Almost Every Company is a Telemarketer

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“We aren’t your traditional telemarketers” is something we hear at the beginning of almost all projects. At this point, I’m not sure I know what’s considered a traditional telemarketer. When looking at class action lawsuits in this space (see TCPA), a telemarketer seems to be just about any company. Meaning, any company that calls or texts a consumer hoping to sell something is “telemarketing”. For example:

  • Gyms texting someone who took a tour
  • Cruise lines calling their past cruisers
  • Hearing aid companies calling to upsell warranties
  • Banks calling members about financing options
  • Pizza shops texting coupons
  • Insurance companies calling someone who matched with their service 
  • And on and on…

What is considered telemarketing?

Telemarketing is defined as “a plan, program, or campaign . . . to induce the purchase of goods or services”. Telemarketing rules apply to your company even if using a third party telemarketer to call on your behalf. The following are outbound efforts I see that generally are not thought of as telemarketing, but are in fact covered by telemarketing rules:

Calling consumers who inquired: even if a customer inquires on your website or by other means, calling them back may be exempt from the national DNC list, but there are other rules that must be followed.

Upsells: Upselling generally occurs when a company tries to sell additional goods or services during a single phone call. Even if the initial transaction is exempt because it’s informational (survey, tracking info, etc.), any upsell following the initial transaction makes the call subject to telemarketing rules.

Text messages: the FCC has made it clear that telemarketing rules apply equally to text messages. Don’t think that because your company only sends texts that certain TCPA rules don’t apply. Further, the TCPA applies to Internet-to-phone text messages which are typically sent from a web portal directly to a consumer’s cellphone. 

Bottom line:

If you call or text consumers (whether they have purchased from your company or not), your company is likely engaging in telemarketing if the goal is to increase revenue. With the average settlement of class actions for calling/texting being over $6mil, it’s wise to look into this. We recommend starting with these key items:

  1. Honor opt-out requests for calls and texts
  2. Obtain the correct level of consent when calling/texting cellphones
  3. Scrub against the national and state DNC lists when applicable
  4. Keep records of compliance for five years

Remember, class actions are very costly, and contacting a consumer who has asked not to be called/texted can result in a civil penalty of $43,280 for each violation.

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