Mitchell N. Roth
mroth@williamsmullen.com

As appeared in e-Connections newsletter, a publication of the American Teleservices Association.

Your company spends a significant amount of money on a regular basis purchasing lead lists from its list vendors. You compare the telephone numbers on the lead list to the national Do Not Call registry and wouldn't you know it...40% of the telephone numbers on the list which you purchased are on the national DNC registry. So, you come up with a great idea: Send direct mail pieces to the individuals whose telephone numbers are on the registry. Permissible, right??? Maybe not!

Section 310.4(b)(2) of the Telemarketing Sales Rule prohibits the use of the national registry or a company's entity-specific do-not-call list for any purpose other than compliance with the Telemarketing Sales Rule. Although the FTC's Statement of Basis and Purpose which served as the TSR's preamble does not discuss this issue, a plain reading of the regulatory language leads to the conclusion that a company may not use the telephone numbers on the national DNC registry as a database of individuals to whom the company should target with other forms of direct marketing materials.

The FTC's detection and enforcement of violations of this provision could be challenging, at best. However, do you want to be the first company targeted for violations of this provision? You may want to discuss this issue with your company's compliance officer or attorney first.