The webinar by attorneys Eric Allen and Ryan Thurman discussed telemarketing laws related to B2B and non-profit organizations, emphasizing that exemptions exist but are not comprehensive. Key points included the need for consent when using autodialers, the differing regulations from the FTC and FCC, and the necessity for B2B and non-profits to scrub against do-not-call lists. It also highlighted the complexities surrounding compliance and the importance of understanding local regulations.

1. Finally, the Truth about B2B and
Non-Profit Telemarketing Law!
Webinar Presentation by attorney Eric Allen and Ryan Thurman
December 17, 2015

2. Top Litigious States
Top five in terms of total number of known
litigants:
1. California (10,607 know litigators)
2. Florida (8,245 know litigators)
3. New York (6,703 know litigators)
4. Pennsylvania (4,990 know litigators)
5. Illinois (4,598 know litigators)

3. Top Litigious States
Top five with population factored in:
1. District of Columbia (1 litigator per every 1,985
people)
2. Florida (1 litigator per every 2,413 people)
3. New Jersey (1 litigator per every 2,559 people)
4. Pennsylvania (1 litigator per every 2,563 people)
5. Nevada (1 litigator per every 2,626 people)

4. Litigator Scrub
 Identifies serial TCPA plaintiffs & mitigates risk while
running wireless and DNC scrubs
 Over 89,000 litigator phone numbers and growing
 Updated monthly from multiple sources
 First of its kind industry solution
 Identify litigators on both inbound and outbound campaigns
 Stops professional litigants in their tracks
 Free Litigator Scrub Test

5. Who is watching YOU?
Various agencies regulate
call centers and telemarketing
 Federal Communications Commission (FCC).
 Federal Trade Commission (FTC).
 (NEW) Consumer Financial Protection Bureau (CFPB).
 The US Department of Justice / US A.G
 State Attorneys General and other local consumer
protection agencies.
 Agencies share complaint data! Consumer Sentinel System.
 (NEW) Econsumer.gov = new FTC international partnership
and complaint database.
 FCC now releases unaudited complaint data online!
 (Non government watchdog) Better Business Bureau (BBB).
BBB cannot regulate, but it investigates & reports.
 Private Plaintiffs and their counsel.

6. True or False?
 “But I’m B2B so I’m exempt from all this
Crap!”
 “No, that doesn’t apply to me because I
only work for non-profits.”
 “We are a charity/political org so we are
all good.”
The truth is, these are partly true and
partly false. B2B and Non-Profit
telemarketing are exempt from some, but
not all of the rules. We will provide the
answers today!

7. B2B and the FTC (TSR)
In general, B2B is exempt from the Telemarketing Sales
(TSR) , except for the sale of non-durable office supplies:
16 CFR §310.6 Exemptions.
(b) The following acts or practices are exempt from this
Rule: … (7) Telephone calls between a telemarketer and
any business, except calls to induce the retail sale of
nondurable office or cleaning supplies;
NOTE: The FTC has separate, non-telemarketing rules
about fair practices in advertising that still apply B2B
(honesty, no misrepresentations, disclosure of key terms,
etc.) See the Federal Trade Commission Act, for starters.

8. B2B and the FCC (TCPA)
 There is no specific B2B exemption from the TCPA/FCC,
like there is for the TSR/FTC. Some of the language in
the TCPA is not consumer specific.
 Example: “All artificial or prerecorded voice telephone
messages shall… (lists various behavior and disclosure
requirements).”
 Most notably, the dialer/ATDS rules protect all cell
phones, not just consumer cells 
 HOWEVER, THERE IS NO TCPA (OR TSR) BAN AGAINST
PRERECORDED ROBOCALLS TO BUSINESS LANDLINES 

9. But How does the TCPA protect
business cells?
 CFR § 64.1200 (a) No person or entity may:…(2)
Initiate, or cause to be initiated, any telephone call
that includes or introduces an advertisement or
constitutes telemarketing, using an automatic
telephone dialing system or an artificial or
prerecorded voice, to any of the lines or telephone
numbers described in paragraphs (a)(1)(i) through (iii)
of this section [any telephone number assigned to a
paging service, cellular telephone service, specialized
mobile radio service, or other radio common carrier
service, or any service for which the called party is
charged for the call], other than a call made with the
prior express written consent of the called party…

