On December 22, 2018, due to the lapse in government appropriations, a partial federal government shutdown went into effect.  With no end in sight, this partial shutdown has had important effects on all industry sectors.  For companies trying to reach prospective customers, the shutdown presents unique challenges, as the National Do Not Call (“DNC”) Registry went offline on December 28, 2018, and the Federal Trade Commission has confirmed that it will remain unavailable to telemarketers and companies who use telemarketing services “until the government re-opens.”  Making the DNC registry unavailable to telemarketers raises important legal and practical questions for businesses.

Background

Created in 2003, the National DNC Registry is under the purview of both the FTC and the FCC.  The FCC is in charge of implementing regulations related to the DNC Registry and use of the DNC Registry by callers engaged in “telephone solicitation” activities.  Those regulations generally prohibit companies from placing telemarketing calls to (a) consumers whose numbers are listed in the DNC Registry, unless an “established business relationship” (“EBR”) exists; and (b) those consumers who requested to be added to the company’s internal, company-specific DNC list.  Under the FCC’s DNC safe harbor rules, companies must ensure that they download a new version of the National DNC Registry at least every 31 days and scrub against the latest version to ensure they are not placing calls to new registrants’ phone numbers. 

Generally, a company’s telemarketing department has policies in place that comply with these DNC rules, allowing the company to contact consumers in a lawful manner.  However, with the DNC Registry now shut down due to a lack in government funding, companies are missing the most critical tool they need to ensure compliance continues: the DNC Registry itself.

Without access to the final pre-shutdown version of the National DNC Registry, companies may not know what consumers they can and cannot contact, meaning that they run the risk of calling a number that was placed on the DNC list in the days preceding the site’s shutdown.  This does not mean that companies need to halt all outbound telemarketing campaigns during this period, however.  Below are some tips on how businesses can address the unavailability of the National DNC Registry if the government shutdown persists.

Practical Tips for Calling During a Prolonged Government Shutdown

1. Downloaded National DNC Registry Lists Remain Valid for 31 Days

Under the FCC’s rules, to be eligible for the DNC safe harbor, companies must download and scrub against the DNC Registry at least every 31 days, unless an exemption applies. With the DNC Registry shut down, this 31-day period is more important than ever before, as it means that companies may only continue to safely rely on the list they have for a limited period of time.  It is thus critical for companies to review how their scrubbing systems work and determine the date their relevant DNC list was obtained:

• If your company’s version of the National DNC Registry was obtained on December 28, 2018, the date the National DNC Registry was shut down, you can safely rely on that version of the list until at least January 28, 2019.  Even after that point, while your company may not necessarily be guaranteed the benefit of the DNC safe harbor because it is using a version of the list that is more than 31 days old, you may nevertheless determine that the risk of continuing to make outbound calls is minimal because it has not been possible for consumers to add new telephone numbers to the National DNC Registry since the time it was shut down.  Therefore, your company would be continuing to utilize the most current available data, and therefore run a low risk of calling a number that has been added to the Registry.

• However, if your company’s latest version of the DNC Registry was obtained any time before December 28, 2018, you must carefully evaluate whether to suspend some or all of your company’s telemarketing calls.  We specifically recommend that you suspend calls to any numbers that do not qualify for one of the DNC’s exceptions, such as the EBR exception, on the 31st day after your company downloaded its most recent version of the DNC Registry.  We know that outbound calling is important to many businesses.  Therefore, we encourage businesses confronting this issue to contact their attorney, a commercial vendor of DNC lists, or one of the authors of this Client Alert to explore options for obtaining the final pre-shutdown version of the DNC Registry.

2. Calls to Consumers with an Established Business Relationship Are Not Impacted by the Federal Shutdown

As a reminder, the National DNC Registry requirements do not apply to calls placed to a consumer if your company has an EBR with that consumer.  Under the FCC’s rules, a company has an EBR with a consumer if: (a) the consumer has entered into a transaction with the seller within the previous 18 months (known as a “Transactional EBR”) or (b) the consumer inquired about the seller’s goods/services within the previous 3 months (known as an “Inquiry EBR”).

Therefore, outbound calls to Transactional EBR or Inquiry EBR consumers may continue unimpeded during the government shutdown.

3. Companies Must Continue to Honor State and Company-Specific DNC Lists

The federal DNC provisions require companies to maintain internal, company-specific DNC lists.  Under these rules, telemarketing calls to consumers that request to stop being called are prohibited even if the company has an EBR with the consumer.  Moreover, some states maintain their own state-specific DNC lists.  The federal government shutdown does not impact the obligation of companies to scrub their outbound telemarketing calls against internal DNC lists and applicable state-specific lists.