.
Random digit dialing devices are able to determine all possible phone number combinations, even unlisted numbers, and dial them much more rapidly than any person can. Some telemarketers use "predictive dialing" technology to call consumers who are not on the National Do Not Call Registry. A computer dials many phone numbers in a short period of time. When an individual answers, the computer seeks a sales representative who is not occupied and connects the call. If all employees are handling other calls, the consumer hears dead silence. These are "abandoned calls."
Many people are frightened when they receive abandoned calls. They wonder if someone is harassing them, or if a burglar is checking to see if they are not home. In most cases, these calls are from telemarketers.
In addition, prior express consent is required for all autodialed or prerecorded informational calls or informational text (SMS) messages to cell phones The consent for informational calls and messages need not be in writing. There is an exception for informational messages from health care providers.
You can read more about these rules at http://www.kleinmoynihan.com/publication/new-tcpa-rules-effective-october-16-2013/ and Covington & Burling Client Alert
The FTC has a Consumer Alert on "robocalls" at http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt200.shtm
and an infographic at http://www.consumer.ftc.gov/sites/default/files/pictures/0381-robocalls-infographic.png.
War dialing is a technique where a telephone number will be dialed to see if it belongs to a fax line so that junk faxes can subsequently be sent to that number. This practice was banned when the Telephone Consumer Protection Act was updated (see Part 5 and Part 12).
Yes. Both federal and state laws regulate telephone solicitations.
There are two major federal laws that regulate telemarketing. They somewhat overlap and are discussed below in more detail.
- The Telemarketing and Consumer Fraud Abuse Prevention Act, is overseen by the Federal Trade Commission (FTC). (15 USC 6101-6108; 16 CFR 310). For the latest version of the TSR rules, see
www.access.gpo.gov/nara/cfr/waisidx_09/16cfr310_09.html also called the Telephone Sales Rules (TSR)
- The Telephone Consumer Protection Act of 1991 (TCPA) focuses on the uses of telephone lines, and is regulated by the Federal Communications Commission (FCC). (47 USC 227; 47 CFR 64.1200).
Federal laws, also known as the U.S. Code, can be found online at www.law.cornell.edu/uscode. Federal regulations, known as the Code of Federal Regulations, or CFR, are found online at www.gpoaccess.gov/cfr/index.html.
Telemarketing and Consumer Fraud Abuse Prevention Act -- Telephone Sales Rules
The Telephone Sales Rule's provisions on the National Do Not Call Registry are explained in previous sections. The following are additional aspects of the Rules not discussed above.
- Do not call lists. You can sue telemarketers who violate the company-specific do not call law. However, it is more difficult to sue under this law than under the Telephone Consumer Protection Act (see below). For instance, you can only sue in federal court and must show damages greater than $50,000. (15 USC 57(a))
- Disclosures. Telemarketers must promptly make certain disclosures including that it is a sales call, what they are selling, and the identity of the seller. If the call is for a prize promotion, the caller must tell you that no purchase or payment is required to win a prize or participate in a prize promotion. (16 CFR 310.4 (d))
Before the customer pays, the telemarketer must disclose the total costs of the goods, any restriction on getting or using them, and whether all sales are final or non-refundable. If the call is for a prize promotion, they must tell you the odds for winning, that no purchase or payment is required to win, and all material costs or conditions to receive the prize. (16 CFR 310.3 (a)(1))
Telemarketers who offer credit card loss protection plans cannot mislead consumers to purchase their product if it provides benefits or protections already afforded under federal law (15 USC 1648) regarding the limit of cardholder's liability for fraudulent charges. (16 CFR 310.4(a)(2))
- No misrepresentation. Telemarketers cannot misrepresent any information including the total cost and the quality of any goods or services. In addition, telemarketers may not make false or misleading statements to persuade you to purchase any goods or services. (16 CFR 310.3 (a)(2))
- Checking accounts and unauthorized billing. Telemarketers cannot obtain or withdraw money from your checking, savings, or similar accounts without your express verifiable authorization. Before charging your credit card account, the telemarketer must get your informed consent and must specify the amount. If a telemarketer has your account information before the call and offers you goods or services on a free trial basis before automatically charging the account, the telemarketer must get your permission to use the account number, ask you to confirm the number by repeating the last four digits, and record the entire phone transaction. This is called a "free-to-pay conversion" offer, also known as a "negative option." (16 CFR 310.2(o) and (t))