10. Implications for autodialed
calls to business cells
 B2B must scrub wireless (block/carrier file and
ported list), just like B2C, when using an
autodialer/ATDS or prerecorded message.
OR
 B2B must obtain prior express written consent to
autodial a business cell.
 “Written Consent” may be obtained using proper
disclosures and recordkeeping on a web opt-in
page, paper form, email or text communication,
recorded phone call, or any other method that
would create an electronic signature under the
Federal ESIGN Act or similar state laws.

11. How to obtain written
consent to call cell phones
CFR § 64.1200(f)(8)
The term prior express written consent means an agreement,
in writing, bearing the signature of the person called that
clearly authorizes the seller to deliver or cause to be delivered
to the person called advertisements or telemarketing messages
using an automatic telephone dialing system or an artificial or
prerecorded voice, and the telephone number to which the
signatory authorizes such advertisements or telemarketing
messages to be delivered. (i) The written agreement shall
include a clear and conspicuous disclosure informing the person
signing that: (A) By executing the agreement, such person
authorizes the seller to deliver or cause to be delivered to the
signatory telemarketing calls using an automatic telephone
dialing system or an artificial or prerecorded voice; and (B)
The person is not required to sign the agreement (directly or
indirectly), or agree to enter into such an agreement as a
condition of purchasing any property, goods, or services.

12. How to obtain written
consent to call cell phones
 Requirements
 Written agreement which includes the signature of the person
providing consent (can be an electronic signature per ESIGN Act).
 Agreement must indicate the specific seller (or sellers) to whom
consent is being provided.
 Agreement must included the telephone number to be called.
 The person must take some affirmative action to clearly indicate their
consent.
 Agreement must disclose:
 The consumer authorizes the company to make telemarketing calls.
 The calls will be placed using an ATDS (including prerecorded if applicable).
 The consumer is not required to provide consent as a condition of purchase.
 Methods
 Website opt-in (proper language, affirmative action, store consents).
 Paper forms (but sweepstakes entry forms are risky). Can’t hide in fine
print.
 Live recorded consent over the phone. Careful not to explode your
internal DNC! (this only applies to marketers)

13. Necessary consent elements
for “written consent”
For obtaining “prior express written consent”:
 Identify specific telephone number to be called.
 Identify the purpose (marketing, collections, etc.)
 Identify which specific business(es) will call them.
 Identify technology to be used (ATDS, Prerecorded,
SMS).
 Disclose that they are not required to consent in order
to buy something (for marketers only).
 Collect an unambiguous, affirmative agreement
evidencing consent after “clear and conspicuous”
discloses. (Can’t be in fine print or in privacy policy,
etc.)
 Obtain written signature (or electronic signature under
ESIGN Act or similar state laws).

14. Sample consent language
By clicking SUBMIT, I agree to be contacted by Allen Legal, along with
its agents and partners, at the number I entered above, which I
certify is my own number, for marketing and other purposes,
including through the possible use of an autodialer, prerecorded and
text messages. I agree that calls may be recorded or monitored and I
will update Allen Legal immediately if I change my number. I am not
required to consent in order to purchase. SUBMIT
Be sure to capture at least the following:
 URL
 Time and Date Stamp
 IP Address
 Screenshot or similar data showing exactly what they saw when
they consented and what they entered into the form.
 Store for at least 5 years beyond the last date you will rely on the
consent.

15. B2B and the National DNC list
Must B2B scrub against the national DNC?
 Genuine business numbers are not protected by the
National DNC list. Meaning, even if someone put their
business line on the DNC, it is not a violation to call it
under the federal rules.
Why should B2B still scrub DNC?
 State DNC. Not every state has a clear B2B exemption
from their local DNC rules. For example, Utah state
law makes it illegal to call numbers on the National
DNC, and Utah lists no B2B exemption, unlike in the
TSR. Also, the Colorado Supreme Court specifically held
that its state DNC list protects home-based businesses.
 Dual purpose lines. You may think you are calling a
business line, but the recipient may feel it is primarily
their personal line.

