Legal Concerns Remain Despite Lack of Restrictions on Frequency of Telemarketing Calls

Summary

Telemarketers must be vigilant to ensure telemarketing calls do not annoy, abuse, or harass any person.  While the TCPA and TSR do not place limits on the frequency of telemarketing calls, companies may still be subject to liability for calls that are repeatedly and continuously made.

Article

More than 20 years ago, Congress enacted the Telephone Consumer Protection Act (“TCPA,” 47 U.S.C. § 227 et seq.) in response to an increasing number of complaints consumers had regarding the practices and frequency of telephone calls made by telemarketers.

Interestingly, while the TCPA and the similar Telemarketing Sales Rule (“TSR,” 16 C.F.R. § 310 et seq.) are broad in scope, neither federal regime places restrictions on the frequency of telephone calls made to a given consumer during a specified time period.  State laws also do not limit the frequency of telephone calls.  Thus, telemarketers are permitted to call consumers as often as they like as long as the calls are not otherwise illegal, e.g. the callers comply with the national do-not-call list, etc.

However, telemarketers must be careful to not inundate consumers with an excessive number of telephone calls.  Under the TSR, it is an abusive practice for a telemarketer to engage in, or for a seller to cause a telemarketer to engage in, “causing any telephone to ring, or engaging any person in telephone conversation, repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number ….”  16 C.F.R. § 310.4(b)(1)(i).

Thus, while there are no restrictions on the frequency of telephone calls made to a given consumer during a specified time period, the calls cannot be made repeatedly or continuously with intent to annoy, abuse, or harass any person.  In commentary to the TSR, the FTC stated that:

The Commission has taken this prohibition virtually verbatim from the [Federal Debt Collection Practices Act], and finds no reason to alter this language. The staff commentary to the FDCPA states that “continuously” means “making a series of telephone calls, one right after the other,” and that “repeatedly” means “calling with excessive frequency under the circumstances.”  The Commission believes that if a telemarketer calls a consumer continuously or repeatedly, as those terms have been defined, it is presumed that the caller’s intent was to annoy, abuse, or harass the person being called.

60 Fed. Reg. 43842, 43854 (Aug. 23, 1995).

Based on the language of the TSR and its commentary, telemarketers must be vigilant to ensure telemarketing calls do not annoy, abuse, or harass any person.  While the TCPA and TSR do not place limits on the frequency of telemarketing calls, companies may still be subject to liability for calls that are repeatedly and continuously made.