Telemarketing

Complying with the telemarketing laws and regulations is becoming increasingly complicated. As more states and the federal government pass and amend telemarketing laws, it is difficult to keep track of the changes and how they may impact the newspaper industry. Below is a summary of the laws and recent developments relating to telemarketing within Pennsylvania

What Activities Are Regulated?

  • State and Federal laws regulate your telemarketing calls (calls to sell goods or services).
  • Some of the rules, such as the ones relating to the statewide “do-not-call” list, apply only to calls to residential numbers and not calls to businesses.
  • Many telemarketers are required to register and post a bond with the Pennsylvania Attorney General’s Office. Most newspapers are exempt from this requirement.

When Can I Call?

  • You cannot make telemarketing calls before 8 a.m. or after 9 p.m.

What Do I Have To Say To People I Call?

  • You must identify yourself, as well as the newspaper.
  • You must state the purpose of call and explain what the newspaper is selling.
  • You must provide a telephone number or address where the newspaper can be contacted.

Are There Restrictions On The Way The Newspaper Receives Payment?

  • If the customer pays by check or authorizes you to debit his or her bank account, the newspaper must have express verification, either in writing (e.g., a signed check) or recorded on tape, before processing the payments.
  • There are very specific requirements that apply to transactions debiting a customer’s bank account.

When Do I Have To Terminate A Call?

  • Any time a customer requests it.

Can I Block Caller ID (so that a consumer doesn’t know who is calling)?

  • Beginning in June 2002, you cannot block your name or number from Caller ID services, and you cannot bypass other caller screening services or products. This rule applies only to calls to residential customers.

Do I Need a Written Contract With a Consumer?

  • All telephone solicitation sales must be reduced to a written contract, signed by the consumer, unless:

    • A consumer can receive a full refund by sending a notice of cancellation within five days of the transaction AND your return and refund policy is disclosed to the consumer either orally or in writing AND the refund is processed within 30 days of receipt of cancellation; OR
    • The transaction results from a consumer examining a sample newspaper, advertisement or brochure which: 1) contains the name, address and telephone number of the paper; 2) describes the goods or services provided; and 3) lists any limitations or restrictions that apply to the offer

Can I Send Unsolicited Advertisements By Fax?

No. You cannot send an unsolicited advertisement to a telephone facsimile machine.

What Do I Have To Do To Comply With The Do-Not-Call Rules?

Customer-Specific Do-Not-Call List

  • You cannot call a person who has previously told you that he or she does not want to be called by you.
  • If a person tells you not to call, you must record the request and place that person’s name and telephone number on your “do-not-call” list right away.
  • You must maintain a written record of all requests not to receive future solicitations for ten years.
  • Affiliated Entities. A “do-not-call” request would only apply to an affiliated entity of the newspaper if the customer would “reasonably expect” that his or her request would include that entity. A “do-not-call” request would apply to all departments at a single newspaper.

Statewide Do-Not-Call List (beginning Summer, 2002)

  • These rules apply only to calls to residential numbers.
  • New Pennsylvania law calls for the establishment of a statewide “do-not-call” list. Residential customers can put their names, addresses and telephone numbers on the list.
  • You cannot call anyone on the statewide list, unless a specific exception applies.
  • Telemarketers must obtain the list from the list administrator quarterly (the details are still being developed by the Attorney General’s Office).
  • You have 30 days from the date each quarterly list is issued by the list administrator to conform your call lists with the statewide list and ensure that you do not call the people on the statewide list.
  • A listing on the “do-not-call” list must be maintained for five years or until the telephone number is no longer valid, whichever occurs first.

Are there exceptions to the statewide “do-not-call” rules?

  • Yes. You can still call a residential telephone subscriber (whose name is on the list) if you had an “established business relationship” with the customer within the last 12 months. This is defined as:

    • A prior or existing relationship between the newspaper and a customer;
    • Formed by voluntary or two-way communication;
    • With or without the exchange of money;
    • Where the customer has inquired about, applied for, or purchased a good or service offered by newspaper.
    • If the customer has only “inquired” (and has not applied for or made a purchase), the newspaper must obtain the consent of the telephone subscriber to continue the business relationship.
  • Existing Debts/Accounts. You can still call a residential customer (whose name is on the list) regarding an existing debt, contract, payment or performance.
  • Customer Request. You can still call a residential customer (whose name is on the list) if the customer specifically requests you to contact him or her.

