The Two Do-Not-Call Lists, and How Long a Seller May Keep Calling

Answer first: two lists, and the company one is the stronger of the pair

The Telemarketing Sales Rule, 16 CFR part 310, refers to two different registries in the same subsection, and they do different jobs. Section 310.4(b)(1)(iii) makes it an abusive practice to initiate an outbound telephone call to a person when either "That person previously has stated that he or she does not wish to receive an outbound telephone call made by or on behalf of the seller," or "That person's telephone number is on the 'do-not-call' registry, maintained by the Commission."

The first of those is the company-specific list. It is created by a person saying so, to the company, and the rule attaches no exceptions to it. The second is the national registry, and the rule attaches two exceptions to it — described below — which is why a number on the national registry can still ring.

The rule also prohibits obstructing the first list. Section 310.4(b)(1)(ii) forbids "Denying or interfering in any way, directly or indirectly, with a person's right to be placed on any registry," and then names the specific tactics: "harassing any person who makes such a request; hanging up on that person; failing to honor the request; requiring the person to listen to a sales pitch before accepting the request; assessing a charge or fee for honoring the request; requiring a person to call a different number to submit the request; and requiring the person to identify the seller making the call or on whose behalf the call is made."

That last item is easy to miss and useful to know. A company may not condition an opt-out on the caller correctly naming which seller is behind the call.

The 540-day and 90-day windows

The national registry has an exception for an existing relationship, and the rule puts a number on how long that relationship lasts. Section 310.4(b)(1)(iii)(B)(2) permits a call to a registered number where the seller "Can demonstrate that the seller has an established business relationship with such person, and that person has not stated that he or she does not wish to receive outbound telephone calls" under the company-specific provision.

Section 310.2(q) then defines the relationship, and defines it twice. It means a relationship based on "The person's purchase, rental, or lease of the seller's goods or services or a financial transaction between the person and seller, within the 540 days immediately preceding the date of a telemarketing call," or on "The person's inquiry or application regarding a good or service offered by the seller, within the 90 days immediately preceding the date of a telemarketing call."

Those two windows are the practical answer to why a registered number rings. A purchase opens roughly eighteen months. An inquiry — filling in a form, starting an intake, asking about a price — opens three months, with no purchase required at all.

The other exception is written consent. A seller may call a registered number where it "Can demonstrate that the seller has obtained the express agreement, in writing, of such person to place calls to that person," and the rule specifies what that writing must contain: it "shall clearly evidence such person's authorization that calls made by or on behalf of a specific party may be placed to that person, and shall include the telephone number to which the calls may be placed and the signature of that person." A footnote to the rule states that "signature" includes an electronic or digital form of signature to the extent recognized as valid under applicable federal or state contract law.

Note the ordering in the relationship exception. The company-specific request wins. A person who has told the seller to stop is not callable on the strength of a purchase made within the previous 540 days.

The safe harbor, and the 31-day scrub

Section 310.4(b)(3) sets out what a seller must have in place to avoid liability for a stray call. It is a list of six conditions, all of which describe routine business practice rather than a defense assembled after the fact.

The seller must have "established and implemented written procedures" to comply; must have "trained its personnel, and any entity assisting in its compliance" in those procedures; must have "maintained and recorded a list of telephone numbers the seller or charitable organization may not contact"; must monitor and enforce compliance with the procedures; and the offending call must be "the result of error and not of failure to obtain any information necessary to comply" with an opt-out request.

The fourth condition carries the number worth remembering. The seller must use "a process to prevent telemarketing to any telephone number on any list" of that kind, "employing a version of the 'do-not-call' registry obtained from the Commission no more than thirty-one (31) days prior to the date any call is made," and must maintain records documenting the process. Thirty-one days is the outer age of the list a compliant campaign is dialing against.

Recordkeeping backs this up. Section 310.5(a)(10) requires a record of each person who has asked not to be called, including "the name of the person, the telephone number(s) associated with the request, the seller or charitable organization from which the person does not wish to receive calls, the telemarketer that called the person, the date the person requested that she cease receiving such calls, and the goods or services the seller was offering." Section 310.5(a)(11) separately requires a record of which version of the registry was used, the date it was accessed, the subscription account number, and the campaign it was accessed for.

