The Do Not Call rules, and the list most companies forget they have to keep

Ask a business owner about Do Not Call and they will tell you about the national registry. Ask them about their own internal list and you will usually get a pause.

That pause is the expensive part. There are two lists. The federal one is the famous one, and it is the easier of the two to comply with because scrubbing against it can be automated. The other one is yours, you are legally required to keep it, and nobody outside your business can maintain it for you.

The national registry

The registry is run by the Federal Trade Commission under the Telemarketing Sales Rule, with parallel rules from the FCC. If you make telemarketing calls, the mechanics are as follows.

You need access, which comes through a subscription account number. Access to the first five area codes is free; beyond that there are annual fees. You must then check your calling lists against a current version of the registry at least every 31 days. Not once. Not at the start of the campaign. Every 31 days, continuously, for as long as you are calling.

Registrations do not expire, so a number that went on the list in 2004 is still on it.

The list you are supposed to keep yourself

Separately, the FCC’s rules require any entity making telemarketing calls to maintain its own do-not-call list, and the requirements are specific.

You must have a written policy for maintaining it, available on demand. Anyone involved in telemarketing must be trained in its existence and use. When somebody asks not to be called again, you record the request and add the number at the time the request is made, and you honour it within a reasonable time not exceeding thirty days. And the request must be honoured for five years.

Five years. That is the line that catches people, because it outlasts the campaign, the CRM migration, the staff who took the call and often the vendor. A number somebody asked you to stop calling in 2023 is still off limits in 2027, whether or not the system that recorded it still exists.

An internal request also beats every exemption. It does not matter that the person bought from you last month.

The exemptions people lean on too hard

Two exemptions let you call a number that sits on the national registry, and both are narrower than they get treated.

The established business relationship. If somebody made a purchase, rental, lease or financial transaction with you, you may call for eighteen months afterwards. If they made an inquiry or submitted an application, you get three months. Note the asymmetry — an enquiry is not a purchase, and three months is not eighteen.

Express written agreement. A signed writing, which may be electronic, in which the person agrees to receive calls from you specifically and which includes the number.

Both exemptions die the moment the person asks you to stop. The internal list overrides them.

The safe harbour, and what it costs to earn

The rules do allow for honest mistakes, but only if you can show the machinery was in place before the mistake happened. That means written compliance procedures, personnel trained on them, monitoring and enforcement of them, a record of your own do-not-call requests, and evidence that you had accessed the registry within the last 31 days.

You cannot assemble that after a complaint arrives. It is either documented in advance or it is not a defence.

What it costs to be wrong

Two separate exposures, and they stack.

The FTC can seek civil penalties per violation, currently above fifty thousand dollars per call and adjusted for inflation each year. Every call is its own violation.

Then there is the private route. Under the TCPA, someone who receives more than one call in a twelve-month period at a number on the registry can sue for $500 per call, or $1,500 where the conduct was wilful. That is the mechanism behind most of the class actions, and it does not require the FTC to be involved at all.

Timing counts too

Federally, no telemarketing calls to residential subscribers before 8 a.m. or after 9 p.m., local time where the person is — not where you are, and not what the area code suggests. A number in a 203 area code may be answered in Phoenix.

Several states run tighter windows than the federal one and some cap calls per day. If you call across state lines, the strictest applicable rule is the one that matters.

What to ask, if somebody dials on your behalf

Ask whether they hold their own subscription account number or rely on yours, and to see the last scrub date. Ask how often the scrub actually runs, and whether it runs against the list before every campaign or on a schedule. Ask how a do-not-call request made verbally on a live call gets from the agent’s mouth into the suppression list, and how long that takes. Ask how they establish the called party’s local time. Ask to see the written compliance policy, because they are supposed to have one and to produce it on demand.

And ask what happens to your suppression list when the contract ends. You are the one who has to honour those requests for five years, so you need the file.

Where we sit

The bulk of our work is inbound, where none of this applies because the customer is the one calling. For the outbound work we do, we call people who have asked to hear from us, a do-not-call request is entered while the call is still live rather than at the end of the day, and the suppression list is yours — you get it on request and you get it when we part company.

We would rather have this conversation before you hire anybody, including us.

This is general information about how these rules work, not legal advice, and it is not a substitute for a lawyer who knows your business and the states you operate in.