Can an “established business relationship” be terminated?

  • Yes. Even if you have an “established business relationship” with a customer, if that customer asks you not to call anymore, you cannot call that person and must document his or her request.

Are there any specific defenses to an action alleging a violation?

  • Affirmative Defense. You will not be in violation of the “do-not-call” rules if:

    • The newspaper has established and implemented written procedures to comply with the do-not-call rules;
    • The newspaper trains its personnel in the necessary procedures;
    • The newspaper maintains and records the “do-not-call” lists; and
    • Any subsequent call (to a person on the do-not-call list) is made in error

Are there restrictions on how a newspaper can use a “do-not-call” list?

  • You cannot use “do-not-call” lists for purposes other than those set forth in the Act.

Is There A National Do-Not-Call Registry?

  • Not yet. The Federal Trade Commission (FTC) has recently proposed the creation of a national “do-not-call” list. A number of organizations, including the Newspaper Association of America (NAA), have filed comments objecting to various portions of the FTC’s proposal. Among other things, the NAA argued that newspapers should be exempt from rules governing any nationwide “do-not-call” registry.

Do I Need A Written Policy?

  • Yes. A Newspaper must have procedures for complying with the telemarketing rules and maintaining the “do-not-call” lists.

    • It must be a written policy, available on demand.
    • You must inform and train personnel regarding necessary procedures and the “do-not-call” lists

What If I Use An Outside Vendor To Telemarket?

  • You must ensure that the vendor complies with the applicable rules. The newspaper is still liable for violations.

What If I Use Autodialers Or Artificial Or Pre-recorded Messages To Telemarket?

  • There are additional restrictions on the use of these devices (only some of which are listed below).
  • Residential Calls. Unless you have prior consent or an “established business relationship” with a customer, you cannot call a residential telephone line with an artificial or pre-recorded message.
  • Unless you have prior consent, you cannot use an autodialer or an artificial or pre-recorded message to call any emergency telephone line, any guest or patient room at a health care facility, cell phones, beepers, or any service for which the person being called would be charged for the call.
  • Calls to Businesses. You can use autodialers or artificial or prerecorded voice messages to call businesses, although you cannot tie up two or more lines of a multi-line business at the same time.
  • Required Disclosures. Where an autodialer is used to deliver an artificial or prerecorded voice message, there are a number of additional rules. Among other things, the message must identify the newspaper at the start of the message and must include the newspaper’s telephone number or address.

What If I Use Prize Promotions In Telemarketing?

  • You must make certain disclosures prior to receiving payment from a customer.
  • You must disclose the odds of winning, or if the odds are not able to be calculated, the factors used in determining the odds.
  • You must explain that no purchase or payment is necessary to win.
  • You must identify any costs, restrictions or conditions applicable to the prize.
  • You must explain how to participate without purchasing or making payment, including actual instructions, or an address, or local or toll-free number where a person can get the information.

What Are the Penalties For Violating The Telemarketing Rules?

  • Potential penalties vary, depending upon whether the violation is under state or federal law. Under state law, penalties range from $1,000 to $3,000 per violation. Violations of federal laws range from $500 to $10,000 per violation. You could also be liable for actual damages.

What If I Telemarket Across State Lines?

  • If you telemarket across state lines, whether by making outbound calls or receiving calls in response to certain advertising, you are subject to additional rules. These rules require additional disclosures and recordkeeping and prohibit certain practices.

The above information is provided for informational purposes only and is not offered as legal advice. If you have a specific question or concern, please contact our Legal Hotline at (717) 703-3080 or your own legal counsel.

A newspaper does not have to register or post a bond if: 1) the publisher has been operating continuously for at least two years under the same business name; 2) the person soliciting is an employee of the publisher or an employee of an agent of the publisher (has a written agreement with the publisher); and 3) the person soliciting discloses the following during the initial contact: a) the total costs to purchase or receive the paper; and b) the quantity of newspapers that are the subject of the offer

Contact Us  |  3899 North Front Street, Harrisburg PA 17110  |  Phone: (717) 703-3000  |  Fax: (717) 703-3001