The Comprehensive Marketing Compliance Checklist for 2023

When considering your business outlook for 2023, have you accounted for the laundry list of ever-changing marketing compliance regulations that your sales organization must follow to avoid costly fines and penalties?

At a time when customer experience and consumer trust has never been more integral to the success of a business, the consequence of contacting a consumer without consent or in violation of a Do Not Call (DNC) list requirement can be detrimental. Not to mention, it’s budget planning season, and it’s safe to assume that your financial planning doesn’t include costly DNC and Telephone Consumer Protection Act (TCPA) violations at the expense of your revenue and brand reputation.

Have you considered that you’re at risk of violations – $500 to $1,500 per dial – and diminishing consumer trust if you have not safeguarded your organization with the following compliance checklist?

2023 Marketing Compliance Checklist

1- Federal Do Not Call Regulations

The National Do Not Call Registry allows consumers to register their residential and wireless phone numbers to prevent telemarketers from contacting them and serves as a database for businesses to know which numbers not to contact. If a consumer receives a call to their number and that number has been registered on the National Registry for 31 days, they are able to report the violation to the Federal Trade Commission (FTC).

Further, there are a myriad of state and federal laws, rules and regulations prohibiting businesses from making robocalls – prerecorded or automated phone calls – to consumers unless they have received prior expressed written consent from the consumer. Following DNC regulations is critical for your business, as placing an illegal call to a consumer or making an illegal robocall can put your organization at risk for fines up to $43,792 per call.

2- Telephone Consumer Protection Act

The TCPA was established to regulate telemarketing calls and text messages in the U.S. and protect consumers from being bombarded with unsolicited and prerecorded messages. The law places several regulations on the hours in which business can conduct telemarketing efforts to consumers and limits the use of prerecorded messages and automatic dialing.

If your organization violates the guidelines of the TCPA, you are at risk of the following:

• $500 for each violation of the National DNC Registry
• $500 for each violation of the TCPA
• $1,500 per phone call or text message if it is proven that your business knowingly and willfully violated the TCPA

3- Internal Do Not Call List

How is your organization maintaining your internal do-not-call list?

Telemarketers are responsible for maintaining their own do-not-call lists, meaning full accountability falls on your team to honor consumers request to be put on your do not call list. If properly updating and maintaining this list with subscribers’ names and phone numbers within 30 days of a request is a cause for concern with your outbound marketing efforts, an automated compliance solution may be right for your organization.

4- Federal Do Not Call List

As the lines blur between personal and business phones with professionals choosing remote or hybrid work more than ever before, an increasing amount of phone numbers are being added to The National Do Not Call Registry daily. Ensuring that your internal system is up to date with the National Registry and having a way to automatically flag do-not-call phone numbers and block calls is integral, as unwanted calls made to numbers of the National Register after 31 days can be reported to the FTC.

Having a system to automate this process can save your organization valuable time spent on manually cross-checking numbers against the DNC registry, and millions of dollars in fines for DNC  .

5- State Do Not Call Lists

As of 2022, only twelve states operate their own do-not-call lists. However, it is essential to recognize that consumers in these states can register personal phone numbers on their state do-not-call lists AND the National Do Not Call Registry. Ensuring that your sales organization is compliant with both the National Registry and individual state lists is critical in preventing do-not-call violations.

The following states operate their own do-not-call lists: Colorado, Florida, Indiana, Louisiana, Massachusetts, Mississippi, Missouri, Oklahoma, Pennsylvania, Tennessee, Texas, and Wyoming.

6- Robocalls and ATDS Restrictions

If utilizing an automatic telephone dialing system (ATDS) for outbound calling, the TCPA requires that you obtain prior express written consent for telemarketing calls and text messages to residential phone numbers, and prior express consent for informational calls and text message to these numbers.

It is significant to note that the TCPA’s definition of ATDS has changed over time. The law currently defines an ATDS as “equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a random or sequential number generator, and (B) to dial such numbers.”

7- Wireless Restrictions

As more people are choosing remote or hybrid work and using their personal wireless numbers to conduct business, organizations must be more cognizant than ever of wireless restrictions. The TCPA prohibits telemarketers from calling wireless phone numbers using an ATDS unless the caller has obtained prior express consent, or if the call is being placed for emergency purposes.

