Telemarketing may be among the world’s most hated professions, since telemarketers always seem to call at an inconvenient time, and they rarely seem to listen when you say you are not interested. Other intrusive forms of marketing have evolved, from junk mail and unsolicited fax transmissions to email “spam” and other forms of internet marketing. Telemarketing occupies a special, infamous place in our culture, though. Consumers grew tired enough of relentless telemarketers that Congress enacted the Telephone Consumer Protection Act (TCPA) in 1991. The Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) jointly established the National Do-Not-Call Registry in 2003 to enable consumers to have their phone numbers removed from telemarketers’ call lists.
Intrusive Marketing Techniques
Businesses that have a product or service to sell will always find new ways to try to sell it to consumers. Sometimes they find innovative new ways that change the world for the better, but at other times they just call consumers at home during dinner. It is not clear exactly when telemarketing became a common practice, but it is part of a much larger practice that probably began with unsolicited mailings, commonly known as “junk mail.”
When fax machines became common in the 1980s and 1990s, marketers used that as a means of sending unsolicited materials. The internet brought an explosion of unwanted advertising, known as “spam,” into consumers’ email inboxes. This led to even greater problems, as some spam messages contain viruses or other malicious software that could allow data breaches or identity theft.
Telephone Consumer Protection Act
The TCPA, as originally passed, placed several important restrictions on telemarketers, including:
- Prohibiting calls before 8:00 a.m. and after 9:00 p.m., local time;
- Requiring callers to state their name, identify the person or business for whom they are calling, and provide a phone number or address for that person or business;
- Prohibiting callers from blocking or concealing their information from caller ID systems;
- Prohibiting solicitation calls to residences using a recording or computerized voice;
- Restricting the use of autodialers; and
- Directing all telemarketers to maintain their own “do-not-call” list of consumers, based on consumers’ requests not to be called, and to honor these requests for at least five years.
Consumers could sue telemarketers who violated the TCPA for their actual damages or $1,500, whichever was larger.
National Do-Not-Call Registry
In 2003, the FCC and the FTC created the National Do-Not-Call Registry, which allows consumers to register their telephone numbers online or by telephone. Telemarketers have 31 days from the date a consumer registers his or her number to stop calling it. Registration originally lasted for five years, but amendments to the law in 2007 made it permanent.
Types of Callers that Are Exempt from the Registry
Callers who are not covered by the Do-Not-Call Registry include callers from whom consumers have consented to receive phone calls, callers with whom a consumer has an “established business relationship” established through voluntary, two-way communication based on an inquiry about products or services, political organizations, people or organizations conducting surveys, and certain charities.
While registration will not prevent them from continuing to call, these callers may still be required to follow other legal restrictions.
Protections Against Other Types of Intrusive Marketing
The TCPA also prohibits unsolicited faxes sent for advertising purposes, which are subject to a minimum statutory penalty of $500. Each unsolicited fax, during the time when fax machines were in wide use, tied up a phone line and used paper and ink. Courts upheld the $500 penalty as “a remedy that would take into account the difficult to quantify business interruption costs imposed upon recipients of unsolicited fax advertisements.” Kenro, Inc. v. Fax Daily, Inc., 962 F. Supp. 1162, 1166 (S.D. Ind. 1997); see also Destination Ventures, Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995).
Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003 in response to the massive rise of “spam” emails. Its requirements include an “unsubscribe” option for recipients, disclosure of the advertiser’s identity and address, and labeling of “adult” content.