The National Do Not Call Registry and company-specific lists

The FCC's rules at 47 C.F.R. § 64.1200(c) and (d) implement 47 U.S.C. § 227(c), and § 227(c)(5) lets a person who gets more than one violating call in a year sue for up to $500 per call.

Two lists

Section 227(c) directed the FCC to protect residential subscribers from telephone solicitations they object to. The Commission's answer, refined over a decade, is a pair of obligations. A seller must not make a telephone solicitation to a residential number that is on the National Do Not Call Registry, unless an exemption applies. And a seller must honour a request from any person not to be called again, by placing the number on its own internal do-not-call list and keeping it there. Cell phone numbers may be placed on the national registry and the FCC presumes that wireless subscribers who register are residential subscribers.

The National Registry

The registry opened in June 2003 and is operated by the FTC under the Telemarketing Sales Rule, with the FCC's rules mirroring it for callers outside the FTC's jurisdiction. Consumers register at donotcall.gov. Since the Do-Not-Call Improvement Act of 2007, registrations do not expire. Sellers and telemarketers access the registry through a subscription at telemarketing.donotcall.gov, paying an annual fee per area code above a small free allowance; the subscription account and its download history are the records a seller uses to show it scrubbed.

The 31-day scrub

A number is protected once it has been on the registry for 31 days. A seller satisfies the rule only if it uses a version of the registry obtained no more than 31 days before the call. In practice that means downloading the registry for every area code called at least monthly and suppressing matches before each campaign. The rule's safe harbour, described below, depends on that process existing in writing and being followed.

Established business relationship

The registry prohibition does not apply to a solicitation to a person with whom the seller has an established business relationship, defined in § 64.1200(f)(5). The relationship arises from a purchase or transaction within the 18 months before the call, or from an inquiry or application within the three months before the call. It ends if the person asks not to be called, regardless of the 18-month or three-month period. The exemption also does not apply to prerecorded telemarketing calls, for which the FCC removed the EBR exemption in 2012. A prior express invitation or permission, which must be in writing and signed, is a separate exemption.

Company-specific lists

Under § 64.1200(d), no person may initiate a telephone solicitation, including by prerecorded voice, unless it has instituted procedures for maintaining a list of persons who request not to receive calls. The rule lists the minimum standards: a written policy available on demand, training of personnel, recording the request and placing the number on the list at the time it is made, honouring it within a reasonable time not exceeding 30 days, keeping it for five years, identifying the seller and providing a telephone number or address during the call, and applying the list across affiliates where the consumer would reasonably expect them to be included. A do-not-call request made to one vendor calling on a seller's behalf binds the seller.

The 2024 revocation rules shortened the period for honouring a request to revoke consent to ten business days; a do-not-call request to the company itself is subject to the same practical expectation. A seller that keeps running a list after a request is the paradigm willful violator.

Calling hours and identification

Under § 64.1200(c)(1), no telephone solicitation may be made to a residential subscriber before 8am or after 9pm, local time at the called party's location. Under § 64.1200(d)(4), a person making a telephone solicitation must provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is made, and a telephone number or address at which that entity may be contacted. Several states set narrower hours; Florida and Oklahoma end at 8pm.

The safe harbour

Section 64.1200(c)(2)(i) excuses a call to a registered number made in error if the seller can show that, as part of its routine business practice, it has written procedures to comply with the do-not-call rules, trains its personnel in them, maintains its own do-not-call list, uses a process to prevent solicitations to registered numbers that includes a registry version no more than 31 days old and records documenting that process, and makes the call in error. All five elements must exist before the call. A seller with no written procedure cannot claim the harbour by showing the call was a mistake.

The private right of action

Section 227(c)(5) allows a person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations to sue for an injunction and for actual loss or up to $500 per violation, trebled for willful or knowing violations. The "more than one call" threshold is distinctive: a single registry call is a violation but does not by itself support a private claim, whereas a second call within a year does. Courts have certified class actions on registry claims because the proof is largely documentary: the registration date, the call records, and the absence of an exemption. Krakauer v. Dish Network, L.L.C., 925 F.3d 643 (4th Cir. 2019), affirmed a class judgment on calls made by a retailer on Dish's behalf to registered numbers.