Rules Governing Inbound Callbacks

For nearly 100 years, the humble telephone has served as an essential link between businesses and customers they serve. In simpler times, an interested consumer would call a phone number featured on a print ad, TV, or radio commercial, that call would be answered by a company employee, and with any luck, a fruitful relationship would arise as a result.

And, if the line was busy or the call was placed after business hours, the consumer would just have to call back because companies simply had no way of knowing that someone tried to reach them, and even if they did, they had no means of identifying the caller’s phone number.

Nowadays, thanks to the onward march of technology, companies can easily track every inbound call placed to a particular line regardless of whether it was answered and can just as easily identify the caller’s number.

This raises an important question: Can a company that missed a consumer-initiated inbound sales call place a return call to the same number without violating the TCPA? Answering that question requires one to navigate the mystifying web of statutes, rules, and regulations governing the issue, which have developed along with the technology that makes identifying inbound numbers possible.

Unfortunately, as is the case with most legal questions, the answer starts with, “it depends.”

Inbound Callbacks Depends Upon the Following Factors:

1. DNC or No DNC? If the consumer’s number is not listed on the National (or any state) Do-Not-Call Registry, the company can return a call to that number, as long as the call is not made using an automated telephone dialing system (ATDS) or features a prerecorded or artificial voice. It is best to have a live person manually place the call. The remaining scenarios all deal with DNC-listed numbers.
   
2. Inbound Call Answered. If a company answered the inbound call and a representative spoke with the caller and obtained their prior express consent to call them back at the same number during a recorded conversation, the company can rely upon that consent to call back the consumer at a DNC-listed number. However, for a variety of reasons, very few businesses are able to secure full and enforceable recorded consent.
   
3. Inbound Call Not Answered: If the inbound call from the DNC-listed number was not answered (or the company failed to secure consent to place a call back), the company must first ensure that the call they’re seeking to return was a genuine consumer initiated inbound call placed in response to an advertisement, as opposed to an inbound transfer of an outbound call placed by a 3rd party lead generator. If it was the latter, do not attempt to call the number back.

The TCPA and the Telemarketing Sales Rule prohibit marketing calls to DNC-listed numbers without the prior express written consent of the called party, but there is a limitedexemption for calls placed to consumers with whom the caller has an existing business relationship (EBR), either in the form of an ongoing relationship (i.e.., an existing customer), or a potential relationship triggered by a consumer's inbound call, query, or online form submission regarding a company's goods or services.

Thus, if the inbound call was a genuine attempt by a consumer to learn more about the company's products or services, the company should be able to rely upon the EBR exemption to place a return call to the consumer’s DNC-listed number. However, the EBR exemption has a strictly limited time frame, and is only effective for three (3) months following the date of the inbound call or query. Any outbound call placed outside the three-month exemption period represents a DNC violation.

Conclusion

In the performance marketing space, seemingly simple questions like "Is it permissible to return an inbound call initiated by a consumer" rarely have simple answers and warrant careful consideration. The answers are intricate, hinging on factors such as express consent, the nature of the inbound call, the type of system being used to place the outbound call, and whether the number to be called is on the National DNC Registry status.

If a number is on the DNC, marketing calls and texts are generally prohibited absent prior express written consent, with a limited exemption for existing business relationships, which has its own set of stipulations.

It is imperative that businesses acquaint themselves with these dynamics, ensuring lawful and respectful interaction with consumers, which is not just beneficial but crucial for their sustainable operation.