Telemarketing and the Telephone Consumer Protection Act (TCPA)
EPIC maintains two other pages on telemarketing, a page that addresses preemption of state telemarketing law, and the archived history of the litigation challenging the Do-Not-Call Telemarketing Registry. We also maintain a page on the sale of telephone records.
- Senate Examines "Do Not Call" Law: The Senate Commerce Committee held a hearing yesterday on the Telephone Consumer Protection Act. The "TCPA" bars telemarketers and robocallers from contacting consumers by phone or fax without prior express consent. In January, EPIC filed an amicus brief to provide greater TCPA protections for consumers. EPIC said that widespread use of cellphones “has amplified the nuisance and privacy invasion caused by unwanted calls and text messages.” EPIC has testified before Congress about the TCPA and submitted many comments concerning the implementation of the consumer privacy law. (May. 19, 2016)
- EPIC and Consumer Privacy Groups File Brief Supporting FCC in Telephone Privacy Case: EPIC and six consumer privacy organizations have filed a "friend-of-the-court" brief in support of the Federal Communications Commission in ACA International v. FCC. The case was brought against the FCC by industry groups charged with violating the Telephone Consumer Protection Act. The FCC had made clear that companies cannot make automated or prerecorded calls to consumers without their consent. EPIC argued in its brief that widespread adoption of cell phones "has amplified the nuisance and privacy invasion caused by unwanted calls and text messages." EPIC and the consumer organizations urged the federal court to uphold the FCC order safeguarding consumers. (Jan. 25, 2016) More top news »
Telemarketing is a practice where a business initiates a phone call in order to propose a commercial transaction. Millions of telemarketing calls are made to individuals every year. Telemarketing is highly unpopular among Americans; public opinion on telemarketing routinely shows that the vast majority of Americans object to unsolicited sales calls.
Business to consumer telemarketing takes place in two different ways: first, inbound telemarketing is the business use of a telephone to accept consumer calls regarding a product. Inbound telemarketing usually occurs where a consumer responds to direct mail or a television advertisement. Second, outbound telemarketing is the practice of placing calls to consumers for sales purposes. Outbound telemarketing may take place in a "boiler room," a makeshift office that houses persons on an hourly rate to make sales calls. These employees may not be familiar with federal and state telemarketing rules, as there is a 60-70% turnover rate in the industry.
Telemarketing is popular because it is an inexpensive way to market products. Costs are low for the telemarketer, but high on the individual who may be annoyed, inconvenienced, or even psychologically harmed by numerous hang-up calls during the day. In weighing the costs of phone sales, telemarketers and telemarketing industry groups do not consider the costs that are imposed on telephone subscribers, such as the expense incurred from lost time, the monthly cost of caller ID or privacy manager services, the purchase of answering machines to screen calls, and the monthly cost of maintaining an unlisted phone number.
Numerous companies offer advice to individuals who wish to start their own telemarketing venture. For instance, Businesstown.comadvises sales callers that they should attempt to gain individuals' trust before reading from the telemarketing script:
"When you are making outbound calls, you must attract the customer's interest in the first ten to fifteen seconds of the phone call. Engage the customer in a friendly conversation so that you can build trust and establish polite inquiry as to the person's state of mind. Open with something casual like "How are you today?" Do not attempt to launch into the sales pitch until you get the customer talking and feeling positive about your intentions."
"...As early as possible, you want to smoothly qualify this individual as a prospect without causing him or her to hang up. You must remember that the prospect is thinking "I don't want this" and your job is to reverse this thinking."
Individuals are at a disadvantage when trying to eliminate or reduce the number of telemarketing calls received. There are many call centers in the United States that make tens of thousands of calls per day.
In order to reduce the number of telemarketing calls receive, we suggest these tactics:
- When possible, minimize the amount of personal data that you share with the government and businesses. For instance, if a retail store requests your phone number, do not share it with the store unless it is necessary to complete a transaction. Additionally, do not place your phone number on product surveys or warranty cards. Surveys and warranty cards are used to profileand target individuals for more advertising.
- Opt-out of telemarketing, credit reporting agency, and CPNI databases.
- The Direct Marketing Association offers an opt-out system called the " Telephone Preference Service." You can opt-out online via the TPS for a $5 fee, or send the DMA a letter to opt out at no charge.
- Several phone companies have announced that they will sell Customer Proprietary Network Information (CPNI) unless individuals opt-out. CPNI includes detailed account information about individuals who have a telephone line. To learn about CPNI and how to opt-out, see the EPIC CPNI Page.
- A 1999 federal law, the Gramm-Leach-Bliley Act, allows individuals to opt-out of information sharing done by banks, insurance companies, and brokerage houses. Be sure to call your financial institutions and request to opt-out from information sharing. Chances are, your bank or credit card company either sells your personal information to telemarketers or operates a telemarketing business with your personal information through an affiliate. You can learn more about Gramm-Leach-Bliley and financial privacy at Privacy Rights Now!.
- Tell telemarketers to put you on the "DO-NOT-CALL list." to assist individuals communicate the correct message. You'll be placed on a "skip" list. That is, the telemarketer will likely keep your phone number but program their equipment to not call your phone number again. Even if you do request this, if the caller is from a data center, they may be able to call you again on behalf of a different client. To avoid this, be sure to say that you do not want any calls from affiliated businesses as well.
- Under the law, you have the legal right to request the telemarketer's do not call policy. Consider asking telemarketers who call you to send the list to you by certified mail. If they fail to do so, you may have a right of action against them for $500 minimum damages.
- File a complaintwith the Federal Communications Commission (FCC) if you believe that you are the victim of illegal telemarketing.