Seems straight forward enough, right? Not so much. TCPA wireless restrictions apply to all wireless numbers, residential and business. This means that even if a number is being used for business purposes and is provided to you as such, you are at risk of a violation.

8- B2B: Business vs. Residential Phone Numbers

Contacting a business number does not enact TCPA or DNC restrictions. However, even if a wireless number is being used for business purposes, you must obtain prior consent to contact the number utilizing an ATDS.

Your organization can look up a number to identify whether it is a business or consumer line. However,

9- Emergency Purposes Exemptions

Under the TCPA’s emergency purposes exemptions to consent requirements, calls made to both residential landlines and mobile phones under “emergency purposes” do not require consent, with “emergency purposes” defined as “calls made necessary in any situation affecting the health and safety of consumers.”

For example, a state of emergency may be triggered in the case of a hurricane, or a public health emergency like COVID-19, for which the FCC issued specific guidance regarding emergency purposes exceptions.

Additionally, it is important to be aware of individual state guidelines. In New York state, the New York Disaster Emergency Restrictions under the Nuisance Call Act mandate that it is unlawful for telemarketers doing business in the state to knowingly place an unsolicited telemarketing call to any person during a declared state of emergency.

What does this mean for your business? Like Federal and State do not call lists, it is important to keep up with both federal and state emergency purposes exemptions that may

10- Curfews and Holiday Calling Hours 

Regarding curfews, be aware that the TCPA prohibits businesses from calling consumers before 8 am or after 9 pm.

Businesses must also be aware that calls to phone numbers in certain states could result in violations of that specific state’s holiday calling solicitation restrictions. Different states have restrictions on various holidays each month, so it is critical that your organization stay in-the-know with these monthly changes. Trying to figure out who you can and can’t call on your own can expend countless time and resources. On the other hand, a automatically run every phone number against TCPA, state, federal, and other do-not-call lists so you don’t have to worry about it, or slow down your sales process.

11- Reassigned Phone Number Database

Countless businesses face lawsuits every year due to accidentally calling or texting reassigned phone numbers. Under the TCPA, consent is associated to the consumer being called, not the phone number. Therefore, callers will be held liable for soliciting phone numbers for which they previously obtained consent to contact if the number has since been reassigned. To avoid calling reassigned numbers, organizations must scrub their contact databases to identify these numbers.

If this sounds complicated to manage, it’s because it is. Utilizing a compliance solution that can conduct a reassigned number scrub and identify these numbers is the only way to play it safe and avoid violations.

12- Inquiries, Purchases, and EBRs 

If your organization is placing outbound calls to customers, note that exemptions can be claimed against the National Registry for Established Business Relationships (EBR). An EBR exemption can be claimed for calls placed to do-not-call numbers in the following scenarios:

• Calls placed to do-not-call numbers where there is a relationship between the entity making the call and a consumer, based on the consumer’s purchase or transaction with the entity making the call within the 18 months immediately preceding the date of the telephone call, and neither party has previously terminated the relationship; or
• Calls placed to do-not-call numbers on the basis of the consumer’s inquiry or application regarding products or services offered by the entity making the call within the 3 months immediately preceding the date of the call, and neither party has previously terminated the relationship.

Calls made to numbers that have given prior express written consent will also be exempt from TCPA violation penalties.

Is your organization protected from dangerous TCPA and DNC violation fines and penalties?

While TCPA and DNC guidelines are accessible to all organizations, these rules and regulations have proven difficult to manage. Year after year, countless businesses fall victim to millions of dollars of fines and penalties and the accompanying insurmountable damage to customer relationships and brand trust.

In the first three months of 2022 alone, there were 360 violations of the TCPA (Web Recon).

With rules and regulations constantly changing, staying up to date with the latest legislation, including federal and state specific calling hour timeframes, holiday and state of emergency restrictions, internal do-not-call data and exemption criteria can be tricky for leaders that are managing sales and marketing outreach for their organizations.

Don’t run the risk of trying to navigate the ever-evolving TCPA and DNC rules on your own. Instead, see how Gryphon can help.