Telemarketing Laws: B2b Exemption Or Loophole?

Telemarketing laws in the United States are strictly regulated, and non-compliance can result in hefty fines and legal repercussions. The Federal Trade Commission's Telemarketing Sales Rule (TSR) provides law enforcement tools to combat telemarketing fraud and gives consumers added privacy protections and defences against unscrupulous telemarketers. While business-to-business (B2B) telemarketing calls are exempt from some TSR provisions, they are not exempt from all telemarketing rules. B2B telemarketers must still obtain prior express consent, comply with calling time restrictions, and adhere to other behavioural rules. Additionally, B2B calls are not exempt from the Telephone Consumer Protection Act's (TCPA) wireless dialling rules when using an automatic telephone dialling system. Therefore, it is crucial for B2B telemarketers to understand and comply with both federal and state telemarketing laws to avoid penalties and maintain positive relationships with potential clients.

B2B telemarketing and cell phones

The Telephone Consumer Protection Act (TCPA) rule against calling cell phone numbers with automatic telephone dialing systems applies to B2B calls. This means that prior express written consent is required to call a business wireless number using an automatic telephone dialing system. Simply because a business owner has placed their number online or in a business directory does not mean consent to dial has been given.

It is important to note that many professionals use their personal phones for work, which means these numbers could be protected under the TCPA from telemarketing. Therefore, businesses need to verify whether a number is purely for business before assuming it is safe to call without consent for telemarketing purposes.

Assuming that all business numbers are exempt from TCPA restrictions for telemarketing is a risky strategy. Not every number associated with a business is suitable for telemarketing. Some individuals may list their personal mobile numbers as contact points for their businesses, especially in small companies or sole proprietorships, making them vulnerable to telemarketing. Without proper verification, calling these numbers for telemarketing could violate TCPA regulations.

To avoid this, businesses should regularly train their employees on the rules surrounding telemarketing. This training should cover all compliance standards and how to apply them in day-to-day operations. It is also important to implement effective tracking systems that can manage consent and handle do-not-call requests. These systems will ensure that individuals' choices to not be contacted again are respected and help maintain accurate records.

In summary, while B2B telemarketing calls are exempt from some rules and restrictions, they are not exempt from the TCPA rule against calling cell phone numbers with automatic telephone dialing systems. Businesses must obtain prior express written consent to call business wireless numbers using an automatic telephone dialing system. To avoid legal issues and build trust with clients, it is essential to verify that a number is purely for business use before assuming it is exempt from TCPA restrictions.

DNC lists and B2B telemarketing

The National Do Not Call Registry is a list of phone numbers from consumers who have indicated their preference to limit the telemarketing calls they receive. The registry is managed and enforced by the Federal Trade Commission (FTC), the nation's consumer protection agency. While the TSR covers any plan, program or campaign to sell goods or services through interstate phone calls, most B2B telemarketing calls are exempt from the TSR and the National DNC Registry rules. However, this exemption only applies when the telemarketing call is made to a business line and relates directly to the business's operations.

Despite this, it's important to note that not every state exempts B2B telemarketing calls under state law. In some jurisdictions, B2B telemarketers must register and place a bond before making calls. Additionally, B2B calls are not exempt from FCC wireless dialling rules when using an automatic telephone dialling system. Marketers must be aware of whether the number they are dialling is a wireless number, a landline, or a business phone that is also used for personal calls.

To ensure compliance, businesses must separate campaigns targeting business consumers from those targeting individual consumers. B2B telemarketers should also scrub against national and state consumer DNC lists, especially considering the risks associated with mixed-use telephone lines.

To summarise, while B2B telemarketing calls are generally exempt from the TSR and National DNC Registry rules, there are important exceptions and variations in state laws that must be considered to ensure compliance.

B2B telemarketing and state licensing

The US Federal Trade Commission's Telemarketing Sales Rule (TSR) includes regulations to support both law enforcement and consumers. While the TSR applies to most telephone calls between a telemarketer and a consumer, business-to-business (B2B) telemarketing calls are generally exempt from the TSR and Do Not Call (DNC) registries. However, this exemption only applies when the telemarketer is inducing a sale from a "business entity". If a telemarketer solicits consumers at their place of business, this is not considered a B2B solicitation and is subject to the TSR.

In addition to federal regulations, many states have their own telemarketing rules, which can be more stringent than federal law. While B2B telemarketing calls are exempt from the national DNC list law, this exemption does not apply in every state. In some jurisdictions, B2B telemarketers must register and place a bond before calling into or from those states.

To comply with B2B telemarketing regulations, it is important to understand the criteria that classify a call as B2B. These include:

• The call is made to a business line.
• The purpose of the call relates directly to the business's operations.
• Both parties have an established business relationship.

