ICBA - Publications - Don't Run Afoul of Do Not Call

Don't Run Afoul of Do Not Call

OCTOBER 3, 2003


Don't Run Afoul of Do Not Call

Legal challenges to the FTC's "do-not-call" registry have cast doubt on the database of over 50 million consumers that don't want those intrusive calls at dinnertime. Just before the registry was to have taken effect on Oct. 1, a federal judge declared the registry unconstitutional because it banned only commercial calls but not calls from charities. Efforts are moving forward to resolve the confusion and implement the FTC's "do-not-call" registry, but for now, the registry is unavailable and the list is not binding.

The current legal dispute affects the national list and does not affect any separate state lists. It is, however, likely to impact those states that piggy back on the national list. Currently, 32 states have some form of do-not-call law. Legal challenges are pending to the registries in Colorado and Indiana, and some of the same issues that apply to the FTC registry may also apply to individual state laws. Bankers should check with state authorities to assess the impact of these recent court decisions on their own state requirements.

Banks Must Abide by Current Do Not Call Rules. Meanwhile, even though the FTC registry is in limbo, the FCC telemarketing rule is still very much in effect, and community bankers should be aware of what is covered. Few community bankers use automated dialing systems or pre-recorded messages for marketing. But the rule is much broader. A telemarketing call is any telephone call "for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services." That means your call to the non-bank customer referred to you by a bank customer would be a telemarketing call. When a community banker calls potential business prospects, it's telemarketing, even though it's not what most of us think of as telemarketing. As a result, you can't make marketing calls before 8:00am or after 9:00pm. More important, the bank must maintain it's own "do-not-call" list and respect the request of anyone that asks to be added to it. A request to be added to the bank's "do-not-call" list overrides the established business relationship exception for five years, even though the person continues to do business with you. And, if you leave a message on an answering machine, you must leave your phone number, so the person can call to be added to your "do-not-call" list.

Once issues surrounding the do-not-call registry are resolved, bankers may not call numbers on the registry to offer their services. There are important exceptions. If the person called is a family member, friend or acquaintance-someone with whom you have a personal relationship-that's okay.

Also, for most community bankers, existence of an "established business relationship" will be the most important exception to the do-not-call list. The business relationship exception allows call to people who made a purchase or had a transaction with the bank in the last 18 months or inquired about a product or service within the last three months, even if the person has registered on the national do-not-call registry.