The Federal Communications Commission (FCC) yesterday announced the largest Do-Not-Call settlement it has ever reached.  Under that settlement, a major telecommunications company will pay $7.5 million for the mobile wireless company’s alleged failure to honor consumer requests to opt out of phone and text marketing communications.  In addition, the company has agreed to take a number of steps to ensure compliance with the Commission’s Do-Not-Call rules going forward. Those steps include:

  • Developing and putting into action a robust compliance plan to maintain an internal Do-Not-Call list and to honor Do-Not-Call requests from consumers
  • Developing operating procedures and policies to ensure that its operations comply with all company-specific Do-Not-Call rules
  • Designating a senior corporate manager to act as a compliance officer
  • Implementing a training program to ensure that employees and contractors are properly trained in how to record consumer Do-Not-Call requests so that the names and phone numbers of those consumers are removed from marketing lists
  • Reporting to the FCC any noncompliance with Do-Not-Call requests
  • Filing with the FCC an initial compliance report and then annual reports for an additional two years

One of the reasons that the FCC came down so hard on the company was that it was already acting under a 2011 Consent Decree resolving an earlier investigation into similar consumer complaints.  “Ah,” you might say, “this then has no relevance to our company; we have never even been investigated a first time by the Commission.”  While that may be true, this still might be a good time to compare your company’s own internal plan for honoring Do-Not-Call requests with the plan being required of the entity that settled with the FCC. 

If your company’s current plan is missing any of the first four elements listed above, you might want to consider adding them. By laying out these elements, the FCC is sending a strong signal regarding what it considers to be reasonable efforts by an entity to ensure that its agents and employees are well aware of what is expected of them when making marketing calls.

Companies would do well to consider adopting and enforcing a comprehensive compliance plan now, and not wait to have one imposed if some disgruntled consumers complain to a regulatory agency.  At a minimum, adoption and adherence to a comprehensive compliance program would go far in protecting against any trebling of damages in a putative class action, and be a strong mitigating factor in any investigation down the road by an enforcement agency.