Even though B2B telemarketing calls are exempt from certain restrictions, obtaining consent before making unsolicited calls is crucial. This shows respect for the other party's time and willingness to engage. It is also important to remember that consent can be withdrawn at any time, so keeping clear records of consent and preferences is essential for maintaining positive relationships and compliance with telemarketing regulations.

In terms of state licensing, approximately 30 states have state-specific licenses for call centres, and some of these states also require individual sales agents to obtain telemarketing licenses. While there are many exemptions to these requirements, it is important to note that these exemptions vary by state. Some states that exempt B2B calls from licensing requirements include Alabama, Arizona, Delaware, Florida, Kentucky, Mississippi, Montana, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Washington, West Virginia, Wisconsin, and Wyoming. However, it is important to consult with a legal professional to confirm whether your business qualifies for any exemptions.

Disclosures and other behavioural rules

• Time of day curfews, holiday restrictions, and oral phone disclosures: In many states, B2B telemarketers must adhere to specific calling hours and refrain from calling on holidays. They are also required to make certain oral disclosures during outbound sales calls.
• Honouring opt-outs: B2B telemarketers must respect the wishes of individuals who have opted out of receiving telemarketing calls. This helps maintain positive relationships and reduce the risk of legal issues.
• Obtaining consent: Prior consent is essential, even when calling business lines. B2B telemarketers should obtain explicit consent before making unsolicited calls to ensure respect for the recipient's time and willingness to engage.
• Maintaining accurate records: B2B telemarketers are required to keep detailed logs of all telemarketing calls, including dates, times, and outcomes. This helps prove adherence to relevant regulations during audits or inspections.
• Training and education: Regular training is vital to ensure employees are up to date with the evolving rules and regulations. It is crucial that they understand how to apply these rules in their daily operations.
• Consulting legal experts: B2B telemarketers should regularly consult legal professionals to tailor their practices to current laws and avoid unintentional violations.
• Compliance with TCPA and TSR: The Telephone Consumer Protection Act (TCPA) and the Telemarketing Sales Rule (TSR) are crucial federal telemarketing laws that B2B companies must comply with. TSR, for instance, requires telemarketers to provide certain disclosures, including the purpose of the call, the identity of the seller, and the nature of the goods or services offered.

Compliance tips for B2B telemarketers

B2B telemarketing is exempt from some telemarketing rules but not all. For example, B2B telemarketing calls are subject to the same TCPA wireless calling restrictions as B2C calls. To ensure compliance with telemarketing laws in the USA, B2B companies can take several important steps:

• Obtain prior express written consent: This is required for telemarketing calls and text messages to mobile phones.
• Check the National Do Not Call Registry: This is a list of phone numbers that telemarketers are not allowed to call. It is important to check this list regularly and ensure that you are not contacting people who have requested not to be called.
• Follow state laws: Make sure you are aware of and comply with state telemarketing laws in all states where you do business. Some states, like California and Florida, have particularly strict laws governing telemarketing. These laws may include registration requirements, call time restrictions, and other guidelines.
• Train your staff: Ensure that your telemarketing staff are trained on telemarketing laws and regulations, including the TCPA and TSR. Regular training is key, and it's not a one-time deal. Laws change, so your team's knowledge must too. Training should cover all compliance standards and how to apply them in daily operations.
• Implement effective tracking systems: These systems should manage consent and handle do-not-call requests seamlessly. They ensure that you respect individuals' choices not to be contacted again and help maintain accurate records, proving compliance if questioned.
• Consult with legal experts regularly: Tailoring your telemarketing practices to current laws protects your business from unintended violations. Legal professionals can provide insights into complex regulations that might otherwise be overlooked. They can advise on setting up procedures that comply with the latest requirements.

Additional Compliance Tips

• Maintain accurate records: These records prove adherence to telemarketing regulations during audits or inspections. Companies should keep detailed logs of all telemarketing calls, including dates, times, and outcomes. Documentation should also include copies of expressed consents or oral authorizations received over calls.
• Be clear and honest: Transparency builds trust with customers. Always be clear and honest in your calls, telling the truth about who you are and what you offer.
• Adopt technology for better compliance management: Use telemarketing software that tracks calls and stores important data safely. This can help with managing subscription accounts, documenting outbound calls, and keeping all information at hand if needed for legal reasons or customer inquiries.
• Keep up with regulations: Regulations change often, so it's important to keep an eye on new laws affecting telemarketing to keep your business safe from penalties. Subscribe to newsletters or join forums related to B2B marketing and telemarketing law changes.

Frequently asked questions