The Telemarketing Rules and Outbound Calls

Why this matters

The slow month arrives, somebody prints the customer list, and two office staff spend an afternoon calling about a tune-up special. That afternoon is telemarketing, and it is regulated by two federal rule sets plus whatever your state adds. Most shops that get a complaint were not running a boiler room. They called a number on the National Do Not Call Registry that had no business relationship behind it, or called at 9:15 at night in the customer's time zone because the office clock said 8:15, or left a prerecorded message nobody consented to. Each of those is a per-call violation, and a list of a few hundred names turns small habits into a large number. This is not legal advice; it is the map you need before the first dial.

Two federal rule sets, and they overlap

The Telemarketing Sales Rule (TSR), 16 CFR Part 310, is the Federal Trade Commission's rule. It reaches sellers and telemarketers making calls to induce the purchase of goods or services, and it is where the National Do Not Call Registry provisions, the calling-hour limit and the required disclosures live.

The Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, with the Federal Communications Commission's rules at 47 CFR 64.1200. It covers much of the same ground (the registry, calling hours, company-specific do-not-call lists) and adds the consent rules for autodialed and prerecorded calls and texts. The TCPA also gives the called party a private right to sue per call, which is why it produces most of the lawsuits.

Where they differ, follow the stricter. Texting is its own subject with its own registration layer; see related: TCPA and 10DLC Compliance for Business Texting.

What counts as a telemarketing call

A call is telemarketing when its purpose is to sell. "Your plan includes a fall tune-up, when would you like it scheduled?" to a member is service under an existing contract. "We have a fall tune-up special for 20 percent off" to a past customer with no plan is a sales call. The test is the purpose, not the script's politeness.

Three cases trip shops up:

• Calls that only set an appointment. The TSR exempts many calls where the sale is not completed until a face-to-face presentation, but that exemption expressly does not lift the Do Not Call and calling-hour provisions (16 CFR 310.6(b)(3)). An "I can have someone out for a free estimate" call to a registered number is still a registry call.
• Inbound calls. A customer who calls you is generally outside the outbound rules. Calling them back days later about a different product is not the same call.
• Calls to businesses. The TSR largely exempts business-to-business calls, but a landlord's cell phone or a home-based business number often sits on a residential line, and the TCPA's registry protection covers residential subscribers, including many cell phones.

Who you may call: registry, relationship, request

The National Do Not Call Registry. A consumer registers a number once and it stays registered. You may not place a telemarketing call to a registered number unless an exception applies. To use the registry you obtain access (the FTC charges an annual fee per area code beyond a small free allotment) and scrub your list against a version no more than 31 days old (16 CFR 310.4(b)(3)(iv)).

The established business relationship (EBR). The main exception, defined in the TSR at 16 CFR 310.2 and in the FCC rule at 47 CFR 64.1200(f). It lasts:

• 18 months after the customer's last purchase, rental, lease or financial transaction with you, and
• 3 months after the customer's inquiry or application about your services, where they did not then buy.

The clock runs from the last transaction, not from when the customer first became a customer. A service call in March restarts the 18 months. An estimate request is an inquiry, so an estimate a customer turned down gives you three months, not eighteen.

Express written agreement. A customer who signs (on paper or electronically) an agreement naming your company and the number may be called whatever the registry says. Lead-vendor consent is where this goes wrong; see related: How to Vet a Lead Vendor's Consent Practices.

The company-specific do-not-call request. The override on everything above. A customer who says "stop calling me" goes on your own internal list and may not get another sales call from you, EBR or not (16 CFR 310.4(b)(1)(iii)(A); 47 CFR 64.1200(d)). The FCC rule sets a maximum time to honor the request, and a 2024 order shortened it; log the request the same day and the deadline never matters. The FCC rule also requires a written do-not-call policy, available on demand, and training for anyone who places the calls.

When you may call

8 a.m. to 9 p.m., in the called person's local time (16 CFR 310.4(c); 47 CFR 64.1200(c)(1)). The office's clock is irrelevant. A cell phone's area code tells you where the number was issued, not where the customer lives, so use the service address on the account, and when the address and area code point to different zones, call inside the hours that are legal in both.

The state layer often narrows this. Florida's telephone solicitation act, as amended in 2021, limits solicitation calls to 8 a.m. to 8 p.m., and several states restrict or prohibit Sunday and holiday sales calls. Read your own state's statute before setting the evening block.

What you must say, and what you may not use

The TSR requires an outbound sales call to disclose promptly, before the pitch: the seller's identity, that the purpose is to sell, and the nature of what is being sold (16 CFR 310.4(d)). The FCC rule adds the caller's name, the company's name, and a number or address where the company can be reached. You must also transmit caller ID showing a number the customer can call back during business hours (16 CFR 310.4(a)(8)).

OFFICE:   Hi, this is Dana with Ridgeline Heating and
          Air. I'm calling with a sales offer - we're
          booking fall furnace tune-ups at a discount.
          Do you have a minute?
CUSTOMER: Not really. And can you take me off your list?
OFFICE:   Yes. I'm marking you do-not-call for sales
          calls right now, and you won't hear from us
          about offers again. Your service records stay
          on file if you ever need us.
CUSTOMER: Okay, thanks.
OFFICE:   Thanks for your time. Our number is the one
          on your caller ID if you need anything.