- Your state may provide protections that are broader than federal law. For a summary of state protections, see "State Action to Address Telemarketing" above.
- Notify your attorney general if you believe that you are the victim of illegal telemarketing. For a listing of all attorney generals, see the National Association of Attorneys General Website.
Telemarketing is governed primarily by two statutes: first, the Telephone Consumer Protection Act of 1991(TCPA), 47 U.S.C. § 227. The Federal Communications Commission (FCC) has authority to collect complaints and institute enforcement actions against violators of the TCPA.
The TCPA's prohibitions and regulations include:
- A prohibition on the use of an automatic dialing system or prerecorded voice to make sales calls to emergency phone lines, medical offices, hospital rooms, homes for the elderly, paging services, or cellular phones. 47 U.S.C. § 227 (b)(1)(A)(i)-(iii).
- A prohibition on the use of artificial or prerecorded voice telemarketing, except where there is an emergency or the call recipient gives prior consent. 47 U.S.C. § 227 (b)(1)(B).
- A prohibition on the transmission of unsolicited commercial facsimile messages ("junk faxes"). 47 U.S.C. § 227 (b)(1)(C).
- A requirement that all commercial facsimile messages include accurate date, time, and sending telephone number information in the margin of the message. 47 U.S.C. § 227 (d)(1)(B).
- The creation of a private right of action allowing individuals, businesses, and state officials to bring a case in court for minimum damages of $500 and up to $1500 in damages where the telemarketer "knowingly" or "willfully" violated the TCPA. 47 U.S.C. § 227 (b)(3), (f)(1).
- The opportunity for the Federal Communications Commission to issue regulations to improve protections against telemarketing, including the ability to create a national DNC list. 47 U.S.C. § 227 (c). Consumers can register for the list here.
- The opportunity for states to enact legislation to increase protections against the sending of junk faxes, the use of autodialing systems, the use of prerecorded and artificial voice systems, and the making of telephone solicitations. 47 U.S.C. § 227 (e).
Second, the Telemarketing and Consumer Fraud Abuse Prevention Act, addresses specific aspects of telemarketing, and empowers the Federal Trade Commission (FTC) to issue the Telemarketing Sales Rule(TSR), 16 C.F.R. Part 310. Currently, the TSR restrictions on telemarketers include:
- Telemarketers must make certain disclosures at the outset of the sales call. These disclosures include the name of the seller and that the call is being made for sales purposes. In case of a purchase, the telemarketer must disclose the total charge of the sale, whether there are restrictions on the sale, and whether there is a refund policy.
- Sweepstakes telemarketing involve special disclosures as well. The telemarketer must inform the call recipient that no purchase is necessary in order to participate, the odds for winning, and whether there is a cost associated with participation.
- Calls cannot be initiated before 8 AM or after 9 PM in the recipient's timezone.
- Telemarketers must obtain "express verifiable authorization" before engaging in certain transactions, such as making a draft directly from a bank account.
- Telemarketers must maintain records, including records of advertisements, sales records, and employee records.
It is important to note that the TSR does not apply to certain forms of telemarketing, including most business-to-business sales calls, telemarketing by banks, federal financial institutions, common carriers (phone companies and airlines), insurance companies, and non-profit organizations.
Two other rules provide additional protections to consumers: the Mail and Telephone Order Rulegoverns representations regarding the delivery of products purchased through telemarketing. The Telephone Disclosure and Dispute Resolution Act(1992) required federal agencies to develop the 900 Number Rule. The 900 Number rule governs disclosures and procedures associated with pay-per-call services. Both of these rules primarily address consumer protection issues outside the scope of privacy protection.
Unsolicited Commercial Faxes or "Junk Faxes"
The TCPA of 1991 specifically prohibited the sending of unsolicited chimerical fax messages ("junk faxes") to someone without first obtaining their consent. Additionally, all commercial fax messages sent must include accurate information on the time and date they were sent, and the phone number of the sending fax machine.
Unsolicited junk faxes are illegal because they are "cost-shifted" advertising messages. That is, commercial entities can send thousands of solicitations to individuals, and the recipient bears the burden of paying for the fax toner and paper.
The California Public Utilities Commission issued a report in 1991 showing that junk faxes cost California consumers $17 million a year. The Commission has issued a study to update this figure.
In other states, individuals have joined class action lawsuits to limit junk faxes. In 1995, an Augusta, Georgia man brought a large class action against the "Hooters" restaurant chain. In 2001, a Federal Court awarded the class a $12 million verdict against Hooters.
The Federal Communications Commission also pursues junk faxers. In 2001, the FCC fined 21st Century Fax $1 million for sending unsolicited fax messages.
Junk faxes are often sent on behalf of a company by a blast fax centers, such as Fax.com. Fax.com and other junk faxers have been cited many times by the FCC.
Despite these different approaches to enforcement, junk faxes continue to be sent. Junk fax businesses openly sell fax numbers, software, and complete junk faxing packages on the Internet. For instance, Dialcentric markets fax broadcasting systems via E-mail and web sites:
"THE COMPLETE FAX MARKETING SYSTEM!
1 Million Fax Leads & Fax Broadcasting Software Only $149!
Fax broadcasting is the hot new way to market your product or service. You can not beat fax broadcasting for cost effectiveness and reliability. Get your information out to the masses for the lowest price.
People are 4 times more likely to read a fax than junk mail!
List includes fax numbers from every area code in the United States.
List includes business name, fax number, phone number, SIC code, & business description.
All fax numbers were verified 90 days ago.
Fax lists are constantly updated and cleaned.
The list comes on a CD and all fax numbers are fully exportable into most software."
