According to the Federal Communications Commission (FCC), unsolicited calls are one of the biggest sources of consumer complaints that they receive. Congress took note of that fact and enacted the Telephone Consumer Protection Act (TCPA) to restrict telemarketing calls. The TCPA was later strengthened by the addition of a provision for a national Do Not Call registry. It allows consumers to add their names to a list of numbers telemarketers are not allowed to call.
So, if the TCPA and Do Not Call Registry exists, how come I still receive phone calls regarding public opinion surveys? What exactly does it take to comply with the law while cold calling.
In this article we’ll answer some of those questions, and hopefully bring some clarity to the issue of just what is required for TCPA compliance.
What Is the TCPA?
The TCPA was enacted by Congress in 1991, and is administered by the FCC, which added a significant update in 2013. Indeed, it is designed to restrict or ban the telemarketing practices that consumers find most egregiously annoying.
There are three main provisions to TCPA:
- Ban telemarketing calls that use a prerecorded or artificial voice.
- Restrict calls or texts to cell phones using an automated telephone dialing system (ATDS).
- Implement Do Not Call restrictions.
Let’s take a closer look at these provisions. Note that in some cases the rules for calls to residential phones and those to cell phones are somewhat different.
- Any call made for the purpose of promoting present or future sales of commercial products or services is considered a telemarketing call. Calls made for purely non-commercial or informational purposes, or for debt collection purposes, are not considered to be telemarketing calls.
- The FCC has defined a category it calls “dual-purpose” calls. These calls seem non-commercial but are actually designed to arouse consumer interest. An example would be a call asking a consumer to take a survey to win a free prize. When the consumer takes the survey, they are required to pay charges to receive the prize they were promised. The FCC considers such calls to be telemarketing calls.
- Telemarketing calls that employ a prerecorded or artificial voice without the “prior express written consent” are strictly prohibited.
- Calls made using an automated telephone dialing system (ATDS) or an artificial or prerecorded voice are strictly regulated. According to the Legal Information Institute of the Cornell Law School, an ATDS is defined as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”
- With the exception of emergency calls or those made with prior consent, it is illegal to make ATDS calls to emergency lines (including “911” and health facility emergency numbers), or to the lines of health care providers and fire protection or law enforcement agencies. Also forbidden are ATDS calls “to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment,” or “to any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States.”
Calls to Residential Phones
- Calls to residential phones can only be made between the hours of 8 am and 9 pm (recipient’s local time).
- Non-telemarketing calls made by or on behalf of a tax-exempt nonprofit organization are allowed.
- Calls employing a prerecorded or artificial voice made for purely informational purposes, such as a pharmacy calling a consumer to inform them of a ready prescription is ready, are allowed.
- Any calls made using auto-dialing (ATDS) equipment must include a provision allowing consumers to immediately (during the call) opt-out of receiving such calls.
Calls to Cell Phones
- It is illegal to make any call, except for emergency calls, using ATDS equipment without “prior express written consent”. This applies to both personal and business cell phones.
- Telemarketing calls to cell phones are strictly forbidden unless prior written consent to receive calls from that company has been given.
- Non-telemarketing calls are forbidden unless consent (not necessarily in writing) has been given.
What Is the Do Not Call list?
In 2003 the FCC established a Do Not Call Registry (DNC) as part of the TCPA. That registry is now managed by the Federal Trade Commission (FTC) under the Telemarketing Consumer Fraud and Abuse Prevention Act.
Consumers place their phone numbers on the DNC to be protected from receiving unwanted calls. It is illegal under all circumstances to make telemarketing calls to numbers listed on the DNC registry.
However, calls are allowed if the number is listed in the national DNC registry. These include calls from charities, political organizations, telephone surveyors, or businesses with which a consumer has an existing business relationship (EBR). An EBR claim can be made only if the consumer carried out a transaction with the seller within the previous 18 months, or inquired about the seller’s goods or services within the previous three months.
In addition to honoring the national DNC registry, businesses engaging in telemarketing are also required to maintain an internal company-specific do not call list that consumers can use to opt-out of calls from that company.
Market Research Is Exempt From the Do Not Call List
According to the FTC, market research calls are specifically exempted from the prohibitions of the national Do Not Call list as long as they do not involve solicitation.
Note, however, it is prohibited to call cell phones using autodialers. The Gallup organization was recently required to pay a $12 million settlement in a class-action suit resulting from them calling cell phones using an automatic telephone dialing system without prior express consent.
How to Find out More About Cold Calling
This has been just a brief overview of the regulations concerning telemarketing and cold calling.
At Precision Opinion, home of one of the largest market research call centers in the United States, we take pride in the measures we take to remain TCPA compliant and being mindful of the people that we call. If you would like to go deeper into how we remain compliant to gather the quality insights that your company deserves on their market research projects, please contact us.