July 2, 2013

"FTC Celebrates 10 Years of "Do Not Call" with a Record-Setting Settlement

Consumer Advertising Law Blog

Since the establishment of the National "Do Not Call" Registry on June 27, 2003, jointly administered by the Federal Trade Commission (FTC) and the Federal Communications Commission, the instance of unsolicited telemarketing calls interrupting family meals, important meetings, and primetime television has decreased. Why? The "Do Not Call" rules prohibit businesses from making telemarketing sales calls to consumers who have registered their number with the National "Do Not Call" Registry. Consumers can also request that a business not call them, putting these consumers on a business-specific "Do Not Call" list.

Each call to a consumer on either list can be considered a separate violation. Interfering with a consumer's right to be placed on a business-specific "Do Not Call" list also constitutes a violation of the rules. Each violation can trigger fines of up to $16,000. There is an "establishedbusiness relationship" exception for businesses calling existing customers or responding to potential customer inquiries even if those customers have numbers listed on the National "Do Not Call" Registry, but there is no exception if a customer requests that a business place him or her a business-specific "Do Not Call" list.

Although most businesses abide by these rules, there are still violators, and the FTC continues to bring enforcement actions. Indeed, very recently, the FTC initiated an action against Mortgage Investors Corporation (MIC), with whom it obtained a record-setting settlement on June 25, 2013 for $7.5 million.

MIC specializes in refinancing veterans’ home loans. Following thousands of consumer complaints about MIC's telemarketing sales practices, the FTC brought suit. According to the FTC's complaint, MIC made over 5.4 million calls to veterans on the "Do Not Call" Registry. When consumers told MIC they were on the Registry and/or asserted their right to be removed from MIC's call list, MIC continued calling and would transfer consumers to managers, who would continue to pitch MIC's refinancing services.

For this alleged conduct, the FTC charged MIC with violations of the TelemarketerSales Rule for MIC calls to consumers on the "Do Not Call" Registry, to consumers who requested not to be called, and for interfering with consumers' right to be placed on MIC's "Do Not Call" list, instead of being transferred to a manager. In addition, the FTC claimed MIC violated the Mortgages Acts and Practices-Advertising Rule (the MAP rule) and § 5(a) of the FTC Act by engaging in deceptive marketing and sales practices for misrepresenting the available refinancing terms and for misrepresenting its affiliation with the Veterans Administration.

What are the lessons from the fate of MIC? Besides not misleading consumers about a business' products or affiliations, the FTC has two "Do Not Call" takeaways for businesses from the MIC settlement:

  • Do not call means do not call. It does not mean consumers have to ask multiple times not to be called; nor does it mean consumers must follow an unnecessary set of procedures in order to exercise their rights.
  • Enforcement of the "Do Not Call" Registry is top FTC priority.

In other words, a business should abide by the "Do Not Call" registry and listen to consumers' wishes if they ask to be removed from a call list. The MIC settlement is only the latest example of the FTC's 10-year (and counting) commitment to preserving the sanctity of dinner time.

© Arnold & Porter Kaye Scholer LLP 2013 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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