16. B2B exemption from state
telemarketing licenses
 Business-to-business ("B2B") telemarketers. Some
states have exemptions for telemarketers who only call
other businesses. Whether you qualify may depend on
what was sold, whether the business purchased
something from you in the past, whether you send
descriptive literature before the new transaction, or
other factors.
 States having B2B exemptions from local licensing:
Alabama, Arizona, Arkansas, Colorado, Delaware,
Florida, Kentucky, Mississippi, Maine, Montana, New
Jersey, New York, North Carolina, Ohio, Oklahoma,
Pennsylvania, South Dakota, Texas, Washington,
West Virginia, Wisconsin, Wyoming.
 Also remember that some states have no license at all.
 Read exemptions carefully – some are complex!

17. FTC’s jurisdiction over non-
profit calls
The FTC does not have jurisdiction over non-profit
organizations. Therefore, non-profit organizations are not
required to comply with the TSR. The FTC does, however,
have jurisdiction over third parties that contract with
nonprofit organizations. The FCC has much broader
jurisdiction than the FTC, including jurisdiction over
nonprofit organizations. Non-profit organizations are
therefore not exempt from the TCPA, except as discussed
below.

18. Enough of B2B, what about
non profits? Charities?
Political Orgs?
 In general, non-profit calls, whether
political, charitable, educational,
etc., are treated the same under
telemarketing law (TCPA and TSR).
 Non-profit calls are exempt from
many, but not all, of the rules.

19. FCC jurisdiction over non-
profit calls
 Unlike the FTC, the FCC has jurisdiction over all
non-profit calls.
 The TCPA includes a number of dialing restrictions
that are applicable to calls “by or on behalf of”
non-profits.

20. Telephone Solicitations under
the TCPA
 47 C.F.R. § 64.1200(f)(14)
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 such term does not include a call
or message: …
(iii) By or on behalf of a tax-exempt nonprofit
organization.

21. Do the TSR DNC provisions cover
calls soliciting money for
charities?
Charities that are calling on their own behalf to solicit charitable
contributions do not need to scrub against the national DNC list.
However, if a third-party telemarketer is calling on behalf of a
charity, a consumer may ask not to receive any more calls from or
on behalf of that specific charity. If a third-party telemarketer calls
again on behalf of that charity, the telemarketer may be subject to
a fine of up to $16,000.
IE, charities and other non-profits DO NOT need to scrub against the
national DNC, and neither do their for-profit vendors, but the for-
profit vendor needs to honor internal DNC requests.

22. How do you qualify as a nonprofit
organization for purposes of the
TSR?
 To qualify for this type of exemption, an organization
must be truly nonprofit. That is, it must not be
organized to conduct business for its own profit or the
profit of its members. Please note that an organization
that has been incorporated as a nonprofit or recognized
by the IRS as tax-exempt is not necessarily an Exempt
Organization for purposes of the National Do Not Call
Registry. The FTC has successfully charged that an
organization that purports to be a nonprofit is not
exempt if the organization is, in fact, operated for the
profit of its members, officer, or affiliated for-profit
companies.

23. Telefunders are prohibited
from:
 Making a false or misleading statement to induce a
charitable contribution.
 Making misrepresentations.
 Engaging in credit card laundering.
 Placing “cold” calls that deliver prerecorded messages.
 Engaging in acts defined as abusive under the TSR, such
as calling before 8 a.m. or after 9 p.m., disclosing or
receiving consumers’ unencrypted account information,
and denying or interfering with a consumer’s right to be
placed on a Do Not Call list.

