Complaints cause inquiries from regulators and inquiries, no matter if the business is totally legally compliant or not, are expensive and put a business in the defensive situation of having to rebut an assumption of guilt. When a regulator receives a complaint, he or she generally assumes the complaint to be true and leaves it to the business to rebut, at its own expense and peril, that complaint, even if compliance measures were in place.
When faced with legal compliance issues, a business must decide how conservative its compliance plan should be. This article will consider a situation where I would recommend a course of action even more conservative than the law might require based on good business sense. Sometimes a safe compliance course requires being one step ahead and anticipating consumer complaints, thus avoiding attorneys’ fees and ill will from regulators and consumers, even though another course might be legal.
I once met with a state assistant attorney general regarding a compliance matter which I thought was simple. The attorney general had received complaints about my client, but the state statute which may have regulated other telemarketers’ similar activity did not apply to my client based on an exemption. I explained to the attorney general that my client was exempt from the statute he alleged the complaints showed my client had violated.
“My client is exempt,” I said, “and here’s why. . . .”
“But I have 80 complaints,” he said.
Thinking he may not have heard the statutory citation, or processed the information I gave him, I repeated “My client is exempt. . .”
“But I have 80 complaints.”
Sometimes the voice of consumers speaks louder than what is legally compliant.
It is good business sense to not create consumer complaints regardless of legal compliance. Complaints cause inquiries from regulators and inquiries, no matter if the business is totally legally compliant or not, are expensive and put a business in the defensive situation of having to rebut an assumption of guilt. When a regulator receives a complaint, he or she generally assumes the complaint to be true and leaves it to the business to rebut, at its own expense and peril, that complaint, even if compliance measures were in place.
Good business sense sometimes means taking a course of action which prevents complaints in advance.
Federal and State law
Here is the specific example: federal and state laws require that businesses honor consumer “do-not-call” requests for a period of at least five years from the date the request is made. This “company specific do-not-call” list requirement is separate and complementary to the national and state “do-not-call” lists. Even if the national and state “do-not-call” lists do not apply to a given campaign, a business still has to honor consumers’ company-specific requests which sever any established business relationship or express consent exemption.
The FTC has not had many opportunities to enforce this restriction, primarily, in my opinion, because most businesses realize that it is a waste of time and money, as well as a legal risk, to continue to contact consumers after they express disinterest.
One instance of enforcement, however, shows how seriously the FTC takes this provision. In April 2009, DirecTV entered into settlement with the FTC which included a payment of $2.3 million after DirecTV (through a marketer) conducted a campaign to call persons on its company-specific “do-not-call” list. The calls asked the consumers to remove their names from the list so that they could receive offers in the future. Although the calls themselves did not contain an offer, the FTC considered these calls to be part of an overall marketing campaign and banned by the company-specific “do-not-call” requests the consumers had made in the past.
Even though the calls to persons on the list were at least one step removed from any marketing effort, the FTC considered them to be illegal and imposed a stiff financial penalty.
It is also well-settled that any form of a consumer company specific “do-not-call” request is valid, i.e. a business can not make the consumer submit the request in writing, via e-mail, etc. Once the consumer makes the “do-not-call” request, the business is required to honor it within a reasonable period of time not to exceed 30 days.
A client recently asked whether a script could include a response to a consumer “do-not-call” request, attempting to persuade the consumer to not make such a request. My response was that such a “rebuttal” likely did not need to be researched legally as it was a bad idea which would create consumer complaints and a potentially harsh regulatory reaction. If a person says “don’t call me,” he or she does not want to argue.
I did ultimately prepare a legal opinion on the topic, but the point is that your scripts, training, and other materials, should do everything possible to not create consumer complaints.
You should do what you can to avoid such complaints. It makes sense.