August 2011: State Manual Dialing Rules: A Handy Guide
by Joseph Sanscrainte, an attorney specializing in telemarketing law.
I and my friends at Contact Center Compliance have been fielding many questions lately with regard to what states, if any, have rules in place that provide for restrictions above and beyond the FCC's ban on using predictive dialers to call cell phones. That is, the FCC prohibits dialing cell phones making use of an "automated telephone dialing system" (a term the FCC has ruled applies to predictive dialers) - and many a telemarketer has opted to maneuver around this prohibition by dialing such calls manually. But what happens if a state has a rule in place that prohibits making telemarketing calls to cell phones, even if dialed manually?
There are, in fact, five states that have rules that prohibit even manual dialing of cell phone numbers in the context of telemarketing campaigns - but it seems that no matter how many times I present this fact, it's met with more than a dash of skepticism. (More than a dash, but slightly less than a modicum).
To wit, the five states are: Arizona, Louisiana, New Jersey, Texas and Wyoming. Let's look at each state in turn, shall we?
Title 44, Chapter 9, Article 6 of the Arizona Revised Statutes contains many elements of Arizona's regulation of the telemarketing industry. If we zero in on § 44-1278, we discover the following:
It is an unlawful practice . . . for any seller or solicitor or anyone acting on their behalf who conducts a telephone solicitation in this state to do any of the following: . . . Intentionally make or cause to be made any unsolicited telephone sales call to any mobile or telephone paging device.
The key thing here is - it makes no difference to our legislative friends in Arizona (or in any of the states the follow) the manner in which the call is made - all that matters is that unsolicited telephone sales calls to cell phones are prohibited.
Similarly, Title 56, Chapter 8 of the New Jersey Statutes covers "Frauds, etc. in Sales or Advertisements or Merchandise." § 56:8-130 of this chapter contains the following:
No telemarketer shall make or cause to be made any telemarketing sales call to a commercial mobile service device of any customer . . .
Turning our attention now to Texas statutes, we find, in Title 10, Chapter 305, § 305.001, the following prohibition:
A person may not make a telephone call or use an automatic dial announcing device to make a telephone call for the purpose of making a sale if the person making the call or using the device knows or should have known that the called number is a mobile telephone for which the called person will be charged for that specific call
Likewise, under Title 40, Chapter 12, Article 3, § 40-12-302 of the Wyoming Statutes, we find:
No telephone solicitor or merchant shall willfully make or cause to be made any unsolicited telephonic sales call to any unpublished cellular telephone number.
The Louisiana rule is a little more difficult to find, but it's there nonetheless, in the Lousiana Public Service Commission's Do Not Call Program General Order:
No call will be placed to . . . any telephone number assigned to a paging service, cellular or mobile telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless the call is made pursuant to the recipient's prior express consent.
(I of course HATE to say "I told you so," but, well . . .)
The bottom line here is - pay attention to the above prohibitions! If you're doing the manual dialing workaround, just make sure that you incorporate these rules into your calling campaign. (And make sure to look for this information, and other helpful guidance on state by state manual dialing rules, in Contact Center Compliance's Compliance Guide in the near future!)
Questions? Email Joe at firstname.lastname@example.org