- Unencrypted billing information. Telemarketers are prohibited from disclosing, receiving, or transferring unencrypted account information. (16 CFR 310.4(a)(5))
Telephone Consumer Protection Act of 1991 (TCPA)
National Do Not Call Registry. The Federal Communications Commission in 2003 updated this rule so that industries under its jurisdiction must also comply with the FTC's Do Not Call Registry. (47 CFR 64.1200(c)(2))
- Do not call lists. The TCPA requires most telemarketers who are exempt from the National Registry to take you off their company-specific calling lists at your request. (47 CFR 64.1200(e)(2)) Telemarketers must add your phone number to this list within 30 days of the request. (47 CFR 64.1200 (e)(2)(vi)) Further, telemarketers must have a written policy for maintaining their own do not call lists, available upon demand. (47 CFR 64.1200 (e)(2)(i)) If you have received more than one call by or on behalf of the same company in one year after you have told the company to place your name on the do not call list, you can:
- Sue the telemarketer in state court (usually small claims is recommended) to stop such calls and/or to recover a penalty. (47 CFR 64.1200 (e)(2)(iii)) The penalty is actual monetary loss or up to $500, whichever is greater, for each call received after you requested to be placed on the do not call list. If the court finds that the marketer willfully or knowingly broke the law, the penalty is up to three times the actual monetary loss or up to $1,500, whichever is greater. If the telemarketer did not send a copy of its company-specific do not call policy, you can claim additional damages.The penalty for violations with respect to automatic dialing systems, prerecorded messages and facsimile machines, is $500 or actual damages, whichever is greater. The penalty for willful or knowing violations is $1,500 or three times the actual damages.
- File a complaint with the FCC (see Part 6).
Privacy tip: If you want to take action against a company that continues to call, send a certified letter, return receipt requested, demanding to be placed on the company's do not call list. Keep a copy of the letter and the return receipt as proof. Also, keep a log of all calls and of your requests for the company's do not call policy.
California statutes can be found on the Internet at the Web site http://leginfo.legislature.ca.gov/faces/codes.xhtml. Some of the provisions described below may not be enforceable because they are weaker than federal FCC laws (see Part 4).
- Do Not Call list. Under California Business and Professions Code sections 17590-17595, any telemarketer who contacts Californians must comply with the National Do Not Call Registry. Telemarketers must purchase those California numbers that are included in the National Registry from the FTC with some exceptions. The exemptions are as follows:
- Businesses with which you have an established business relationship. Nonprofit groups to which you have donated or participated in an event.Tax-exempt charitable organizations.
- Calls to verify that a subscriber has terminated an established business relationship.
- Civil action. In addition to the California Attorney General, a district attorney, or a city attorney filing a civil action against a telemarketer, California consumers may bring a civil action in small claims court for an injunction. If the consumer receives further solicitations within 30 days after the injunction is ordered, a subsequent action can be filed in small claims to be awarded a civil penalty of up to $1,000. (California Business and Professions Code 17593)
- Disclosures. The telemarketer must disclose specific information at the time of the sales pitch. The disclosures depend on the type of goods or services the telemarketer is selling. For example, a telemarketer selling office equipment or supplies below normal costs must disclose the address of the location caller and the name of the manufacturer of each item being sold. (See California Business and Profession Code 17511.5 for a list of disclosures.)
- Recorded messages. Unsolicited prerecorded calls for the sale or lease of goods or services are banned unless a "live" operator first asks permission to play the tape. The operator must also tell the person who answers the phone the name of the caller and either the caller's address or telephone number. The operator must also ask if the person consents to hear the recorded message. Companies can use recorded messages when they contact established customers or if you have requested their call. (California Civil Code 1770(22)(A))
If you have suffered damages as a result of prerecorded calls, you may sue to recover damages, stop the calls, restore your property and/or obtain other relief that the court believes you deserve (California Civil Code 1780).