24. Prohibited Misrepresentations
in charitable solicitations
1. The nature, purpose, or mission of the entity on
whose behalf the solicitation is made
2. Tax deductibility
3. Purpose of a contribution
4. Percentage or amount of contribution that goes
to the charitable organization or program
5. Material aspects of prize promotions
6. Affiliations, endorsements, or sponsorship

25. Scenario 1 - Nonprofit entity robocalls
on its own behalf to make
informational/political calls
FTC has no jurisdiction. The FCC has jurisdiction over nonprofits, but
here the nonprofit is not “telemarketing.” Nonetheless, there are
certain TCPA rules that apply:
 The nonprofit cannot call cell phones unless they have prior
express consent (not “written consent”).
 15 day safe harbor provision for calling of ported cells;
 Cannot tie up multiple business lines;
 Cannot disconnect an unanswered telemarketing call prior to at
least 15 seconds or four (4) rings;
 Cannot abandon more than 3% of answered telemarketing calls;
 Cannot use any technology to dial any telephone number for the
purpose of determining whether the line is a fax/voice line;
 Required to disclose the name of the entity responsible for
initiating the call and the telephone number of the responsible
entity.

26. Scenario 2 - Nonprofit entity
robocalls on its own behalf to raise
money (telefunding)
 Exempt from FTC/TSR.
 If call does not contain telemarketing/advertising then the
same TCPA rules as in scenario 1 apply.
 If call does contain telemarketing/advertising then the
following restrictions apply in addition to those discussed in
scenario 1:
 15 day ported number safe harbor no longer applies.
 Call must include automated, interactive voice-and/or key press-
activated opt-out mechanism.

27. Scenario 3 - For profit vender
robocalls on behalf of the nonprofit
to make informational political
calls
 Exempt from FTC/TSR
 The same TCPA rules as discussed in scenario 1
would apply to this scenario as well.

28. Scenario 4 - For profit vendor
robocalls on behalf of the non-
profit to raise money (telefunding)
 FTC/TSR applies!
 The same rules apply to the for profit vendor as for any other
telemarketer, with two exceptions.
 Solicitations to induce charitable contributions are exempt from
federal DNC requirements.
 For profit vendor would be banned from making misrepresentations
 The same TCPA rules would apply as in scenario 2,
 For profit vendor also required to maintain internal DNC list.

29. How non-profits can obtain
“express consent” to call
cell phones
 “Express Consent” was left undefined in the TCPA.
 One Federal Court, when deciding an important TCPA
case, said that “express consent” is “consent that is
clearly and unmistakably stated.” Satterfield v. Simon
& Shuster (2009)
 However, regarding implied-express consent based on
the provision of the number, the FCC said: (for non-
marketing or non-profit calls only)
“Persons who knowingly release their phone numbers
have in effect given their invitation or permission to be
called at the number which they have given, absent
instructions to the contrary.”

30. Frequently Asked Questions
 Are charities allowed to call cell phones?
 Yes, unless they use an autodialer/ATDS, in
which case they need express consent.
 Keep in mind that this is a lower standard of
consent than what is required for
telemarketing calls (“Written consent”). It is
the same level that is needed for debt-
collection and information calls.
 This means that if charities are calling using an
ATDS, they need to either have consent or
scrub out cell phones.
 Either with or without consent, also scrub for
reassigned numbers as best practice.

31. Frequently Asked Questions
 Do non-profits need to scrub against state and federal
DNC lists?
 Non-profit organizations do not need to scrub
against the national DNC list, but they should
maintain their own internal DNC list as a best
practice. A for-profit telemarketing vendor of the
non-profit MUST maintain an internal DNC.
 Non-profits are exempt from most state DNC laws,
but not all. Some states have specific requirements
that non-profits have to meet to qualify for the
exemption. For example, the Arkansas DNC law only
contains an exemption for a person calling on behalf
of a non-profit organization who receives no
compensation.

