CIPP / US Book - Part 2 Flashcards
Is there a private right of action available in telemarketing?
The tort of “intrusion on seclusion” imposes liability on “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns
To succeed in an intrusion on seclusion tort claim, the plaintiff must show that
With regard to a defendant who is a person, the intrusion would be highly offensive to a reasonable person. In contrast with intrusion tort requirements, telemarketing regulations in the United States address milder intrusions, which do not require a showing of “highly offensive” intrusion.
Who was the Telephone Consumer Protection Act of 1991 (TCPA) issued by?
The FCC issued regulations under the Telephone Consumer Protection Act of 1991 (TCPA)
Telephone Consumer Protection Act of 1991 (TCPA)
- Place restrictions on unsolicited advertising by telephone and facsimile, and updated them in 2012 to address robocalls
- The FCC has determined that these prohibitions encompass text messages
Who was the Telemarketing Sales Rule (TSR) issued by?
The FTC first issued its Telemarketing Sales Rule (TSR) in 1995, implementing the Telemarketing and Consumer Fraud and Abuse Prevention Act
How is telemarketing defined under the Telemarketing Sales Rule (TSR)?
A plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution, by use of one or more telephones and which involves more than one interstate telephone call
Who enforces the Do Not Call (DNC) Registry?
The FTC, the FCC and state attorneys general enforce the DNC Registry, which now contains over 220 million participating phone numbers—and is still growing
Consequences for violating DNC Registry?
Violations of the rule can lead to civil penalties of up to $40,654 per violation. In addition, violators may be subject to nationwide injunctions that prohibit certain conduct and may be required to pay redress to injured consumers
How often do sellers and telemarketers have to update their call lists?
every 31 days
How is the DNC registry accessed?
The registry is accessed via an automated website at www.telemarketing.donotcall.gov. Only sellers, telemarketers and their service providers may access the registry
How is the DNC registry accessed for sellers?
Each seller must establish a profile by providing identifying information about the organization. The seller then receives a unique Subscription Account Number (SAN) upon payment of the appropriate fee
How is the DNC registry accessed for telemarketers?
Telemarketers accessing the registry on behalf of seller-clients are required to identify the seller-clients and provide the seller-client’s unique SAN. (Telemarketers access the registry, at no cost, through the use of their seller-client’s unique SANs. Their access is limited to the area codes requested and paid for by the seller-client.)
What is considered a violation of the DNC registry?
It is a violation of the TSR to place any call to a consumer (absent an exception) unless the registry is checked. In other words, even a call to a consumer whose phone number is not on the registry is a violation of the TSR if the registry was not checked prior to the call
DNC rules do not apply to:
- Nonprofits calling on their own behalf
- Calls to customers with an existing relationship within the last 18 months
- Inbound calls, provided that there is no “upsell” of additional products or services
- Most business-to-business calls
Existing Business Relationship Exception
Sellers (and telemarketers calling on their behalf) may call a consumer with whom a seller has an established business relationship (EBR), provided the consumer has not asked to be on the seller’s entity-specific DNC list
What is required for an existing business relationship exception?
- An EBR exists w/ a customer if the consumer has purchased, rented or leased the seller’s goods or services (or completed a financial transaction with the seller) within 18 months preceding a telemarketing call.
- The 18-month period runs from the date of the last payment, transaction or shipment between the consumer and the seller. - An EBR exists with a prospect if the consumer has made an application or inquiry regarding the seller’s goods and services. This EBR runs for 3 months from the date of the person’s inquiry or application
TSR: Exception Based on Consent
What are the requirements for consent?
The TSR allows sellers and telemarketers to call consumers who consent to receive such calls. This consent must be in writing, must state the number to which calls may be made and must include the consumer’s signature. (A valid electronic signature is acceptable.)
TSR: what is required for a seller or telemarketer to meet the consent requirements?
- The seller’s request for consent must be “clear and conspicuous.”
- If in writing, the request “cannot be hidden; printed in small, pale, or noncontrasting type; hidden on the back or bottom of the document; or buried in unrelated information where a person would not expect to find such a request.”
- If online, the “please call me” button may not be prechecked
The Do Not Call Safe Harbor
- The TSR has a “DNC Safe Harbor” that sellers and telemarketers can use to reduce the risk of liability
- This DNC Safe Harbor provides an important protection for sellers and telemarketers because violations of the TSR can result in civil penalties, as of the writing of this book, of up to $40,654 per call
What are the requirements for the Do Not Call Safe Harbor?
- Seller or telemarketer has established and implemented written procedures to honor consumers’ requests that they not be called
- Seller or telemarketer has trained its personnel, and any entity assisting in its compliance, in these procedures
- Seller, telemarketer, or someone else acting on behalf of the seller . . . has maintained and recorded an entity-specific Do Not Call list,
- Seller or telemarketer uses, and maintains records documenting, a process to prevent calls to any telephone number on an entity-specific Do Not Call list or the - National Do Not Call Registry. This, provided that the latter process involves using a version of the National Registry from the FTC no more than 31 days before the date any call is made
- Seller, telemarketer, or someone else acting on behalf of the seller. . . monitors and enforces compliance with the entity’s written Do Not Call procedures, [then]
The call is a result of error
The TSR requires covered organizations to:
R DISC RCDC
- Retain records for at least 24 hours
- Display caller ID information
- Identify themselves and what they are selling
- Screen and scrub names against the national DNC list
- Call only between 8 a.m. and 9 p.m.
- Respect requests to call back
- Comply with special rules for automated dialers
- Disclose all material information and terms
- Comply with special rules for prizes and promotions
TSR and preemption
Neither the TSR nor the FCC rules preempt state law. As the FTC notes, compliance is required both of “telemarketers,” entities that initiate or receive telephone calls to or from consumers, and “sellers,” the entities that provide or arrange to provide the goods and services being offered
Entity-Specific Suppression Lists
- TSR prohibits any seller (or telemarketer calling on the seller’s behalf) from calling any consumer who has asked not to be called again. Sellers and telemarketers are required to maintain internal suppression lists to respect these DNC requests
- TSR does provide some latitude for companies that have distinct corporate divisions. In general, such divisions are considered separate sellers under the rule
The FTC specifies two factors that should be used to determine whether DNC requests should be shared among divisions:
(1) whether there is substantial diversity between the operational structure of the divisions and
(2) whether the goods or services sold by the divisions are substantially different from each other
- If a consumer tells one division of a company not to call again, a distinct corporate division of the same company may still make calls to that consumer