- Junkfaxes.org. Junkfaxes is an excellent resource for those interested in reducing unsolicited commercial fax messages. This web site has information on the TCPA, a listserver on junk faxes, a list of state laws addressing junk faxes, and news on junk fax prosecutions.
- TCPALaw.com. This site is an excellent resource for individuals wishing to learn more about litigating under the TCPA.
- Junkfax.org. A site dedicated to "helping stop junk faxes"
- JunkFAX-L. This listserv is a resource for those who litigate under the TCPA.
- Destination Ventures, Ltd. v. Federal Communications Comm'n, 46 F.3d 54, 55 (9th Cir. 1995).
- Texas v. American Blastfax, Inc., 121 F. Supp. 2d 1085 (W.D. Tex. 2000).
- Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162, 1167 (S.D. Ind. 1997).
- State of Missouri v. American Blast(PDF), ___ F.3d. ___, No. 02-2705, Mar. 21, 2003.
- Missouri ex rel. Nixon v. American Blast Fax, Inc., ___ F. Supp. 2d ____, 2002 U.S. Dist. LEXIS 5707, 2002 WL 508330 (E.D. Mo. Mar. 13, 2002).
- California Senator Debra Bowen's Junk Fax Survey. Individuals who receive junk faxes in California can participate in this survey.
- FCC Complaint Page.
- FCC Unsolicited Fax Enforcement Actions Page.
- Lawsuits Seek $2.2 Trillion Over Junk Faxes, New York Times (Reuters), August 22, 2002.
- Lieff Cabraser Announces $2.2 Trillion Class Action Lawsuit Filed to Stop Junk Faxes, Plaintiff Press Release, August 22, 2002.
- Hooters' Fax Overload: Faxed Ads Cost Hooters 12 Million, ABC News, July 25, 2001.
- Dispute Over Ads Draws Wide Scrutiny After Award, New York Times, July 22, 2001 (registration required).
- In the Matter of 21st Century Fax, Junkfaxes (FCC), January 9, 2001
- Dialcentric $149 Package Deal: 1.5 Million Fax Leads and Symantec WinFax Software.
Telemarketing and Fraud
Thousands of telemarketing sales calls are made to defraud consumers. Unscrupulous telemarketers even maintain "mooch" lists, databases of people who are most likely to be victimized by fraudulent sales calls.
State Attorneys General have initiated a number of cases to address fraudulent telemarketing. In 1999, Minnesota Attorney General Mike Hatch brought suit against US Bancorp for selling customer account information to MemberWorks, a telemarketing company. The Attorney General alleged that in addition to selling customer contact information, US Bancorp sold credit card numbers, checking account numbers, Social Security numbers, and account balance information. US Bancorp received $4 million and 22% commission on all sales that were completed using the information. US Bancorp settled the case, agreed to pay a $3 million fine, and agreed to end the practice of selling customer information to telemarketers.
Other prominent banks have sold individuals' personal information to telemarketers as well. Capital One, Chase Manhattan, Citibank, First U.S.A., Fleet Mortgage, GE Capital, and MBNA America all have provided their customers' personal and confidential information to fraudulent telemarketers. The financial institutions provided the telemarketers with the names, telephone numbers and other information about their customers. They also gave them the ability to charge customers' accounts without having to ask consumers to provide an account number. In one case, during a thirteen month period a national bank processed 95,573 cancellations of membership clubs and other products that were billed by preacquired account telemarketers without customers' authorization.
In addition to selling fraudulent products and services, "slamming" is a practice often conducted through telemarketing. Slamming is the practice of switching an individual's long distance company without consent.
- The Alliance Against Fraud in Telemarketing & Electronic Commerce, National Consumers League.
- FTC Telemarketing Fraud Web Page.
- Telemarketing Fraud: What You Need to Know, FTC Web Page.
- Telemarketing Fraud, AARP web page.
- Complaint in US Bancorp, Minnesota Attorney General.
- Settlement Agreement in US Bancorp, Minnesota Attorney General.
- Telemarketer reveals tricks of trade, MSNBC, April 21, 2003.
- Chase Agrees To Stop Selling Personal Information, Newsbytes, January 26, 2000.
- Work-At-Home Telemarketers Settle Fraud Charges, Newsbytes, April 12, 2001.
- FTC Nixes Telemarketers Offering Y2K Credit Card Insurance, Newsbytes, June 20, 2002.
- MCI Agrees To, Pay $3.5 Million In FCC Slamming Case, Newsbytes, June 6, 2000.
- Day-trading Firms Forced To Stop False Advertising, Newsbytes, May 1, 2000.
- US West Declares Victory Against Slammers, Newsbytes, April 28, 2000.
- Bank Privacy Sold Out, Multinational Monitor, June 1999.
- Your Money Is Safer Than Your Privacy, Washington Post, July 22, 1999.
- AG Announces Settlement with Telemarketing Firm, Washington State AG Office, December 5, 1996.
- Patrick E. Michela, "You May Have Already Won . . . " Telemarketing Fraud and the Need for a Federal Legislative Solution, 21 Pepperdine Law Review 553 (1994).
Telemarketers use special telephone tools to maximize the number of outgoing calls that the company can make. One of the more obnoxious tools is the "predictive dialer." Predictive dialers make many calls at the same time, and connect the telemarketer to the first person who answers the phone. Call recipients who pick up the phone after the first recipient hear "dead air," or a telephone call with no one on the other end, and are disconnected. In the telemarketing industry, the call recipients who hear dead air are termed "abandoned calls."