32. Frequently Asked Questions
 States whose state DNC laws apply to calls soliciting
donations:
 By charity: Alaska, Arkansas, and Oregon.
 By professional fund raiser: Alaska, Arkansas, Indiana,
Louisiana, Nevada, North Dakota, Oregon, and Tennessee.
 States whose DNC laws apply to calls for the sale of
goods or services:
 By charity: Alaska, Arkansas, Florida, Idaho, Kansas,
Kentucky, Maine, New Jersey, New Mexico, Oregon, South
Dakota, Texas, and Wyoming.
 By professional fund raiser: Alaska, Arkansas, California,
Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana,
Maine, Massachusetts, Mississippi, Missouri, Montana,
Nevada, New Jersey, New Mexico, North Dakota, Oregon,
South Dakota, Tennessee, Texas, and Wyoming.

33. Frequently Asked Questions
 Are calls by or on behalf of non-profit organizations exempt
from the federal prerecorded message bans for landlines?
 FTC (TSR)
 Calls by or on behalf of non-profit organizations for the sale of
goods or services – Yes
 Calls by or on behalf of non-profit organizations to solicit
charitable donations – Yes
 Calls by or on behalf of non profit organization or candidates for
political purposes only - Yes
 FCC (TCPA)
 Calls by or on behalf of non-profit organizations for the sale of
goods or services – Yes if by nonprofit, no if by for profit entity
calling on behalf of nonprofit
 Calls by or on behalf of non-profit organizations to solicit
charitable donations – Yes if by nonprofit, no if by for profit entity
calling on behalf of nonprofit
 Calls by or on behalf of non profit organization or candidates for
political purposes only - Yes

34. Frequently Asked Questions
 Are calls by or on behalf of non-profit organizations
exempt from state robocall/prerecorded message bans?
 Calls by or on behalf of non-profit organizations for the
sale of goods or services are exempt in: Alabama, Illinois,
Maine, Massachusetts, and Wisconsin. The following states
allow robocalls, but require the business to register or
follow certain restrictions: Idaho, Nebraska, New
Hampshire, New York, Oregon, Pennsylvania, South
Dakota, and Texas.
 Calls by or on behalf of non-profit organizations to solicit
charitable donations are exempt (registration
requirements and/or restrictions may still apply in some
states) in all states except: Alaska, California, Indiana,
Minnesota, Mississippi, New Jersey, North Carolina, North
Dakota.
 Calls by or on behalf of non profit organization or
candidates for political purposes only are exempt
(registration requirements and/or restrictions may still
apply in some states) in all states except: Arkansas,
California, Indiana, Minnesota, Mississippi, Montana, New
Jersey, North Dakota, South Carolina, and Wyoming.

35. Frequently Asked Questions
 Do charitable telefunders need
telemarketing licenses?
 It depends. Many states (but not all)
exempt telemarketing calls made by or
on behalf of a non profit entity.
 Keep in mind that many states have
separate licensing requirements for
business soliciting charitable
contributions.
 Businesses should contact their legal
counsel about their specific situations.

36. TSR Amendments
 The following changes will go into effect on June 13, 2016:
 Rules banning remotely created payment orders and checks, cash-to-
cash money transfers, and cash reload mechanisms.
 Changes that limit certain exemptions as they relate to the payment
methods described above
 All other changes are effective on February 12, 2016. These include:
 Requirement that a description of the goods or services purchased be
included in the call recording for certain transactions.
 Examples given illustrating the types of burdens that deny or interfere
with a consumer’s right to be placed on a seller’s or telemarketer’s
entity-specific do-not-call list;
 Clarification that a seller or telemarketer has to demonstrate that it
has an existing business relationship with, or has received an express
written agreement from, a consumer to be exempt from DNC
requirements;
 Limitation on the safe harbor for when the telemarketer does not get
the information needed to place consumer on its internal DNC list.
 Amendment to b2b exemption clarifying the business-to-business
exemption only applies when you are trying to sell goods to the other
business, not to individual employees at the business.
 Emphasis given that sellers are prohibited from sharing the cost of the
fees to access the DNC Registry.

37. Questions?
Eric Allen, Allen, Mitchell & Allen PLLC
AllenLawyer.com
801-930-1117
eric@allenlawyer.com
Ryan Thurman, Contact Center Compliance
DNC.com
866-DNC-LIST (362-5478) x 116
ryan@dnc.com