As our readers know, having a Do Not Call (“DNC”) policy in place can mitigate against potentially significant Telephone Consumer Protection Act (“TCPA”) liability. Not only is a DNC policy recommended, but it is required under the TCPA’s implementing regulations. In this piece, we discuss what is and is not required under the TCPA and its corresponding regulations, and the associated benefits of having DNC policies and procedures in place.
What Is A DNC Policy?
Technically, the TCPA statute itself does not require the implementation of a DNC policy. However, telemarketers sued for alleged TCPA violations may escape liability if they can demonstrate that they have “established and implemented reasonable practices and procedures . . .” designed to prevent the delivery of telephone solicitations to telephone numbers on the DNC registry or that otherwise violate the TCPA. Please note, however, that this DNC policy-related affirmative defense does not extend to telephone calls/messages delivered using an automatic telephone dialing system or calls/messages containing an artificial or prerecorded voice. In addition, complying with the TCPA goes beyond the statute itself.
For telemarketers, the TCPA’s implementing regulations do actually require maintaining internal DNC policies (“Internal DNC Policy”). Under these regulations, telemarketers, among other things, must: (1) have a written policy for maintaining an Internal DNC list; (2) train personnel engaged in telemarketing about the DNC policy and list; and (3) document and honor DNC requests within a reasonable period of time from the date the request is received, which may not exceed 10 business days. Under these regulations, telemarketers may be shielded from TCPA DNC regulation liability if they can demonstrate that they: (i) established and implemented an Internal DNC Policy, (ii) trained their employees to comply with the Internal DNC Policy; (iii) maintained and recorded DNC requests; and (iv) employed a process for accessing the DNC registry and preventing the placement of calls to telephone numbers on it.
Yes, You Need A DNC Policy!
Telemarketing without a DNC policy is a dangerous proposition and certainly is not recommended. As stated above, having a DNC policy in place provides telemarketers with an affirmative defense to lawsuits that may have significant TCPA liability. Implementing and maintaining a DNC policy is just one piece of what comprises telemarketing best practices.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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