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CAN I STILL CALL UNDER "DO NOT CALL?"
C.J. Hayden, MCC


The Federal Trade Commission and Federal Communications Commission regulations governing the National Do Not Call Registry went into effect nationwide in the U.S. in October 2003. The FTC's Telemarketing Sales Rule covers calls made across state lines, and the FCC's Telephone Consumer Protection Act Rules apply to calls made within and outside your state.

There are numerous federal regulations that govern telemarketing, and many of them have been in effect for over a decade. The 2003 rules have attracted so much attention because they introduced the Do Not Call Registry, intended to prevent telemarketers from calling anyone whose phone number has been registered.

When I read the actual rules, what sprang to mind was an excerpt from the entrepreneurship classic "Small-Time Operator" by Bernard Kamoroff: "The Lord's Prayer contains 56 words. Lincoln's Gettysburg Address has 268 words. The Declaration of Independence is 1,322 words long. Federal regulations governing the sale of cabbages are 26,911 words long."

You're welcome to read the regulations yourself, if you dare. The actual rules are available at: http://www.ftc.gov/os/2002/12/tsrfinalrule.pdf

A more or less plain English explanation is available at:
http://www.fcc.gov/cgb/donotcall/

Basically, the pages and pages of rules boil down to this: "Don't call people who have never heard of you, at home, and try to sell them consumer goods and services." Well, I could have told you that without needing to pass a law.

Don't get me wrong — I think these regulations were, if you'll excuse the pun, called for. My own home telephone has been blissfully silent since I put my number on the Registry. Most of the calls I receive now are from friends, and actually welcome.

The good news for those of us who spend a fair amount of time marketing our services by phone is that the rules are designed to protect us from receiving many unwanted calls ourselves, while still allowing us to market our own businesses effectively.

First of all, business-to-business marketing is exempt from the Do Not Call provisions. If you market your services to corporations, nonprofits, or small businesses, you are engaged in business-to-business marketing. If an entrepreneur or self-employed professional is using a home telephone number to conduct business, and you call them at that number to sell them something for business use, that's a business-to-business call.

Also exempt from the Do Not Call rules are calls made on behalf of nonprofit organizations, calls made to people with whom you have a personal relationship, calls made to those with whom you have an established business relationship, calls made to anyone who has specifically requested that you call them, and any call that is NOT made for the purposes of soliciting a sale.

All of these exceptions have legal definitions, of course. For those of you who do call consumers at home, note the following:

  • Personal relationship means any family member, friend, or acquaintance. "Acquaintance" is not further defined.
  • Established business relationship means someone who has made a purchase or any financial transaction with you during the last 18 months, or an inquiry about your products and services within the last 3 months, so long as that person has not requested that you stop calling them.
  • To continue calling once the time limits above have expired supposedly requires a written, signed request from the consumer. But if the consumer verbally expresses interest as the result of your calls, there appears to be no restriction against considering that a new inquiry, and restarting the clock.

The only type of calls covered by the regulations are those made for the purpose of solicitation, defined as inducing the purchase of goods and services. If you call someone to say hello, share information, or invite them to attend a community event, it seems to me that it would be difficult to claim that a solicitation was taking place.

If after reading this far, you're still feeling nervous about how these rules might impact your business, here's one more significant piece of guidance, quoted directly from the FTC bulletin: "FTC staff does not contemplate enforcing the National Do Not Call Registry provisions against individuals who make sales calls out of their own homes to personal friends, family members, or small numbers of personal referrals."

Near as I can figure it, the only time the rules would impact the average independent professional is when you are calling people at home for the express purpose of selling them consumer goods and services, you don't know them, haven't been personally referred to them, and they've expressed no interest in your business. As a professional selling your own services, why exactly would you be calling these people?

Now I am aware of the fact that there are some professionals who make cold calls to purchased lists of consumers. Financial planners and insurance brokers in particular have traditionally included this activity as part of their marketing plan.

However, when I ask these professionals about the effectiveness of these calls, they typically tell me their rate of return is abysmally low. In fact, they get much better results by building referrals from clients and other professionals, personal networking, public speaking, and following up with prospects who have already expressed interest. None of these activities are likely to be hindered by the Do Not Call rules.

If you do want to make cold calls to consumers as a regular part of your marketing plan, you'll need to comply with the rules. The FTC also suggests: "As a matter of good will, small direct sellers may want to avoid contacting a person whose number is on the Registry. The National Do Not Call Registry has a free, single number lookup feature to enable small direct sellers to verify whether an individual number is in the Registry database."

Should other entrepreneurs and self-employed professionals be aware of these rules? Certainly. Ignorance of the law is never an excuse. But do they prevent you from marketing yourself effectively and efficiently? It would seem not. In fact, following the rules could help reorient your sales activities to avoid cold calling and focus on permission-based relationship marketing. In other words, doing what works better anyway.


Copyright © 2003-2008, C.J. Hayden

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