Telemarketing: How to Have a Quiet Evening at Home

Posted: Nov 01 1992  | Revised: Jul 01 2016

 

  1. National Do Not Call Registry
  2. Exemptions from the Do Not Call Registry 
  3. Company-Specific Do Not Call Lists
  4. How Do I File a Complaint about a Telemarketer?
  5. Robocalls
  6. Can I Sue Telemarketers? What Laws Cover Telemarketing?
    Federal laws
    California laws

1. National Do Not Call Registry

The most effective and easiest way to prevent telemarketing calls is to register your  phone number(s) with the National Do Not Call Registry operated by the Federal Trade Commission (FTC). You can register your home or mobile phone for free. The National Do Not Call Registry is only for personal phone numbers. Businesses 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. 

Telemarketers covered by the Do Not Call Registry have up to 31 days from the date you register to stop calling you. Your phone number will stay on the Do Not Call Registry permanently, unless you ask for your number to be removed from the list, or until you change your phone number.

 

The Do Not Call Registry only prohibits sales (telemarketing) calls. You still may receive political calls, charitable calls, debt collection calls, informational calls, and telephone survey calls.

 

If your number is disconnected and then reconnected, perhaps due to a payment lapse, you will need to re-register. If your phone number is changed, don't forget to register your new number.

 

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.

 

2. Exemptions from the National Do Not Call Registry

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:

  • Charities
  • 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. 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 that you can request your phone number be added to.

  • 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. 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. 

  • 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.
  • Affiliates. An existing business relationship also applies to certain 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 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. In general, if you have an ongoing account or an existing business relationship with a company, you may be telemarketed by its affiliates.
  • Inquiry or application for a product or service. 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. 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.

3. Company-Specific Do Not Call Lists

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 strategy even if you do not subscribe to the National Do Not Call 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.

 

Federal law allows 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. (47 CFR 64.1200; 16 CFR 310)

4. How Do I File a Complaint about a Telemarketer?

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 or 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.
  • 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
  • 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: fccinfo@fcc.gov
    • 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
    • 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 http://www.naag.org/naag/attorneys-general/whos-my-ag.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
     

5. Robocalls

A robocall is a phone call that uses a computerized autodialer to deliver a pre-recorded message. If you answer the phone and hear a recorded message instead of a live person, the call is considered a robocall.

 

The FCC has issued rules issued under the Telephone Consumer Protection Act (TCPA) to deal with robocalls.  These rules protect both cellular and landline phones from telemarketing (sales) robocalls made without prior written consent from the recipient.  In addition, all non-emergency robocalls, both telemarketing and informational, require a consumer's permission when made to a cellular phone.  Informational calls include political, polling, and other non-telemarketing robocalls.

 

There are exceptions for important informational calls such as financial fraud alerts, medication refills, and healthcare appointment reminders.   In addition, government employees and any contractors working on their behalf are excepted.

 

Consumers can take back their permission to be called in any reasonable way.  A company cannot require someone to fill out a form and mail it in as the only way to revoke consent.

 

SMS (phone to phone) text messages are subject to the same consumer protections under the TCPA as voice calls. Likewise, Internet-to-phone text messages that originate as e-mails and are sent to an e-mail address composed of the recipient’s wireless number and the carrier’s domain name are also covered by the TCPA.

 

You can learn more about robocalls by reading the FTC and FCC robocall pages and watching the FTC's video.

 

6. Can I Sue Telemarketers? What Laws Cover Telemarketing?

Yes. Both federal and state laws regulate telephone solicitations.

 

Federal Laws

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). 
  • 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).

Telemarketing and Consumer Fraud Abuse Prevention Act -- Telephone Sales Rules

  • 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))
     
  • Unlawful payment methods.  It is illegal for telemarketers to ask consumers to pay for goods or services using: (1) cash-to-cash money transfers, such as MoneyGram or Western Union, (2) PIN numbers from cash reload cards such as MoneyPak or Vanilla Reload, or (3) unsigned checks called “remotely created payment orders” to withdraw money directly from consumers’ bank accounts.
     
  • 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.

  • 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.

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 Laws

  • 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.

  • 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,
    see www.consumeraction.gov/utility.shtml

it is illegal for telemarketers to ask consumers to pay for goods or services using cash-to-cash money transfers, such as MoneyGram and Western Union provide, or by providing PIN numbers from cash reload cards such as MoneyPak, Vanilla Reload or Reloadit packs. It also is illegal for telemarketers to use unsigned checks called “remotely created payment orders” to withdraw money directly from consumers’ bank accounts.