December 2009 : FTC Reports on National DNC List
by Joseph Sanscrainte, an attorney specializing in telemarketing law.
On December 8th, the FTC issued a National Do Not Call Registry Data Book for 2009. The FTC is of course tasked with not only managing and enforcing the list, but also generating statistics with regard to how exactly it is being used, accessed, and the number of complaints being generated associated with those consumers whose numbers are on it. This information is submitted to Congress for its consideration, as well as used by the FTC for future deliberations related to the national DNC registry.
There are a few eye-popping numbers in this report, the first one being the number of registrations on the national DNC list. As of the date of this report, the FTC reports that there are 191.5 million numbers on the national registry (regrettably, this number is not broken down into landline vs. wireless categories.) The growth of the list does not appear to be slowing down from year to year - that is, from 2006 to 2007, an additional 13 million numbers were registered; the following year, this number grew by 27 million. The 2008 to 2009 timeframe showed a growth of over 18 million numbers (about an 11% increase).
The FTC does not provide statistics related to percentages of landline/wireline numbers overall that are now on the national DNC registry. This may be due to the fact that generating "hard" numbers in this regard can be difficult (CTIA reports 276.6 million wireless subscribers in the U.S. as of June of 2009; and reports regarding the number of landline numbers in the U.S. normally hovers around 200 million.) From the industry's standpoint, such statistics would of course prove extremely helpful. Perhaps in an attempt to at least address the "percentage" question, the FTC includes information comparing active DNC registry registrations with overall population on a state by state basis - and generates a statistic called "Active Registrations per 100,000 Population." All but four states have an active registrations rate over 50,000, with 35 states coming in over 60,000, and 11 states over 70,000.
As can be expected, the number of complaints being filed with the FTC has grown along with the national registry. In the last FTC fiscal year (September 30, 2008 to September 30, 2009), the FTC received 1.8 million complaints (these are "unverified" - that is, the FTC received this many complaints from consumers, but a certain percentage are of the "false positive" variety where a consumer complains when in fact the call was legal.) Some comfort for the industry can be found in the fact that although the registry grew at an 11% clip in the last fiscal year, the number of complaints grew by only 2%. The FTC has in its possession, however, a collection of over 7.2 million DNC complaints that have been registered by consumers from the date of the inception of the DNC registry. (Despite repeated requests from various industry representatives, this information is closely guarded by the FTC and apparently will never be released.) In addition, many of the national DNC registry complaints filed with the FTC also include "in-house" DNC and pre-recorded calling violations as well, so the number of violations alleged across all of these complaints is much higher than just the number of complaints themselves.
Surprisingly, there has been a precipitous drop in the number of entities accessing and/or paying for the national DNC registry. In FY 2009, there were 3,924 entities that paid at least something for the list; 40,406 that received the list making use of the 5 or fewer area codes exemption to paying; and 1,002 entities that access the list claiming complete exemption. Comparing these numbers to the first year the national registry was launched may generate some concern for the FTC: there was a 50% drop in the number of entities actually paying for the list; a 37% drop in the number of entities seeking 5 or fewer area codes; and a 32% drop in the number of entities that accessed the list claiming an exemption (i.e., non-profit status, EBR). In all, over a five year period during which the national registry has been in operation, there are now over 28,000 fewer entities (an overall drop of 38%) taking part in the program. A fair question the FTC may be asking is: what happened to all of these entities? There was a time when the FTC simply dismissed concerns raised by the industry that the national DNC list would result in many companies going out of business. Perhaps these figures indicate that the industry's fears were justified?
In the final analysis, the FTC report shows an extremely active federal-level DNC program that is still generating consumer interest (i.e., new registrations) and, correspondingly, still generating complaints. In fact, the number of DNC complaints registered with the FTC has risen each year the registry has been in existence. Although some in the industry may perceive a slow-down in DNC-related enforcement (perhaps to make room for pre-recorded calling actions), it's by no means an overstatement to say that the FTC's "bread and butter" consumer protection issue has been, and will continue to be, DNC for the foreseeable future. With the public pronouncements of David Vladeck, the new Director of the FTC's Bureau of Consumer Protection, expect to see a continuous and vigorous application of the FTC's consumer protection duties.