TELECOM Digest OnLine - Sorted: Re: A New Way around the Do Not Call Lists ...

Re: A New Way around the Do Not Call Lists ...

Robert Bonomi (
Sat, 08 Jul 2006 02:41:18 -0000

In article <>, mc
<> wrote:

> Ed <> wrote in message

>> This past January I got a call from Peruzzi, a local car dealership
>> here in Bucks County PA (suburban Philadelphia), wishing me a Happy
>> Holiday.

> I think people are going around telling each other -- quite falsely --
> that if the message doesn't explicitly announce things for sale, it's
> not an advertisement and therefore not a violation.

A few things are proscribed or regulated by law (or the implementing
'federal regulation') on the basis of content -- e.g. 'advertising'.

Other things are proscribed/regulated on the basis of the
methodology/technology used. e.g. autodialers, pre-recorded voice
announcement, etc.

The regulations on 'advertising' *do* provide an explicit definition
of what is, and is not, covered. And there has to be a direct
relation to a solicitation for "the purchase or sale of property,
goods, or services."

> A few weeks ago, a jeweler in my town used an autodialer to invite
> people for a free ring cleaning. He told me it wasn't an
> advertisement but an invitation. Worse, he made no attempt to avoid
> dialing hospitals, fire stations, large PBXes, etc. ... my first
> encounter with it was when my secretary got about 8 copies of the
> message via other phones rolling over to hers.

By 47 USC 227, and the FCC rules implementing it,

Dialing (1) 'emergency numbers', (2) _patient/_guest_ rooms at
hospitals, etc., and (3) 'paging service', 'cell phone', 'mobile
phone', 'radio common carrier', and any other 'called party pays'
service is forbidden.

Dialing 'staff' numbers at a hospital, etc. is _not_ proscribed by law.

The *ONLY* restriction on dialing 'large PBXes' is that they may not
tie up two (or more) lines simultaneously.

All of the above apply *ONLY* to the use of autodialers or
'pre-recorded' voice announcements.

And, they apply *regardless* of the content of the message being delivered.

The only explicit mention of 'advertising' as a proscribed activity is
with regard to the sending of unsolicited FAX messages.

If he only called -one- number of your business at a time, his calling
was legal. Business numbers, not subject to the DNC list; not 'called
party pays'; and not an 'emergency' line; Q.E.D.

> I don't know, but I suspect someone is aggressively selling
> autodialers by telling people falsehoods about the law.

> [TELECOM Digest Editor's Note: What may be a bit more tricky, IMO is
> when the purported message is to 'wish happy holidays' as our
> original writer noted. When such a message is conveyed, is it still
> in fact a 'sales call' or an advertising pitch? PAT]

The statute, and the various sections of the CFR implementing it, is
quite specific.

"(3) The term "telephone solicitation" means 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, but the term does not include ..."

If the call is _not_ "for the purpose of" getting some one to purchase
or rent "property,goods, or services", then it is not subject to

The FCC _did_ exempt, by rule, unsolicited calls that are "not of a
commercial nature".

The 'other' regulator, the FTC, is by statute, restricted to
regulation of 'commercial' activities, and *their* telephone
regulations apply ONLY to calls related to the offering for sale, or
soliciting the purchase of, 'property, goods, or services'. _They_
have held that calls just 'setting appointments' for someone to make
an actual sales pitch, are covered by FTC regs.

The 'happy holidays' call _is_ probably legal, in a strict
interpretation of the law. OTOH, the dealership may well be doing
more damage to it's reputation by making the calls, than the goodwill
it generates.

The free ring cleaning offer is also probably, technically,
non-commercial, and thus exempt from the telemarketing restrictions.
A great deal depends on exactly how the message reads -- if they
mention only the free ring cleaning, who they are, and when they're
open, they're almost assuredly on 'safe ground' legally. OTOH, if
they talk up _other_ things they do as well, -- .e.g, " free ring
cleaning offered by XYK jewelers, purveyors of fine diamond jewelry,
and quality watches. Distributors for Omega,Wittenhaur, Rolex, and
Movado watches", _that_ is likely to run afoul of the FTC
telemarketing rules.

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