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NADA offers reminder of company-specific do-not-call responsibilities

November 22, 2010

Paul Metrey, an attorney for the National Automobile Dealers Association, said this month he has received reports of dealers being sued for violating the Federal Communications Commission’s and the Federal Trade Commission’s company-specific do-not-call (DNC) rules.  

To help protect dealers against these lawsuits, Metrey offers the following recap of the company-specific DNC rules:

 

Both the FCC and the FTC administer and enforce similar company-specific DNC rules. The FCC rules apply to intrastate and interstate telephone solicitations, whereas the FTC rules are limited to interstate telephone solicitations.

 

In addition to agency enforcement, the Telephone Consumer Protection Act authorizes private lawsuits in state court, if permitted by the state, with damages of up to $500 per violation (which can be tripled if the violation is knowing or willful). 

The company-specific DNC rules predate, and are entirely separate from, the National DNC Registry rules that took effect in October 2003. Dealers must comply with both sets of rules.

 

  • The Company-Specific DNC rules require dealerships to: 

1) Not initiate a telephone solicitation to any consumer who has asked the dealership not to call him or her,

 

2) Develop a company-specific DNC List to record such requests and the time they were made, 

3) Develop a written policy for maintaining the Company-Specific DNC List and train personnel engaged in any aspect of telemarketing on the dealership’s company-specific DNC procedures, and

 

4) Ensure that, during any telephone solicitation, the caller identifies 

    (ihimself or herself,

    (ii) the name of the dealership, and

    (iii) the address or telephone number where the dealership may be contacted (which cannot be a 900 number or other number for which the consumer would incur charges that exceed his or her local or long-distance transmission charges).

 

Dealerships must honor a company-specific DNC request regardless of whether the consumer has registered his or her phone number on the National DNC List or whether an established business relationship exists with the consumer. In fact, a company-specific DNC request terminates an established business relationship. 

The request must be honored even if the consumer continues to do business with the dealership.

 

The dealership’s written company-specific DNC policy must be "available upon demand." There is no requirement that the dealership send the consumer written confirmation that he or she has been placed on its company-specific DNC List. 

Dealers are reminded of the need to transmit their Caller ID information when conducting telephone solicitations. The phone number may be any number associated with the dealership which allows the consumer to identify it. This includes the number assigned by its carrier, the specific number from which its sales representative place a call, the number of a party that made the telephone solicitation on its behalf, or its customer service number.

 

The number must permit an individual to make a DNC request during regular business hours (9 a.m. to 5 p.m. Monday through Friday). 

The dealership, or a person placing a telephone solicitation on its behalf, must be able to record DNC requests at that number. Therefore, if the person answering calls at that number is not the same person who made the telephone solicitation, or if the dealership is using an automated system to answer calls, the dealership nevertheless must ensure that its company-specific DNC responsibilities are satisfied.

 

Some state laws are more restrictive. The federal rules permit a business to call consumers who make an inquiry to the business for up to 90 days; in Illinois, the limit is 30 days. 

For additional information, see the NADA publication, "A Dealer Guide to Federal Telemarketing Restrictions," which was mailed to all NADA members in September 2003.

 

Note: the 2-year-old publication does not address subsequent telemarketing developments, such as the enactment of the CAN-SPAM Act of 2003 and the Junk Fax Prevention Act of 2005.

 

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