Some predictive dialers attempt to delay the recipient from hanging up the phone by sending a ring signal to the phone. Many people will remain on the line after hearing the ringing tone, increasing the likelihood that the next available telemarketer will capture the "abandoned call." If the predictive dialer calls a busy line or a line with an answering machine, it automatically schedules the line to be called again later.
The telemarketing industry is aware that predictive dialers cause frustration and the 2002 proposed changes to the TSR would prohibit the use of predictive dialers where they produce "dead air."
- Consumer Telemarketing 2000: Prepare for a Hostile Environment, Wetzler (DMNews.com).
- Predictive Dialing by Marketel. "The Mk.II immediately connects calls to telemarketers so that it is completely transparent to your customers. They will never know that they have been called by a predictive dialer!"
- Teletechplus Autodialer. Teletech's autodialer can randomly dial phone numbers in order to contact persons who are not in telemarketing databases. Additionally, when the system makes a call, "it can either leave an answering machine message or interact with a live caller. The system can obtain responses from people by recording their voice answers, asking them to press touch-tone keys to respond to the questions, or by transferring them to a live operator. The system has the ability to make up to 1,000 per line per day, and you will have the ability to schedule your autodialing campaigns days or weeks in advance."
Phone Companies Profiteer from Telemarketing Sales and Avoidance of Telemarketing
Phone companies sell both the tools that enable telemarketing and products to help individuals avoid sales calls. To enable telemarketing, phone companies sell dialing equipment, the lines and infrastructure that enable calling multiple persons at one time, and lists of new customers. To help individuals avoid telemarketing, the phone companies sell unlisted numbers, caller ID, and systems such as Privacy Manager.
- Ameritech Predictive Dialers. "...for automating outbound telemarketing campaigns. Predictive Dialer systems place calls specified by your computer database, screen non-productive calls such as busy signals, answering machines and no answers, and connect your agents with live respondents. Your business is able to contact more customers and increase revenues, while keeping call volume and work activity at a constant, productive level."
- Qwest Residential "New Telephone Hookups" Marketing List: "Our New Telephone Hookups list provides detailed information about new residents within 24 hours of their arrival so you can reach them first. No one gives you more timely or more accurate information. In fact, we guarantee 95% deliverability so you don't waste your valuable marketing budget telemarketing or mailing to dead-end leads. With coverage of Qwest's 14-state region, you can pinpoint prospects in your target audience who are new to the neighborhood and looking for reliable products and services just like yours. Make sure you win their business."
State Action to Address Telemarketing
In 1991, with the passage of the Telephone Consumer Protection Act, the Federal Communications Commission was directed by Congress to create a national do-not-call (DNC) database for persons who wished to opt-out of telemarketing calls. The FCC failed to create this database. Because of federal inaction on consumer protection in telemarketing and other areas, many states have taken action to address citizen's desires to avoid sales calls.
States have addressed telemarketing in many ways. Some states have passed DNC lists. A DNC list is a database of individuals who wish not to be contacted by telemarketers. Some states have allowed individuals to enroll in DNC lists over the Internet. Initiating a telemarketing call to a person on the DNC list can result in fines. It is important to note that many states have exemptions to the DNC list for certain types of telemarketing. These exemptions may include newspaper telemarketing, public opinion poll calling, calling on behalf of an elected politician or candidate, telemarketing where there was a prior business relationship with the call recipient, and telemarketing on behalf of charitable organizations.
Some states have enacted "no rebuttal statutes." These laws require the telemarketer to end the call when the consumer indicates that she is not interest in the product being sold.
In a similar vein, some states have enacted "permission to continue laws." These statutes require the telemarketer to gain the consumer's permission or interest in the product before continuing the sales pitch.
Telemarketer application, registration, and bonding is required in many states. However, many states exclude well-established businesses from these requirements.
Some states have restricted the hours in which a telemarketer can initiate a sales call beyond the times specified in the TSR. The TSR limits sales calls to the hours of 8 AM to 9 PM in the recipient's time zone.
In order to protect consumers, over half the states require certain telemarketing transactions to be memorialized in a written contract.
Last, some states have supplemented federal law with stronger protections against junk faxes.
- Alabama Public Service Commission. Alabama provides its citizens with a DNC list and a requirement for a written sales contract for certain telemarketing transactions. Additionally, telemarketers cannot make sales calls on Sundays or holidays.
- Alaska Consumer Protection Unit. Alaska provides its citizens with a DNC list, a requirement that telemarketers register before telemarketing in the state, a requirement for a written sales contract for all telemarketing transactions, and the requirement that consumers be able to return goods purchased through telemarketing for a certain period of time. These rights cannot be waived through contract.
- Arizona Attorney General. Arizona requires telemarketers to register with state authorities. Additionally, a written sales contract is required for some transactions.
- Arkansas Attorney General. Arkansas provides its citizens with a DNC list, prohibits telemarketers from blocking caller ID, has a no rebuttal law, and requires a written sales contract for certain telemarketing transactions.
- California Attorney General. California's DNC list became effective in 2003. Additionally, a written sales contract is required for some transactions.
- Colorado Public Utilities Commission. Colorado's DNC list will become effective in Summer 2002.
- Connecticut Department of Consumer Protection. Connecticut provides its citizens with a DNC list, a prohibition on blocking caller ID, a prohibition on telemarketers reselling contact information, and a requirement of a written sales contract for certain telemarketing transactions.
- Delaware Attorney General. Delaware requires a written sales contract for certain telemarketing transactions and registration for telemarketers.
- District of Columbia.
- Florida Division of Consumer Services. Florida provides its citizens with a DNC list, requires telemarketers to register with the state, and requires a written sales contract for certain telemarketing transactions.
- Georgia Public Service Commission. Georgia provides its citizens with a DNC list. Additionally, telemarketers must reveal the name and telephone of the business on whose behalf the call is being made before the solicitation begins.
