When Does a “Do-Not-Call” Request Sever an Existing Business Relationship and Vice Versa?

Summary

The national “do-not-call” list and most state “do-not-call” lists exempt marketing calls placed to consumers with whom the caller has an established business relationship. If, however, the consumer makes a company-specific “do-not-call” request, then the business is not permitted to call a consumer.

Article

The national “do-not-call” list and most state “do-not-call” lists exempt marketing calls placed to consumers with whom the caller has an established business relationship. 

What happens, however, if a consumer tells the business to not call in the future?  The FCC and FTC have been very clear, stating that “the relationship, once begun, exists for 18 months in the case of purchases or transactions and three months in the case of inquiries or applications, unless the customer ‘terminates’ it by, for example, making a company-specific do-not-call request.” 70 Fed. Reg. 19330, 19333 (April 13, 2005).  The FCC, in the same document noted that “any do-not-call request made of a particular company must be honored for a period of five years from the date the request is made….”  Id. at 19332.  So, although the established business relationship itself may not be severed, i.e. a credit card issued by a bank to a consumer could still be used by the consumer, accumulate debt, etc., the established business relationship exemption for calling by that bank ends when the consumer asks not to be called.  That request, however, applies to marketing calls. 

The TCPA defines “telephone solicitation” as:

the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message:
(i) To any person with that person’s prior express invitation or permission;
(ii) To any person with whom the caller has an established business relationship; or
(iii) By or on behalf of a tax-exempt nonprofit organization.

47 C.F.R. § 64.1200(f)(14).  If your calls do not meet this definition, they are not subject to the consumer’s “do-not-call” request.  However, if you do place non-telephone solicitation calls to persons on your internal “do-not-call” list, it would be very important for your script to disclose that the call is not for marketing purposes, that it not actually be for marketing purposes, and your employees be trained to diffuse any situation which may arise from calling such a list, i.e. be very careful.

Finally, I’d like to review the reverse situation.  What happens if a person on a business’ internal “do-not-call” list makes a purchase creating an established business relationship?  For example, a consumer may refuse a credit card solicitation, make a company-specific “do-not-call” request, and later sign up for a financial product from the same seller online. 

The later purchase does not nullify the earlier “do-not-call” request.  The seller should still not place marketing calls to that consumer for a period of five years. 

It is important to note that the “do-not-call” request is consumer-specific and if the number changes hands or is otherwise reassigned, the business does not have to honor the internal “do-not-call” request to that number now held by a different consumer.

There are list cleaning services available which can access records of disconnected and transferred numbers so as to “clean” your internal “do-not-call” list so that it does not grow unchecked forever.

State law duplicates the federal scheme with some small exceptions.  In no state would a business be permitted to call a consumer after that consumer made a company-specific “do-not-call” request.