The following is a very preliminary review of the basic provisions of the new Do Not Call rules adopted by the FTC and the FCC. A more detailed analysis of both these rules and how they impact funeral service will be available in the next several weeks. In the meantime, this is designed to simply alert you to the fact that preneed telemarketing sales calls will be dramatically impacted by these new rules when they go into effect this fall.
FCC DO NOT CALL REGISTRY
On June 26th, the Federal Communications Commission (FCC) adopted changes to its Telephone Consumer Protection Act of 1991 regulations. (TCPA) by establishing a national Do Not Call registry. Unlike the FTC Do Not Call registry, the FCC registry covers both interstate and intrastate telemarketing calls.
The FCC registry will be implemented in conjunction with the FTC registry when it goes into effect October 1. Consumers can register now but telemarketers are not bound by the new rules until October.
In addition to the Registry, the FCC also adopted restrictions on the use of predictive dialing, blocking consumer caller id information and unsolicited faxes. It also allows consumers to prohibit telemarketing sales calls from a specific company yet continue to receive calls from others.
There are several exemptions to the restrictions outlined in this rule. The first is an existing business relationship exemption that allows telemarketers to contact a customer for 18 months after a business transaction and 3 months after an inquiry or application. However, a consumer prohibiting a specific company from calling negates this exemption. The other is an exemption for consumers who have given specific written permission to be solicited by a company either by phone or by fax. Also, the Do Not Call Registry does not apply to tax-exempt, non-profit, charitable organizations or religious or political calls.
The FCC Do Not Call Registry does not pre-empt state registries but it will coordinate with the states to “harmonize” their lists with the national list. However, all state do not call registries must include those consumers who are on the FCC registry from that state. Moreover, if a state law is not as stringent as the federal rule, the federal rule will automatically preempt it.
FTC DO NOT CALL REGISTRY
The Federal Trade Commission (FTC) has amended its Telemarketing Sales Rule (TSR) to allow consumers to sign up for a national Do Not Call Registry that will prohibit unsolicited interstate telemarketing sales calls. While consumers can sign up for the registry now, it will not become effective for telemarketers until September 1. Enforcement will begin in October.
The amended TSR covers all telemarketers who solicit consumers to sell any goods or services or who provide or offer to provide or arrange to provide goods or services to consumers in exchange for payment through interstate phone calls. This includes third-party telemarketers who solicit on behalf of any exempt companies such as long distance phone companies, airlines and insurance companies operating under state regulations.
Exemptions to the FTC’s Do Not Call registry relating to an established business relationship and prior written permission as reflected in the FCC’s rule apply here as well. As does the specific company solicitation prohibition.
IMPACT FOR FUNERAL SERVICE
Under the current “Face-to-Face” exemption, interstate preneed sales calls and callers are exempt from the provisions of the FTC Telemarketing Sales Rule. This is based on the fact that most, if not all, preneed sales are not consummated on the phone but rather as a result of a personal visit from the seller to the consumer.
However, this exemption DOES NOT apply to the new Do Not Call Registry and its related provisions. Under it, all interstate preneed telemarketing sales call and marketers are subject to its requirements.
With regard to the new FCC Do Not Call Registry and related provisions, all interstate and intrastate preneed telemarketing sales calls are subject to its requirements as well.
Therefore, as of September 1 for the FTC rules and October 1 for the FCC rules, all preneed sales calls and telemarketers will be subject to the new Do Not Call Registries and their related provisions irrespective of any other provisions or exemptions of the TSR or TCPA. This will have a far-reaching and dramatic impact on preneed sales and sellers. As a result, it will have a significant financial impact on those funeral homes and cemeteries whose use preneed sales calls as a primary or major part of obtaining new business.
REQUIREMENTS ON SOLICITORS
Starting in September, telemarketers will have access to the FTC national “do not call” registry. Telemarketers will be required to “scrub” their call lists against the registry at least once a calendar quarter to remove all numbers that have registered with the FTC or the FCC. The FTC, which will oversee enforcement, will have a fully automated online system for telemarketers to use. It will be secure, but will require a telemarketer to provide basic identification information on itself and all sellers it represents. An annual fee will be charged based on the number of area codes that the company accesses.
After the registry takes effect and enforcement commences in October, a consumer who has registered and who receives a solicitation may complain to the FTC. Violations can be fined up to $11,000 per incident.
NFDA will be providing more information on compliance and enforcement after the FTC and the FCC publish additional details.
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