NASD Alerts Members to Private-Party Efforts to Enforce Certain Non-NASD Do-Not-Call Requirements
March 1, 2007
As we have emphasized in past Notices to Members about NASD's telemarketing rule, Rule 2212,1 members also have an independent obligation to comply with any applicable federal or state laws or regulations regarding telemarketing, including the federal telemarketing statutes and rules enforced by the Federal Communications Commission (FCC).2
Rule 2212 requires that members must have a written policy for maintaining a "do-not-call" list.3 Importantly, while Rule 2212 does not require firms to provide any person (other than NASD) with a copy of this written policy, NASD understands that the FCC's rules contain such a provision.4 While NASD does not have the authority to interpret, and thus cannot advise its members concerning other laws and regulations that may apply to members in this area, this Alert highlights what appears to be an emerging trend for members concerning private enforcement5 of the FCC requirement that telemarketers make available, upon demand, a copy of their written policies for maintaining a do-not-call list.
This trend of parties seeking private enforcement of the FCC's do-not-call requirements also has emerged in other areas of commerce where businesses engage in telemarketing, such as realty and retail banking. In certain cases monetary settlements have been demanded from telemarketers who have failed to provide a copy of their do-not-call policies. Given this recent activity, members may want to review their compliance with the full spectrum of telemarketing laws and regulations and contact outside counsel or the appropriate regulatory authority (e.g., the FCC) for assistance where appropriate.
1 See Notice to Members 05-07 (summarizing recent updates to do-not-call registry requirements); Notice to Members 04-15 at page 196 ("Members, however, have an independent obligation to comply with both the FCC's and NASD's telemarketing rules").
2 See, e.g., 47 C.F.R. 64.1200
3 See Rule 2212(d)(1).
4 See 47 C.F.R. 64.1200(d)(1) ("Persons or entities making calls for telemarketing purposes must have a written policy, available upon demand, for maintaining a do-not-call list").
5 As of the date of this Alert, the FCC has posted on its Web site information relating to the general obligations of telemarketers that members may find useful, including information relating to the role that consumers may play in privately enforcing certain rights. See www.fcc.gov/cgb/donotcall.