FTC to FCC: Blame the Seller for DNC Violations

The Federal Trade Commission recently urged the Federal Communications Commission to hold the sellers of goods and services responsible for sales calls made by others on their behalf.

The “Do Not Call” rules established under the authority of the Telephone Consumer Protection Act of 1991 are currently enforced by two government agencies: the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC).  However, the two agencies differ in their application of the DNC rules.   In an effort to unify the disparate approaches to enforcement, the FCC recently published a request for public comments regarding how its TCPA enforcement procedures should be modified.

Having brought 59 enforcement actions since the DNC rules went into effect in 2003, the FTC naturally had a few opinions on the subject, which it was generous enough to share.

In its request for comments, the FCC first asked for opinions on the issue of whether a call placed by an entity that markets a seller’s goods and services qualifies as a call “made on behalf of, and initiated by, the seller, even if the seller does not physically place the call,” thus triggering liability under the TCPA.  The FTC gave a definitive “yes” to this question, stating that the plain meaning of “on behalf of” should be used when determining if illegal conduct took place.

The FCC also solicited opinions on what facts help determine whether a telemarketing call is made “on behalf of” a seller, thus triggering liability under the TCPA.

In its response to this question, the FTC said the question turned upon “whether the marketer’s solicitations are in the seller’s ‘interest’ or ‘aid’ or for the seller’s ‘benefit.’  The FTC went on to say that this analysis “ensures that sellers will not be rewarded for turning a blind eye to those who market sellers’ goods or services and whose marketing efforts inure to sellers’ benefit.”An opposite interpretation would “completely subvert Congress’s privacy-protection goals,” according to the FTC, because sellers could avoid liability by having others place calls on its behalf.

Read the text of the FTC’s comment to the FCC for further information. 

My Thoughts:  According to FTC Chairman Jon Leibowitz, enforcement of the DNC is “absolutely critical to consumers who want a stop to the telemarketing and robocalls that interrupt their dinner hour.”  I agree that it stinks to have the phone ring when your fork is halfway to your mouth, but it is interesting to observe that those very same consumers who complain the loudest about telemarketing complain even louder about the dismal state of the economy and the high rate of unemployment.

These consumers appear to be blindly ignorant of the fact that urging our government to target telemarketers further drives unemployment, as these companies employ thousands of Americans to sell goods and services that help secure the jobs of many  thousands more.


Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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