- Idaho Attorney General. Idaho provides its citizens with a DNC list, a no rebuttal law, and requires a written sales contract for certain telemarketing transactions.
- Illinois Attorney General. Illinois provides its citizens with a DNC list, a no rebuttal law, a permission to continue law, and requires a written contract for certain telemarketing transactions,
- Indiana Attorney General. Indiana provides its citizens with a free DNC list with penalties ranging from $10,000 to $15,000.
- Kansas Attorney General. Kansas has a no rebuttal law, limits on the use of autodialers, and a requirement of a written contract for certain transactions.
- Kentucky Attorney General. Kentucky provides its citizens with a DNC list, however it is riddled with exemptions. For instance, publicly traded corporations, investment brokers, insurers, real estate brokers, and magazine, cable TV and newspaper providers are exempt. Additionally, Kentucky has a no rebuttal law, a permission to continue law, and a written sales contract requirement for certain telemarketing transactions,
- Louisiana Public Service Commission. Louisiana's DNC program will begin in April 2002. The program requires telemarketers operating in the state to post a $20,000 bond, and has a $1,500 penalty for violation. Additionally, the state requires a written sales contract for certain telemarketing transactions.
- Maine Secretary of State. Maine has instituted a DNC list by requiring telemarketers to use the Direct Marketing Association's DNC list.
- Maryland Attorney General. Maryland requires a written sales contract for certain telemarketing transactions.
- Massachusetts Attorney General. Massachusetts requires a written sales contract for certain telemarketing transactions.
- Michigan Attorney General. Michigan requires a written sales contract for certain telemarketing transactions.
- Minnesota Attorney General. Minnesota requires a written sales contract for certain telemarketing transactions. Additionally, sales calls for funeral or burial services are prohibited in some circumstances.
- Mississippi Public Service Commission. Mississippi has a no rebuttal law and a written sales contract requirement for certain transactions,
- Missouri Attorney General. Missouri provides its citizens with a DNC list.
- Montana Department of Administration. Montana requires a written sales contract for certain telemarketing transactions.
- New Hampshire Attorney General. New Hampshire requires telemarketers to provide a customer service phone number for complaints when making sales calls.
- New York State Do Not Call Telemarketing Registry. New York provides its citizens with a free DNC list.
- Nevada Attorney General. Nevada requires a written sales contract for certain telemarketing transactions.
- New Mexico Attorney General. New Mexico requires a written sales contract for certain telemarketing transactions.
- North Carolina Utilities Commission. North Carolina has a permission to continue law and a requirement for a written sales contract for certain telemarketing transactions,
- North Dakota Attorney General. North Dakota requires a written sales contract for certain telemarketing transactions.
- Ohio Attorney General. Ohio requires a written sales contract for certain telemarketing transactions.
- Oregon No Call List Website. Oregon provides its citizens with a DNC list that is operated by a private contractor. Oregon also has a no rebuttal law and a permission to continue law.
- Pennsylvania Attorney General. Pennsylvania has telemarketer registration, a no rebuttal law, and a requirement for a written sales contract for certain telemarketing transactions.
- Rhode Island Attorney General. Rhode Island requires a written sales contract for certain telemarketing transactions.
- South Carolina Public Service Commission. South Carolina has a no rebuttal law.
- South Dakota Attorney General. South Dakota has a no rebuttal law, a permission to continue law, and a requirement for written sales contracts for certain telemarketing transactions.
- Tennessee Regulatory Authority. Tennessee provides its citizens with a free DNC list.
- Texas Public Utility Commission. Texas' DNC list will be effective in April 2002. It provides for a $1,000 fine in case of violation.
- Utah Division of Consumer Protection. Utah has a no rebuttal law and a requirement for a written sales contract for certain telemarketing transactions.
- Vermont Attorney General. Vermont requires a written sales contract for certain telemarketing transactions.
- Virginia Attorney General. Virginia requires a written sales contract for certain telemarketing transactions.
- Washington Attorney General. Washington has a no rebuttal law and telemarketer registration.
- Wisconsin State Department of Agriculture, Trade and Consumer Protection. Wisconsin's DNC list is still being developed. Wisconsin requires a written sales contract for certain telemarketing transactions.
- Wyoming Attorney General. Wyoming developed a DNC service by requiring telemarketers to use the Direct Marketing Association's DNC list. Additionally, telemarketers must register with the state and pay a $500 fee.
There are commercial products that may reduce the number of telemarketing calls received.
These devices work in different ways. Some send a signal over the line when the phone rings. The signal indicates that the line is disconnected to telemarketers using predictive dialers. This type of product only works against telemarketers who use predictive dialers. Smaller telemarketing companies may not possess predictive dialers, and would evade the device.
Other devices play a prerecorded message for the telemarketer requesting that the call recipient be placed on a do-not-call list. There are also services offered by some phone companies that will automatically screen calls that are sent without caller id (CID) information.
Telephone companies themselves offer some services that can help individuals avoid telemarketing calls. These services include Caller ID, anonymous call rejection, and phone services that require the caller to give identification before the recipient's phone line will ring.
- The Phone Butler.
- Fact Sheet 19: Caller ID and My Privacy, Privacy Rights Clearinghouse.
Telemarketing and Workplace Privacy
Individuals who work in telemarketing call centers experience invasive monitoring. The telemarketing business is privacy invasive both to its workers and to its customers. Callers are regularly monitored for speed in making calls and the number of times they use the customer's name. For more on this issue, please visit the EPIC Workplace Privacy Page.
- Telemarketers face new restrictions, MSNBC, February 12, 2003.
