About 140 million phone numbers are listed on the National Do Not Call (DNC) registry, but confusion remains for telemarketers and consumers, particularly regarding cell phones. Here are the facts:

  • The DNC accepts registrations from cell phones and land lines, but there is no separate DNC registry for cell phone numbers.
  • Federal Communications Commission regulations prohibit telemarketers from using automated dialers to call cell phones. It's probably not necessary for a consumer to register a cell number on the DNC to be protected from telemarketing calls.
  • As of January, 2007, the use of prerecorded messages via automated dialers — messages automatically left on a consumer's voice mail or played when a consumer picks up the call from an automated dialer — are all but prohibited. Even if the contractor has an existing business relationship with the consumer, prerecorded messages should be avoided. To leave a prerecorded message on a telephone line, the merchant must have the consumer's express written consent.
  • Many contractors already know that with the proper written consent, a consumer registered on the DNC can still be telemarketed. However, the “standard” telemarketing authorization used by some contractors will not work in this case. If a telemarketing consent is to apply to prerecorded messages, it must specifically inform the consumer that he or she could receive prerecorded messages, and the consent must acknowledge that the consumer is OK with that.

Whether or not you can share telemarketing leads between corporate affiliates — companies related through common ownership — is subjective. The greater the similarity as to name of the entities and type of goods sold, the higher the likelihood that a telemarketing lead can be exchanged between the two companies without concern. For example: Alpha Corp. Siding shares leads with its affiliate, Alpha Corp. Kitchen Remodeling, and they can both telemarket each other's customers. Similar goods, similar names — at least as it seems to the consumer. But, if Alpha Corp. Siding is sharing telemarketing with an affiliate called Prostar Remodeling, that is likely to cause problems. The same result would apply if Alpha Corp. Siding shared telemarketing with an affiliate called Alpha Software Solutions. The products sold by the two companies are too dissimilar — at least from a consumer's point of view.
D.S. Berenson is the Washington, D.C., managing partner of Johanson Berenson LLP (www.homeimprovementlaw.com), a national law firm specializing in the representation of contractors and the home improvement industry. Contact him at 703.759.1055 or info@johansonberenson.com.

This article is for informational purposes only and should not be construed as legal advice.