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As of October 2003, sellers, telemarketers and other service providers were required to be in compliance with federal do not call laws governing telephone solicitations to consumers. While the laws are on the books and compliance is mandated, it is doubtful that the laws uniformly are being followed to the letter. OVERVIEW Both the FTC and the FCC regulate telemarketing practices and both have established Final Rules addressing the National Do Not Call Registry and related issues. The registry is a list of phone numbers from consumers who have expressed their preference to limit the telemarketing calls they receive. The registry is managed by the FTC, and is enforced by the FTC, the FCC and state officials. The federal do not call provisions cover any plan, program or campaign to sell goods or services through interstate phone calls, including calls by telemarketers who solicit consumers on behalf of third-party sellers, and sellers who are paid to provide, offer to provide, or arrange to provide goods or services to consumers. The do not call provisions do not cover calls from companies with which a consumer has an existing business relationship, political organizations, charities, and telephone surveyors. If a consumer makes a specific request to a company not to call, the company may not call, even if it has an established business relationship with the consumer. Thus company-specific do not call lists should be maintained, written policies must be developed, and personnel training must occur. A company-specific do not call request applies to all affiliated entities if the consumer reasonably would expect them to be included given the identification of the caller and the product being offered. The do not call provisions not only prohibit calls to phone numbers listed on the registry — absent written consent or an established business relationship � and they also forbid calls by a seller to any person within a given area code unless the seller first has paid the annual fee for access to that portion of the registry that includes phone numbers within that area code. In addition, no person or entity may initiate any calls for telemarketing purposes to a residential telephone subscriber without first meeting the following minimum standards: (a) adoption of a written policy for maintaining a do not call list; (b) informing and training personnel engaged in any aspect of telemarketing of the existence and use of the do not call list; (c) maintaining a do not call list containing all do not call requests and recording any do not call requests on the do not call list within a reasonable time, not to exceed 30 days from the date such request is made; and (d) providing the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is made, and an address or telephone number at which the person or entity may be contacted. The telephone number may not be a 900 number or any other number for which charges exceed local or long distance charges. Violations of the do not call rules can result in fines of up to $11,000 per violation. There are safe harbor provisions for errors made after certain procedures and practices have been put into place by a company. Access to the registry, at http://www.telemarketing.donotcall.gov, is limited to sellers, telemarketers, and other service providers. The registry may not be used for any purpose other than preventing telemarketing calls to the telephone numbers listed on the registry. After Oct. 1, 2003, companies must synchronize their lists with an updated version of the registry every three months. The only information a company will receive when accessing the registry is the telephone number information of registrants. Data for up to five area codes is available for free. Above that, there is an annual fee of $25 per area code of data, up to a maximum annual fee of $7,375 for the overall United States database. After payment is processed, a company is given an account number and then is permitted to access the appropriate portions of the registry. A telemarketer or other service provider working on behalf of a seller may access the registry directly or through the use of its seller-client’s account number without a separate fee. If a telemarketer or service provider accesses the registry on its own behalf, it will have to pay its own separate fee and use its own account number. DO IT RIGHT The FTC and the FCC take compliance with the federal do not call rules seriously. If they have not done so already, companies immediately should take all steps necessary to come into compliance, as penalties for violations can be large. A skilled and knowledgeable counsel should be consulted. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His Web site is www.sinrodlaw.com, and he can be reached at [email protected] . To receive a weekly e-mail link to these columns, please send him an e-mail with “Subscribe” in the subject line.

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