- Cooling on the Cold Calling?, Some Telemarketers Changing Strategy, Washington Post, January 4, 2003.
- First USA Settles State Suits Over Telemarketing Partners, Wall Street Journal, December 31, 2002.
- FTC Plans Registry To Block Sales Calls, Telemarketers Vow To Fight Proposal, Washington Post, December 18, 2002.
- Consumers Finding Ways to Zap Telemarketing Calls, New York Times, December 18, 2002.
- OUR OPINIONS: Long-overdue measures to silence telemarketers, Atlanta Journal Constitution, September 26, 2002.
- ATA Prepares for DNC Legal Challenge, DMNews, August 5, 2002.
- Chipping away at consumer privacy/Complaints on shared data rise, San Francisco Chronicle, July 28, 2002.
- Now That Ringing Cellphone May Be a Telemarketer's Call, New York Times, July 5, 2002.
- DMA: Telemarketers May Be Overcalling, DM News, June 20, 2002.
- FTC idea could get telemarketers to stop calling, USA Today, June 5, 2002.
- FTC Proposes National Do-Not-Call List For Telemarketers, Yahoo News, June 4, 2002.
- Hold the Calls! The case against telemarketers, National Review, May 30, 2002.
- Latest Privacy Mailings Are Hard to Decipher, Wall Street Journal, May 30, 2002. "...Federated Department Stores, which owns Macy's, recently offered to sell access to its 1.5 million cardholder names. The asking price: $90 per 1,000 names with a minimum order of 50,000 names. For an additional $15 per name, the list will include age, household income and the ages of children."
- Forum Will Shape FTC Teleservices Debate, DMNews, May 24, 2002.
- Consumer Laws Aim to Disconnect Telemarketers, Boston Globe, May 18, 2002.
- Curb the Endless Ringing of the Telemarketers, New York Times, May 18, 2002.
- Canadian Firm Charged with Telemarketing Fraud Settles FTC Complaint; Will Pay More than $111,000 in Consumer Redress, FTC Press Release, April 29, 2002.
- FTC: No Campaign to Promote National DNC List, DMNews, April 23, 2002.
- Seattle man has telemarketer's number: he gets apology and $500, Seattle Post Intelligencer, April 9, 2002.
- Telemarketer Ordered to Pay $39 Million to Consumers, Washington Post, March 19, 2002.
- FTC Anti-Telemarketer List Would Face Heavy Demand, Washington Post, March 19, 2002.
- Zero Abandonment Rate Proposed in California, DMNews.com, March 8, 2002.
- Agreement Curbs Telemarketing Appeals to Bank Customers, Office of the New York Attorney General Press Release, February 27, 2002.
- Anti-Telemarketers Send Out A Very Busy Signal, Washington Post, February 20, 2002.
- What You Can Do: QwestDex Is Selling Your Data, St. Paul Pioneer Press, February 6, 2002.
- FTC Mulls Predictive Dialer Ban, Catches Industry by Surprise, DMNews.com, February 4, 2002.
- Editorial: Why Fight the Inevitable?, DMNews.com, January 28, 2002.
- FTC Chief Grilled On Privacy At 1st Congressional Hearing, Newsbytes, November 7, 2001.
- Local telemarketing firm banned from doing business in state, Pittsburgh Business Times, July 23, 2001.
- Kansas City Telemarketer to Pay $5000 Fine Under New Law, Missouri Attorney General Press Release, July 16, 2001.
- Despite bad rap, telemarketing is a vital business operation, Silicon Valley Business Review, February 16, 2001.
- Phone Records Up for Grabs?, Wired, August 25, 1999.
- The '90s sweatshop: Telemarketers cope with daily rejection, New Standard (WSJ), September 29, 1996.
- Your Help Is Needed to Protect the Do-Not-Call Registry. Send Comments Today to the Federal Trade Commission.
The Federal Trade Commission has proposed to create a loopholein telemarketing regulations that will allow companies to deliver "prerecorded message telemarketing" to their existing customers. This type of telemarketing also leaves "answering machine spam," unwanted messages on voicemail. Even those enrolled in the Do-Not-Call Registry will be affected by the proposed loophole. In order to stop this proposed loophole, you need to file commentswith the Federal Trade Commission. It will take you less than ten minutes to protect the Do-Not-Call Registry. The Commission is accepting comments until January 10, 2005.
Under the proposal, companies could call their current customers and play a recorded message. The message would have to give the consumer an opportunity to opt out of the calls, either by pressing a button or
by calling a toll-free number. The key to the proposal is the definition of businesses' "current customers." Under the Do-Not-Call Regulations, a business relationship exists whenever an individual makes an inquiry about or buys any product or service. Inquiries create a relationship for three months; purchases for eighteen. During that period, the company can make telemarketing calls even if the individual is enrolled in the Do-Not-Call Registry, and the individual must opt out of each business relationship individually. Technically, under the regulations, buying a cup of coffee creates a business relationship that permits telemarketing for eighteen months.
The Commission's proposal comes at a time where technology and business practices could create the "perfect storm" for a barrage unwanted telemarketing and answering machine spam. Technologically, with Internet telephony (VoIP), it now is easier and less expensive to use a regular computer to initiate automated, prerecorded voice calls. Additionally, many retail businesses are asking for identification information at the point of sale. Companies collecting this information could exploit this loophole to send volumes of prerecorded telemarketing and answering machine spam.
