United States: Public Gets Two-Year Refresher On Do-Not-Call Registry

Registry a shield against unprecedented flood of illegal calls

New Edition

Ever since Congress passed the widely popular Do-Not-Call Registry Fee Extension Act of 2007 back in early 2008 (did anyone tell them to get the dates to match?), the Federal Trade Commission (FTC or Commission) has been required to provide the public with a "state of the registry" of sorts every two years. The reports offer a glimpse into the Registry's operations, information regarding the impact of new technology on the Registry, and other issues pertaining to the Act and its implementation.

The 2017 edition was recently released, and it contains some worthwhile information.

Call Virus

Illegal telemarketing calls are proliferating. According to the latest report, technological advances like voice over internet protocol have enabled scammers to make an unprecedented number of calls at little expense. Other technical advances have made spoofing calls – hiding the true identity of the originating caller through fake caller ID – easier than ever.

The result? Scammers are running wild, and consumer complaints to the FTC and the Federal Communications Commission (FCC) have skyrocketed over the past few years; in the final quarter of 2017, the FTC received 375,000 complaints per month, up from 63,000 during the same period in 2009 and the FCC received nearly 185,000 complaints since Aug. 1, 2016.

In response, the FTC held a series of contests challenging technologists to create technical solutions to the increasing call volume. From 2012 to 2015, the Commission awarded tens of thousands of dollars to individuals and small teams who created apps, honeypots and algorithms designed to thwart illegal callers – although it's curious that the report does not mention a follow-up competition taking place after 2015. The competitions have led to various technology innovations, and telecommunication and technology companies have several programs in place designed to counter the uptick in illegal calls.

Worst Action Movie Ever

The Commission's call-blocking efforts are addressed by the report as well. The FTC has recently teamed up with the dashingly named Robocall Strike Force, an organization that includes "providers of traditional landline, mobile, and VoIP services, handset manufacturers, operating system developers, and VoIP gateway providers."

Requests made by the Strike Force have led directly to official Commission guidance on how providers can block illegal calls without running afoul of regulation. For instance, in response to a Strike Force query, the FTC clarified that providers may block spoofed calls if the original subscriber to the number asks for them to do so.

The report indicates that the Commission is currently working on rules that will allow providers to block illegal calls directly and methods by which originating phone numbers can be authenticated, thereby defeating call spoofers.

Developments in the Established Business Relationship Carve-out

The report also discussed the Telemarketing Sales Rule (TSR) and the FCC's rules contain exemptions that permit a seller or telemarketer to call a person who has listed his or her telephone numbers on the Registry if the call is to a person with whom the seller has an "established business relationship" (EBR). This exception allows telemarketers to call customers who have recently made purchases or have made inquiries, even if their telephone numbers are on the Registry. In 2015, the Commission amended the TSR to make clear that sellers and telemarketers have the burden of proof to demonstrate the existence of an established business relationship, as they had found that many telemarketers were abusing the exception. 

The Takeaway

Finally, there are some hard numbers on the ongoing success of the Registry. According to the Commission, by the end of September 2017, the Registry had 229,816,164 active registrations.

In a nation of 325 million people, often riven by hyperpartisan conflict, is not the Registry the definition of a successful government program?

Companies involved in telemarketing need to not only understand how to access and honor the Registry and obtain consent or fall within the TSR's EBR exception, but they must also comply with complex operational requirements of the TSR and the Telephone Consumer Protection Act (TCPA). The repercussions for noncompliance are significant. Do not assume your call center vendor knows what they are doing. We regularly advise merchants on compliance and call center vendor engagements.

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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