Notices to Members

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Notice I-04-12

March 08, 2004

Members are Required to Comply with the FCC's National Do-Not-Call Rules

Effective October 1, 2003, the Federal Communications Commission (FCC), in conjunction with the Federal Trade Commission (FTC), established the National Do-Not-Call Registry. Although both agencies have adopted rules that prohibit telemarketers from calling any person who has registered his or her telephone number on the Registry (except under certain limited circumstances), NFA members are subject only to the FCC's rules. The purpose of this Notice is to highlight the requirements imposed by the rules on NFA Members.

Under the FCC's rules, the term telemarketer is defined very broadly and includes FCMs, IBs, CPOs and CTAs that make unsolicited calls to individuals for the purpose of encouraging the purchase of, or investment in, commodity futures or options contracts or related services.1 The Registry is nationwide in scope and covers both interstate and intrastate telemarketing calls.

In general, Members are prohibited from initiating any telephone solicitation2 to any residential telephone subscriber3 who has registered his or her telephone number on the National Do-Not-Call Registry, for a period of five years from the date the person registered their number. There are, however, several exceptions to this prohibition.

Members may call a number on the Registry if the Member has an established business relationship with the recipient of the call. An established business relationship exists under two sets of circumstances. In particular, any person who has made a financial transaction with the Member within the 18 months immediately preceding the date of the telemarketing call or any person who has contacted the Member to inquire about a product or service offered by the Member within the three months immediately preceding the date of the telemarketing call will be considered to have an established business relationship with the Member.4

Members may also contact persons who have registered their telephone number if the Member has a signed, written agreement with the person that states that the person agrees to be contacted by the Member. The agreement must include the telephone number where the calls may be placed.

Members may also call a family member, friend or acquaintance. A person will fall within the friend or acquaintance category if a reasonable person would expect a call from the caller because they have a close, or at least, a firsthand relationship.

Finally, Members have a safe harbor for inadvertent mistakes if the Member can show that as part of its routine business practices it meets certain standards. In particular, the Member must show: (i) it has written procedures that comply with the National Do-Not-Call requirements and has implemented those procedures; (ii) it trains its personnel, and any entity assisting it in its compliance, in those procedures; (iii) it maintains and records a list of telephone numbers that it may not contact; and (iv) it has a process to prevent calls to any telephone number on its do-not-call list and the National Do-Not-Call Registry using a version of the Registry obtained from the FTC5 no more than three months before the date any call is made and the Member maintains records documenting the process.6

Members are also prohibited from initiating any calls for telemarketing purposes to a residential telephone subscriber unless the Member has instituted procedures for maintaining its own list of persons who request not to receive telemarketing calls made by or on behalf of the Member (e.g. a company specific do-not-call list). In particular, a Member must have a written policy, available on demand, for maintaining this list. The Member must also train any personnel engaged in any aspect of telemarketing in the existence and use of the list. If a Member receives a request to be included on the Member's list (whether by separate request or as part of a solicitation), the Member must record the subscriber's name (if given) and the telephone number on the list at the time any request is made. Members must honor this request within a reasonable time not to exceed thirty days from the date of the request, and Members capable of honoring the request in less than thirty days must do so. This request must be honored for 5 years from the date the request is made. A residential subscriber's request to be included on this list will apply only to the Member making the call and not to affiliated entities unless the recipient of the call reasonably would expect the affiliate to be included given the identification of the caller and the product being advertised.7

Members must provide all called parties with the name of the individual caller, the name of the Member, and the telephone number or address where the Member may be contacted. If a telephone number is provided, it may not be a 900 number or any other number with charges that exceed normal local or long distance charges.

Members should also be aware that if they outsource telemarketing responsibilities to another entity, the Member remains fully responsible for ensuring that the other entity complies with the National-Do-Not-Call requirements when soliciting on behalf of the Member.

Members are also advised that this document is a summary of the National Do-Not-Call Requirements. Any question regarding these requirements should be directed to the FCC at 1-888-CALL-FCC (1-888-225-5322), press 0.

1 Members are subject to other requirements under the FCC's rules implementing the Telephone Consumer Protection Act of 1991. The requirements include restrictions on the use of automatic telephone dialers and a prohibition on calling residential telephone numbers between 9:00 p.m. and 8:00 a.m. A copy of the complete rules can be found at 47 U.S.C. section 227.

2 The term solicitation is defined to mean the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.

3 This includes telephone calls to wireless telephone numbers.

4 Established business relationships do not extend to a Member's affiliated entities unless the person would have reasonably expected the affiliate to be included.

5 The FTC is the agency responsible for maintaining the Registry.

6 The FCC's safe harbor also requires that telemarketers use a process to ensure that it does not use the do-not-call database for any purpose other than compliance with the requirements, purchases access to the relevant do-not-call data from the administrator of the national database, and does not participate in any arrangement to share the cost of accessing the national database. The Member must purchase the database from the FTC every three months even if it outsources telemarketing responsibilities to another entity.

7 The exception related to an established business relationship does not apply to a Member's own company specific do-not-call registry. Therefore, a Member may not call a person who falls within this exception if the person has requested that the Member not call them. Similarly, an express agreement between a Member and a person to allow the Member to call will be superseded by a subsequent do-not-call request.

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