EPIC and a coalition of privacy groups will file formal comments on the loophole, stressing that individuals can opt in to this form of telemarketing if they choose, but that a mere business relationship should not authorize companies to deliver prerecorded messages (Jan. 2005)
- Coalition Opposes Telemarketing Loophole.EPIC, joined by a coalition of consumer and privacy groups, filed commentstoday with the Federal Trade Commission and Federal Communications Commission urging the agencies not to create a loophole for prerecorded established business relationship telemarketing. If the loophole is adopted, businesses could send prerecorded messages to their customers, even if they are on the Do-Not-Call Registry. Senators Bill Nelson (D-FL) and Diane Feinstein (D-CA) have also objected(PDF) to the proposed loophole. For more information, see the EPIC Telemarketing Page. (Jan. 10, 2005)
- Sen. Nelson Joins EPIC in Opposing Telemarketing Loophole.Senator Bill Nelson (D-FL) has called uponthe Federal Trade Commission to abandon a proposed loophole to the telemarketing Do-Not-Call Registry. The loophole would allow companies to send recorded messages to persons with whom they have done business. In a letter(pdf) to the FTC, Nelson warned that the loophole threatens to erode consumer privacy and flood homes with unwanted messages. EPIC and Nelson are urging the public to commenton the loophole by January 10, 2005. (Dec. 7, 2004)
- EPIC Joins Brief on Junk Faxes Before the Georgia Supreme Court.EPIC and Private Citizen, Inc. argued in a brief(PDF) to the Georgia Supreme Court that: "Junk faxing is simply electronic trespass as a means to committing advertising by theft-the electronic equivalent of junk mail sent postage due." In the case, Carnett's Inc. v. Michelle Hammond, the court will determine whether individuals can bring class action suits under the Telephone Consumer Protection Act, and whether an "established business relationship" exemption exists that would permit sending unwanted faxes. (Oct. 18, 2004)
- Telemarketers Fail to Block Do-Not-Call Registry.The Supreme Court refused to hear an appeal by telemarketers attempting to invalidate the Do-Not-Call Registry. More than 62 million numbers are now enrolled in the registry. For more information, see the EPIC Do-Not-Call Registry TimelinePage. (Oct. 4, 2004)
- Court Upholds Do-Not-Call Registry.The U.S. Court of Appeals for the Tenth Circuit has upheld(pdf) the Federal Trade Commission Do-Not-Call Registry against a legal challenge brought by telemarketers. The decision allows the continued operation of the list, allows the government to levy fees on telemarketers for its operation, and recognizes that the FTC has the authority to create and operate the list. For more information, see the EPIC Do-Not-Call TimelinePage. (Feb. 17, 2004)
- DMA Issues Telemarketing Study.The Direct Marketing Association has issued a studyon the telemarketing industry in the wake of the Do-Not-Call Registry's enforcement. The study found that the inidustry has been deeply affected by the registry, which prohibits contact with 55.5 percent of the consumer public. The study states this averages out to approximately 118 million consumers, 18 million of which are telemarketing "customers," having bought from telemarketers in the past 12 months, while 98 million are non-customers. (Nov. 18, 2003)
- FCC Approves Telemarketing No Call Registry.The Federal Communications Commission has authorized a national telemarketing do-not-call registrythat will be operated in conjunction with the Federal Trade Commission. Individuals can enroll in the registry online starting tomorrow, June 27, 2003. It is estimated that individuals who enroll in the registry will experience a 70% reduction in telemarketing calls. The new rules also require written consent from an individual before a business can send a "junk fax." (Jun. 26, 2003)
- Congress Nears Passage of "Do-Not-Call" Bill.By a 418-7 vote, the House of Representatives passed telemarketing legislationthat will allow the FTC to operate a national Do-Not-Call list. The DNC list is supported by the Bush Administration, and the Senate is likely to approve telemarketing legislation this week. (Feb. 13, 2003)
- FTC Announces National Do-Not-Call List.The FTC will establish a national DNC listthat will accommodate both Internet and toll-free phone number enrollment. The new regulations also require telemarketers to transmit caller ID information, establish new rules for the use of preacquired account number information, and prohibit "abandoned" calls. For the list to operate, Congress will have to approve the levying of charges to the telemarketing industry in order to fund the program. EPIC and a coalition of consumer and civil liberties groups submitted detailed commentsin favor of a DNC list. (Dec. 18, 2002)
- EPIC Files Comments on the TCPA.EPIC and ten leading advocacy groups filed commentswith the Federal Communications Commission on the Telephone Consumer Protection Act (TCPA). The groups advocated the creation of a telemarketing "do-not-call" registry and for the requirement that telemarketers send Caller ID information. (Dec. 8, 2002)
- FCC Solicits Comments on Telemarketing.The Federal Communications Commission (FCC) has issued a noticeof proposed rulemaking on the Telephone Consumer Protection Act (TCPA), a federal law that regulates telemarketing and fax advertising. The notice requests comments on creating a national do-not-call list, and on regulations for autodialers and prerecorded voice telemarketing. Any member of the public can comment until November 22, 2002, and TCPALaw.com has posted a systemto facilitate submission of comments. (Oct. 8, 2002)
- EPIC Urges Individuals to Send Comments on the Changes to the TSR.The Federal Trade Commission is soliciting your comments on changes to the Telemarketing Sales Rule (TSR). The TSR governs how many telemarketers may make calls to your home. This is your opportunity to tell the FTC how to limit telemarketing calls and to increase your privacy! It is important that members of the public comment. You can do so until April 15, 2002. EPIC and thirteen leading consumer organizations filed
commentson the TSR on April 10, 2002. Individuals are free to copy and paste from these comments in their own submission.