Name, company and "sales offer" come in the first breath. Opening with "just checking in on your system" and pivoting to price buries the purpose the rule says to disclose.

Prerecorded messages need prior express written agreement. The EBR does not cover them; the FTC removed that exception for robocalls in 2008. A "voicemail drop" that lands a recorded pitch without ringing the phone is treated by the FCC as a call under the TCPA (its 2022 ruling on ringless voicemail). If you want to leave a message, have a person leave it.

Dialers. A small shop dialing by hand rarely meets the abandoned-call rule, but a predictive dialer must connect a live person within two seconds of the greeting and keep abandoned calls under 3 percent of answered calls per campaign over 30 days (16 CFR 310.4(b)(4)).

The state layer

State do-not-call lists. Roughly a dozen states keep their own lists or fold the federal list into state law with their own penalties; Texas, Indiana, Colorado and Pennsylvania are among them. Some state lists carry a narrower EBR exception than the federal one, and a few have none for some sellers, so the federal exception is not a pass on a state list.

Telemarketer registration and bonding. Several states (Florida and Texas among them) require telemarketers to register and sometimes post a bond, with exemptions that commonly cover businesses making calls to existing customers or completing sales in person. Whether your shop falls inside the exemption is a question to answer once, in writing, with your attorney.

State mini-TCPA laws. Florida, Oklahoma and Maryland have enacted statutes that track the TCPA with broader definitions of an autodialer or added private suits. If you call into those states, the federal rule is the floor, not the answer.

Worked example: one list, sorted before anyone dials

A heating and cooling shop wants to call 400 people about a fall tune-up special. The owner exports four groups:

• 230 customers with a paid service call in the last 18 months.
• 90 customers whose last paid visit was more than 18 months ago.
• 50 people who requested an estimate and did not buy: 20 in the last three months, 30 earlier.
• 30 numbers from a neighborhood list the previous office manager bought.

230 plus 90 plus 50 plus 30 is 400.

Step 1: the internal list first. The shop's own do-not-call log has 12 names that match the export: 9 in the 230 group and 3 in the 90 group. They come off regardless of any relationship. Remaining: 221 in the EBR group, 87 in the lapsed group.

Step 2: the EBR and inquiry windows. The 221 recent customers are inside 18 months, so they may be called even if registered. The 20 recent estimate requests are inside the 3-month inquiry window, so they may be called too. The 30 older estimate requests, which are past three months and never bought, have no relationship left.

Step 3: scrub everyone without an exception. That is the 87 lapsed customers, the 30 older inquiries and the 30 purchased numbers: 87 plus 30 plus 30 is 147 numbers, run against a registry download dated this week. 58 come back registered. 147 minus 58 leaves 89 callable.

The list that goes to the office: 221 plus 20 plus 89 is 330 callable numbers. Removed: 12 internal plus 58 registry is 70. 330 plus 70 is 400.

Step 4: the hours. The shop sits in the Central zone near the line, in a state that uses the federal hours. 41 of the 330 service addresses are across the line in Eastern time. Calls to the 289 Central addresses may run until 9 p.m. Central; calls to the 41 Eastern addresses stop at 8 p.m. Central, which is 9 p.m. where those customers live. The office sorts the sheet so the Eastern names are dialed first. In Florida the same sheet would stop at 8 p.m. local, and Florida also keeps its own list, which brings the next paragraph into play.

What changes the answer. If the shop were in a state with its own do-not-call list, the 147 would also run against that list, and if that state's list lacks the federal EBR exception for this kind of seller, the 221 recent customers would need scrubbing against it as well, so the clean count above would be too high. If the owner had planned recorded voicemail drops instead of live calls, none of the 330 would qualify, because the EBR does not cover prerecorded messages; only the customers who signed a written agreement for them would. And if the purchased list had come with a consent claim from the vendor, the burden of proving that consent would sit with the shop that made the call, not the vendor.

The failure mode. It is rarely malice. It is the 30 purchased numbers dialed without a scrub because "they're just neighbors," or the 9 internal do-not-call names dialed because the log lives in a notebook the evening caller never saw. Keep the internal list inside the same system the office dials from.

How to verify you are set up

• The registry download used for the campaign is dated within 31 days of the last call placed.
• Every name on the call sheet carries its basis: EBR date, inquiry date, written agreement, or "scrubbed clean."
• The internal do-not-call list is checked automatically, and a request taken on a call is logged before the caller dials the next number.
• The evening block ends at the earlier of 9 p.m. or your state's limit, in the customer's zone.

References

• 16 CFR Part 310, Telemarketing Sales Rule (Federal Trade Commission), including 310.2, 310.4 and 310.6
• 47 U.S.C. 227 and 47 CFR 64.1200, Telephone Consumer Protection Act rules (Federal Communications Commission)
• See related: TCPA and 10DLC Compliance for Business Texting
• See related: How to Vet a Lead Vendor's Consent Practices
• See related: Unfair and Deceptive Practices Laws Behind Every Complaint