Important Do Not Call Definitions
Mary Beth Guard, Executive Editor
There are a number of words and terms that are specially defined for purposes of the Do-Not-Call requirements. Here are the ones we view as most important.
The word "telemarketing" is defined under 15 USC 6106(4) (the Telemarketing and Consumer Fraud and Abuse Prevention law) as follows:
(4) The term ?telemarketing? means a plan, program, or campaign which is conducted to induce purchases of goods or services, or a charitable contribution, donation, or gift of money or any other thing of value, by use of one or more telephones and which involves more than one interstate telephone call. The term does not include the solicitation of sales through the mailing of a catalog which?
(A) contains a written description, or illustration of the goods or services offered for sale,
(B) includes the business address of the seller,
(C) includes multiple pages of written material or illustrations, and
(D) has been issued not less frequently than once a year,
where the person making the solicitation does not solicit customers by telephone but only receives calls initiated by customers in response to the catalog and during those calls takes orders only without further solicitation.
The term "telephone solicitation" is defined in 47 USC Section 227(a)(3), which is part of the Telephone Consumer Protection Act, as follows:
(3) The term ?telephone solicitation? means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message
(A) to any person with that person?s prior express invitation or permission,
(B) to any person with whom the caller has an established business relationship, or
C) by a tax exempt nonprofit organization.
The term "unsolicited advertisement" is defined in 47 USC Section 227(a)(4), which is part of the Telephone Consumer Protection Act, as follows:
The term ?unsolicited advertisement? means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person?s prior express invitation or permission.
The term "established business relationship" means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber's purchase or transaction with the entity within the eighteen months immediately preceding the date of the telephone call or on the basis of the subscriber's inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party. It is limited in duration to eighteen months from any purchase or transaction and three months from any inquiry or application.
The concept of "inquiries" includes only inquiries about products and services. A consumer does not become fair game for telemarketing under the EBR exception merely by calling and asking about your hours or locations, for example.
The concept of "prior express permission" requires a signed, written agreement between the consumer and you which states that the consumer agrees to be contacted by you, and the phone number agreed upon for the contact to the consumer should be listed. The "express permission" vanishes if and when the consumer asks to be placed on your internal DNC list.
The term "personal relationship" refers to an individual personally known to the telemarketer making the call and would include family members, friends and acquaintances. The test is whether a reasonable consumer would expect calls from such a person because they have a close, or, at least, firsthand relationship.
First published on 01/01/2000