The FTC's request for comments is complex and it includes privacy issues, consumer protection issues, and technical aspects of telemarketing. EPIC is advising the public to include these issues in their comments:
- The FTC should create a national do-not-call registry for individuals who wish to avoid sales calls. Individuals should be able to enroll by postal mail, e-mail, by dialing a toll-free number, or by submitting a phone number on a web page. Enrollment should be a simple process with a minimum amount of authentication.
- The FTC should place an affirmative obligation on telemarketers to transmit caller ID information every time a sales call is initiated. Telemarketers should transmit an accurate, listed phone number of their customer service department.
- The FTC should require all telemarketers to improve their autodialer technology so that there are no "abandoned" calls.
- The FTC should ban the collection of billing information from anyone other than the consumer, and the disclosure of billing information to any person to use in telemarketing.
- The FTC should explore ways of making all commercial entities who engage in telemarketing, including banks and common carriers, subject to the standards in the Telemarketing Sales Rule.
- EPIC Files Comments on Telemarketing Practices.EPIC and thirteen leading consumer advocacy groups filed commentswith the Federal Trade Commission on the Telemarketing Sales Rule (TSR). The groups advocated the creation of a telemarketing "do-not-call" registry, a requirement that telemarketers send Caller ID information, and for a prohibition on automatic dialers that produce abandoned calls. Individuals can still comment on the TSR until April 15, 2002. For more information, see the EPIC Telemarketing Page. (Apr. 10, 2002)
- FTC Seeks Comment on Telemarketing Sales Rule.EPIC is urging individuals to comment on the Federal Trade Commission's (FTC) proposed changes to the Telemarketing Sales Rule(TSR). The TSR regulates how telemarketers can make sales calls. More information and suggested comments are available on the EPIC Telemarketing Page. (Feb. 7, 2002)
- FTC Proposes Telemarketing Do-Not-Call List.The Federal Trade Commission has issued proposed changesto the Telemarketing Sales Rule (TSR) that would create a national Do-Not-Call (DNC) list for individuals who wish to avoid sales calls. The proposed changes would also prohibit the use of "pre-acquired account information" in telemarketing. The FTC has encouraged individuals to commenton the changes online. (Jan. 25, 2002)
- FTC Chairman Announces Privacy Agenda.Timothy Muris, Chairman of the Federal Trade Commission (FTC), today released a new privacy agendafor the agency. The agenda calls for a 50% increase in privacy resources, improved privacy complaint handling, more protection for consumers from spam, telemarketing, pretexting and ID theft, and increased enforcement of privacy policies and existing laws such as the Fair Credit Reporting Act (FCRA) and the Children's Online Privacy Protection Act (COPPA). The Chairman concluded, however, that it was "too soon" to
- Federal Court Severely Restricts Consumer Privacy.On August 18, the U.S. Tenth Circuit Court of Appeals handed down a decisionthat erodes consumer control over telephone usage information. The court ruled that phone companies can sell or give consumer proprietary network information (CPNI) -- which includes the location, duration, and frequency of phone calls -- to telemarketers without the explicit permission of customers. The Federal Communications Commission has announced that it will appeal the decision. (Aug. 18, 1999)
- EPIC: ACA International v. FCC (2015 TCPA Order Litigation)
- EPIC Comments on the Telemarketing Sales Rule, April 10, 2002.
- Fact Sheet 5: Telemarketing, Privacy Rights Clearinghouse.
- Private Citizen. Private Citizen offers a number of services to reduce telephone and mail marketing.
- Ian Ayres & Matthew Funk, Marketing Privacy: A Solution for the Blight of Telemarketing (and Spam and Junk Mail), Working Paper (2002).
- How to Make a Telemarketer Cry.
- Michael Shannon, Combating Unsolicited Sales Calls: The 'Do-Not-Call' Approach to Solving the Telemarketing Problem, 27 J. Legis. 381 (2001).
- Joseph Cox, Telemarketing, the First Amendment, and Privacy: Expanding Telemarketing Regulations Without Violating the Constitution, 17 Hamline J. Pub. L. & Pol'y 403 (1996).
- Mark S. Nadel, Rings of Privacy: Unsolicited Telephone Calls and the Right of Privacy, 4 Yale J. on Regulation 99 (1986).
- Antitelemarketer.com. Antitelemarketer has resources on "Tele-Tormenting," techniques to annoy telemarketers.
- Smallclaim.info, a site devoted to lawsuits against telemarketers using prerecorded or artificial voice sales calling.
- Zen and the Art of Small Claims, an informal guide to litigating claims against telemarketers in small claims courts.
- Oscar Gandy, The Panoptic Sort: A Political Economy of Personal Information,1993.
- Robert Ellis Smith, Ben Franklin's Web Site: Privacy and Curiosity From Plymouth Rock To the Internet, 2000.
- Californians Against Telephone Solicitation.
- Diana Mey Anti-Telemarketing Page.
- Telemarketing Laws.com, via Consumer.net
- The Privacy.net 'Opt-Out' Information Page, Privacy.net.
- Junk Mail and Telemarketing, Google Web Directory.
- Enigma Anti Telemarketing Software.
- Andrew Wetzler & Associates.
- Ameridial. "Ameridial's trained agents make about 70 million outbound calls per year, specializing in building custom databases and delivering pre-qualified leads. Ameridial maintains 300+ automated stations with predictive & preview dialing capabilities."
- CC News.
- Call Center Magazine.
- Dunhill International List Company. Sells lists of personal information for telemarketing including the "New Baby Database," "Subprime Auto Loan Applicants," "Affluent America," and many other lists.
- Guidelines for Managers of Telemarketing Enterprises Who Sell Magazine Subscriptions, Magazine Publishers of America.
- American Teleservices Association. A telemarketing industry group.
- Direct Marketing Association. A marketing industry group.
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