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December 2011: Internal Do Not Call

by Joseph Sanscrainte, an attorney specializing in telemarketing law.

Since the time I first began practicing in the field of telemarketing law in the late 1920's, one recurring question that I've received has been "What exactly constitutes an internal do not call request?" This seems like a pretty easy question, but in fact, there is plenty of room for interpretation. The outcome of this interpretation, however, has turned out to be pretty important!

I suspect that the main reason people ask me this question is that they want me to say "There is ONE, and ONLY ONE way that a consumer can request to be placed on your internal DNC list - and that is by using the magic incantation 'Please place me on your internal DNC list.'" This way, if a consumer says something like "please don't call me again" or "I don't take solicitation calls at home," the entity making the call could assume that the person was only making vague pronouncements regarding his/her calling preferences at that particular moment, and was NOT asserting his right to be placed on an internal DNC list.

Although for years, I've preached that a broad interpretation of consumer's requests was not only advisable, but required under FTC/FCC rules, I was never able to point to a pronouncement from either of these entities to back up my recommendation. As of December 16th, however, all that has changed. The FTC announced on December 16th that it was fining a telemarketer $500,000.00 for, among other things, interfering with a consumer's right to be placed on its internal DNC list. Specifically, the entity in question had a training manual that specifically instructed its callers that, absent additional information, a consumer who says only "Don't call again," "Don't call me back," or "I do not accept solicitation calls," should not be placed on the internal DNC list of the seller on whose behalf the call was being made. Of course, reading between the lines, the "additional information" had to be something along the lines of "please place my number on your internal DNC list," or words to that effect.

Bottom line here? I was right, and isn't that the most important thing? Perhaps more to the point, here's what I recommend to my clients to put into their internal DNC policy regarding this question:

How do I know if a consumer is making a Do Not Call request?

A consumer may, during the course of any phone call with a Company employee, raise many different objections and make many different requests related to the call itself as well as the good or service being offered. Although all objections must be handled in a professional manner, not all objections and/or requests rise to the level of an internal DNC request. Generally, any statement by a consumer requesting that no further calls be made by Company to that consumer is to be treated as an internal DNC request. There is no specific language that is required - no "magic words" that a consumer has to say in order to be placed on Company's internal list.

For example, the following statements are to be treated as internal DNC requests:

  • "Please don't call me again."
  • "I really wish you wouldn't call here anymore."
  • "Please put me on your do not call list."

The following are NOT to be treated as internal DNC requests:

  • "I'm not interested."
  • "I just don't want to talk to you right now."
  • (Note also that a consumer hang-up does not constitute an internal DNC request, and no Company employee is under any obligation to proactively suggest to a consumer that the consumer's number be added to Company's internal DNC list. The request to be placed on the internal DNC list should originate, therefore, with the consumer.)

Consider the above my holiday gift to any compliance officer looking for some language to plug into his company's internal DNC policy. Happy Holidays and happy New Year to all!

Joseph Sanscrainte

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