Telemarketing and Do Not Call Registry

Sellers who make telemarketing calls to consumers must ensure that they comply with state and federal telemarketing laws, notably Ohio’s Telephone Solicitation Sales Act, the Federal Trade Commission’s Telemarketing Sales Rule, and the Telephone Consumer Protection Act of 1991, including their do not call provisions.

What is a telephone solicitation?

In general, a telephone solicitation is communication initiated by or on behalf of a telephone solicitor (telemarketer) or a salesperson and meant to induce the consumer to purchase goods or services.

What are Ohio’s telemarketing laws?

The Telephone Solicitation Sales Act (starting at Ohio Revised Code (ORC) Section 4719.01) requires certain telemarketing businesses operating inside and outside Ohio to register with the Ohio Attorney General and to post a bond before soliciting Ohio consumers. To determine whether registration is required, sellers should carefully review the definitions and exemptions of the law in ORC 4719.01.

What is required under Ohio’s Telephone Solicitation Sales Act?

Under the Telephone Solicitation Sales Act:

• Telephone solicitors may not block the disclosure of their telephone number on caller ID.
• A solicitor must state, within the first 60 seconds of a call, his or her real name, the company name, the purpose of the call, and the goods or services being sold.
• If a sale or agreement is made during the call, the telephone solicitor must (verbally) provide the consumer with the following information before requesting payment:
  • Solicitor’s street address and telephone number;
  • Total cost of the goods or services;
  • Restrictions, limitations, or conditions;
  • Refund/cancellation policy terms and conditions;<
  • For prize promotions, a description of the prize, terms, and conditions, and
  • The consumer’s rights under the law which require the telemarketer to either obtain a signed written confirmation or provide a 7-day notice of cancellation.
• Telephone solicitors who intend to offer prizes must provide notice to the Attorney General at least 14 days before making their calls.

When can a telemarketer collect payment?

The Telephone Solicitation Sales Act says that a sale is not valid until the sale is documented by either a signed written agreement or by providing a notice of cancellation. Specifically, telephone solicitors have the following two options for evidence agreements with consumers:

• Solicitors may accept a consumer’s payment for goods and services only after obtaining a signed written contract from the consumer which contains specific material terms which can be found at ORC 4719.07(F); o
• Solicitors may accept a consumer’s payment during the telephone solicitation, if they comply with the Federal Trade Commission’s Telemarketing Sales Rule method of confirming sales (16 C.F. R. part 310.3 to 310.05, available at www.ftc.gov) and they give an unconditional full refund for cancellations within 7 days after the consumer’s receipt of the goods and a NOTICE OF CANCELLATION which includes specific material terms and notice language which can be found at ORC 4719.07(H)(3).

Does the Ohio Attorney General enforce federal telemarketing laws?

Yes. The Attorney General has the authority to enforce the federal telemarketing laws, the Telemarketing and Consumer Fraud and Abuse Prevention Act which incorporates the Federal Trade Commission’s Telemarketing Sales Rule, and the Telephone Consumer Protection Act of 1991.

Do Not Call Registry

Businesses that wish to solicit customers by telephone must comply with the Do Not Calls restrictions of two very similar federal laws, the FTC’s Telemarketing Sales Rule and the Telephone Consumer Protection Act of 1991. Both federal statutes require businesses to access the National Do Not Call Registry, which is maintained by the FTC and to “scrub” or remove, registered numbers from their calling lists.

The laws also require businesses to maintain internal do not calls lists to track requests made by the consumers upon receipt of a call. The laws are enforced by the FTC, the Federal Communications Commission (FCC) and state officials. Ohio does not have a separate Do Not Call law, although the federal laws may be enforced in federal or state court by the Attorney General. Businesses that violate the do not call provisions may be ordered to pay damages of $500 per call $10,000 or more.

What calls are covered?

The do not call provisions cover interstate and intrastate phone calls. They cover any plan, program, or campaign to sell goods or services, including calls by telemarketers who solicit consumers on behalf of third-party sellers. The provisions also apply to sellers who are paid to provide, offer to provide or arrange to provide goods or services to consumers. Even if sellers make telemarketing calls infrequently and dial by hand, they generally must comply with the do not call provisions.

What calls are not covered?

The do not call provisions do not cover calls from political organizations, telephone surveyors, companies with which a consumer has an existing business relationship, or where a consumer has given express written permission to the organization or caller. Charitable organizations are not covered by the Telephone Consumer Protection Act but they are covered by the Telemarketing Sales Rule

If a call includes a telephone survey and a sales pitch, is it covered?

Yes. Callers purporting to take a survey, but also offering to sell goods or services, must comply with the do not call provisions. But if the call is for the sole purpose of conducting a survey, it is exempt.

How does the “established business relationship” provision work?

A company with which a consumer has an established business relationship may call for up to 18 months after the consumer’s last purchase, last delivery, or last payment, unless the consumer asks the company not to call again. In that case, the company must honor the request not to call.

If a consumer makes an inquiry or submits an application to a company, the company can call for three months. Once again, if the consumer makes a specific request to that company not to call, the company may not call, even if it has an established business relationship with the consumer. A consumer whose number is not on the national registry still can prohibit individual telemarketers from calling by asking to be put on the company’s internal do not call list.

How can I download the registry or get more information?

To download the registry, visit the FTC’s website, www.ftc.gov. To learn more, visit www.ftc.gov and www.fcc.gov.

Telemarketing and Do Not Call overview

• Covered telephone solicitors must register with the Ohio Attorney General’s Office.
• To have a valid sale, telephone solicitors must obtain a signed, written confirmation from consumers prior to accepting money or they may use a notice of cancellation form containing specific language which provides an unconditional refund for seven days after the consumer’s receipt of the notice and the goods or services.
• Only certain types of calls are exempt from the Do Not Call Registry.
• Do-not-call laws are enforceable by the Ohio Attorney General in federal or state courts.