Section 310.4(b)(2) closes a side door: it is an abusive practice for anyone "to sell, rent, lease, purchase, or use" any of these lists "for any purpose except compliance with the provisions of this part or otherwise to prevent telephone calls to telephone numbers on such lists." A do-not-call list is not a marketing list.

Hours, dead air, and recorded messages

Three further provisions in § 310.4 govern the shape of a call rather than whether it may be placed at all.

Hours are fixed. Section 310.4(c) makes it abusive, "Without the prior consent of a person," for a telemarketer "to engage in outbound telephone calls to a person's residence at any time other than between 8:00 a.m. and 9:00 p.m. local time at the called person's location." The clock that matters is the recipient's, not the caller's.

Silence on answering is regulated with a stopwatch. Section 310.4(b)(1)(iv) makes it abusive to abandon an outbound call, and defines abandonment: a call "is 'abandoned' under this section if a person answers it and the telemarketer does not connect the call to a sales representative within two (2) seconds of the person's completed greeting." A safe harbor at § 310.4(b)(4) permits abandonment of "no more than three (3) percent of all calls answered by a person, measured over the duration of a single calling campaign, if less than 30 days, or separately over each successive 30-day period," and requires the phone to ring "for at least fifteen (15) seconds or four (4) rings before disconnecting an unanswered call."

Prerecorded sales messages require a signed written agreement obtained in advance. Section 310.4(b)(1)(v)(A) requires an express written agreement that the seller "obtained only after a clear and conspicuous disclosure that the purpose of the agreement is to authorize the seller to place prerecorded calls," that the seller "obtained without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service," that evidences willingness to receive such calls from a specific seller, and that includes the person's telephone number and signature.

Where such a call is permitted, the message must carry an opt-out. Within two seconds of the greeting the recording must give the § 310.4(d) disclosures and then tell the person that an "automated interactive voice and/or keypress-activated opt-out mechanism" is available at any time during the message, which must "Automatically add the number called to the seller's entity-specific Do Not Call list," "Once invoked, immediately disconnect the call," and "Be available for use at any time during the message." For a call reaching voicemail, a toll-free number connecting to the same mechanism must be given.

One carve-out belongs in a health context and is stated in the rule itself: the prerecorded-message provision "shall not apply to any outbound telephone call that delivers a prerecorded healthcare message made by, or on behalf of, a covered entity or its business associate, as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103."

Where the boundaries of this rule sit

Two limits are worth stating plainly, because they explain calls that arrive anyway.

The first is scope. As set out in the companion article on what a sales call must disclose, § 310.6 exempts calls a customer initiates that are not the result of a solicitation, and calls a customer initiates in response to an advertisement in a medium other than direct mail — subject in both cases to the rule's upselling carve-out. The do-not-call provisions live in a rule whose reach is defined by that scope.

The second is that this is one of two federal regimes. The Telemarketing Sales Rule is the Federal Trade Commission's, issued under the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. 6101-6108, which the rule prints as its own authority. A separate set of rules issued by the Federal Communications Commission under a different statute also governs telephone solicitations. This page does not describe those rules and does not compare them; it describes the FTC's.

Section 310.6(a) also removes charitable solicitations from the national registry provision specifically: "Solicitations to induce charitable contributions via outbound telephone calls are not covered by § 310.4(b)(1)(iii)(B)." The company-specific list still applies to them.

Finally, the caller-identification rule sits in the same section as the do-not-call provisions. Section 310.4(a)(8) makes it abusive to fail to transmit "the telephone number, and, when made available by the telemarketer's carrier, the name of the telemarketer, to any caller identification service in use by a recipient," while permitting substitution of "the name of the seller" together with "the seller's or charitable organization's customer or donor service telephone number, which is answered during regular business hours." A blocked number on a sales call is not what this rule contemplates.