- Automatic dialing-announcing devices. Marketers use automatic dialing-announcing devices to advertise using pre-recorded messages. These calls are prohibited unless a "live" operator first makes an announcement to the person called. The operator must state the nature of the call and the name, address and telephone number of the business. The caller must also inquire if the person consents to hear the prerecorded message. This requirement does not apply to law enforcement or other specified agencies that use the automatic dialing-announcing device to provide information relating to public safety, police, or fire emergencies. (California Public Utilities Code 2872-2874)
Automatic dialing-announcing devices may be used if the person being called has given prior consent, if there is a prior business relationship, if they have requested the call, or for other specified purposes including a school contacting a student's parent/guardian regarding attendance. (California Public Utilities Code 2872, 2873) These devices may only be used in California to place calls received in California from 9:00 a.m. to 9:00 p.m. (California Public Utilities Code 2872)
The California Public Utilities Commission (CPUC) imposes penalties for violations of the use of automatic dialing-announcing devices. The penalty is a fine up to $500 for each violation and/or disconnection of the telephone service to the automatic dialing-announcing device for a period of time as specified by the CPUC. (California Public Utilities Code 2876)
Monitoring or recording telephone calls. The California Supreme Court held in Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914 (2006) that out-of-state businesses are prohibited from monitoring or recording their telephone calls with California residents, even if that conduct takes place in any of the states where only one party's consent is required to lawfully monitor or record a telephone call. Thus, California 's two-party consent law governs any calls between a company's location in a one-party consent state and customers located in California. Read more about this decision at http://www.mofo.com/resources/publications/2006/07/california-two_party-consent-law-applies-to-reco__.
- Federal laws and U.S. Codes can be found online at www.law.cornell.edu/uscode.
- Federal regulations, known as the Code of Federal Regulations, CFR, are found at www.gpoaccess.gov/cfr/index.html.
- California statutes can be found on the Internet at, http://leginfo.legislature.ca.gov/faces/codes.xhtml.
- A list of Web sites of laws in other states is available at, www.findlaw.com/casecode/#statela.
- Federal Trade Commission (FTC)
Consumer Response Center
600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580
To sign up for the National Do Not Call Registry:
- Telephone: (888) 382-1222TTY (866) 290-4236
- Web: www.donotcall.gov
To verify your registration:
To notify the FTC if you believe a telemarketer has violated the Registry:
- Telephone: (888) 382-1222TTY (866) 290-4236
- Web: https://complaints.donotcall.gov/complaint/complaintcheck.aspx?panel=2
For additional information about the Registry:
To file a complaint about a telemarketer other than violations of the Registry:
- Telephone: (877) FTC-HELP (877-382-4357) TTY: 866-653-4261
- Online complaint form: www.ftccomplaintassistant.gov/
- Mail your complaint to the FTC's Consumer Response Center (address above).
- Federal Communications Commission (FCC)
Consumer and Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th St., S.W.
Washington, DC 20554
To contact the FCC:
- California Office of the Attorney General
Public Inquiry Unit
P.O. Box 944255
Sacramento, CA 94244-2550
- Telephone: (800) 952-5225 California only. Calls from outside of California: (916) 322-3360.
- Web: www.ag.ca.gov
Other State Laws and Agencies
- State Do Not Call lists
- National Association of Attorneys General:
Contact information for state AGs, www.naag.org/attorneys_general.php
- 50-state directory of state, county, and city consumer protection offices in The Consumer Action Handbook of the Federal Consumer Information Center,
- Public Utilities Commissions (PUC) and Public Service Commissions (PSC) regulate telephone calls and services in many states. For contact information for your state's PUC or PSC,
- Consumer Federation of America offers an excellent guide Understanding Your Telemarketing Rights and Avoiding Fraud
- For a $20 annual fee, Private Citizen will list you in its Do Not Call Private Citizen Directory which is distributed twice a year to the major telemarketing firms. This service applies to telemarketers who are exempt from the National Registry and therefore must maintain a company-specific do not call list. Call (800) CUT-JUNK. Private Citizen also sells the booklet, "So You Want to Sue a Telemarketer." Web: www.private-citizen.com
- The Web site of Californians Against Telephone Solicitation provides numerous tips including testimonials from those who have successfully taken telemarketers to court for company-specific do not call violations, www.stopjunkcalls.com.
- For junk fax resources, see www.junkfax.org, and www.keytlaw.com/faxes/tcpa.htm.
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