UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580

Division of Marketing Practices

July 22, 2004

VIA FAX AND FIRST CLASS MAIL

Brian D. Dautch

Director of Government Affairs

The Council for Marketing & Opinion Research

6931 Arlington Road, Suite 308

Bethesda, MD 20814

Dear Mr. Dautch:

This letter responds to your request for a staff advisory opinion filed on April 26, 2004,

on behalf of the Council for Marketing & Opinion Research (“CMOR”). In your letter, you ask

various questions concerning access to the National Do Not Call Registry by members of the

market or opinion research industry. In summary, your questions concern: (1) the exempt status

of survey research firms from the Do Not Call provisions of the Telemarketing Sales Rule

(“TSR”), 16 C.F.R. § 310.4(b)(1)(iii); (2) whether exempt firms may access the National

Registry; and (3) the effect such access may have on the exempt status of such firms. This letter

will answer each of your questions in turn.

As an initial matter, you ask the FTC to reconfirm that the “survey research industry as a

whole consists of organizations that are Exempt Organizations (“EOs”) from the Do Not Call

list.” That is true as a general proposition. Specifically, the Do Not Call provisions of the TSR

apply to “sellers” and “telemarketers” engaged in “telemarketing,” as those terms are defined in

the Rule. “Telemarketing” is defined, in part, as “a plan, program, or campaign which is

conducted to induce the purchase of goods or services or a charitable contribution. . . .” 

16 C.F.R. § 310.2(cc). As a result, survey research firms calling consumers for the sole purpose

of conducting a survey are not engaged in “telemarketing.” Therefore, such firms are not

required to comply with the Do Not Call provisions of the TSR or access the National Do Not

Call Registry. On the other hand, callers purporting to take a “survey,” but also calling to induce

the purchase of goods or services, are engaged in telemarketing and must comply with the TSR,

including the Do Not Call provisions.

Your second question concerns whether exempt organizations may access the National

Registry. Specifically, you ask for confirmation of the following statement:

Survey research organizations may choose to obtain a Subscription Account

Number (“SAN”), for the purpose of satisfying data vendors who insist that

market and opinion researchers have a SAN. Many data vendors and end users

demand this information from our organizations before they will sell our

organizations any information, or contract for services.
1

In fact, those organizations that want “un-scrubbed” lists may not obtain a SAN,

given the need to complete the certification. As the certification makes clear, the only

permissible purpose to access the registry is to prevent calls to consumers who have registered.

2 On the other hand, for-profit telemarketers calling to solicit charitable

contributions are required to comply with the company-specific do not call provisions of the

TSR, 16 C.F.R. § 310.4(b)(1)(iii)(A), not the National Registry requirements.

-2-

Exempt organizations are allowed to access the National Registry voluntarily in order to

avoid calling consumers who do not want to receive telemarketing calls. However, all

organizations accessing the National Registry must certify, under penalty of law, that they are

gaining access solely to comply with the provisions of the TSR “or to otherwise prevent

telephone calls to telephone numbers on the registry.” 16 C.F.R. § 310.8(e). As a result, the

answer to your query depends on the type of information that survey research organizations

obtain from data vendors. If survey research organizations want to avoid calling consumers with

registered telephone numbers, and they obtain a “scrubbed” list of contacts from the data vendor,

i.e., a list that excludes registered telephone numbers, then the survey research organizations

must obtain a SAN prior to being provided that scrubbed list.

On the other hand, data vendors have no basis under FTC rules to require exempt

organizations to obtain a SAN prior to selling telephone lists to those organizations unless those

organizations, based on their own requirements, ask for lists that are “scrubbed” of numbers

included in the National Registry. In other words, if an exempt organization wants to call

consumers whose numbers are included in the National Registry, the organization is not

prohibited by law from doing so.1 Data vendors or list providers should understand that not all

companies that call consumers are required to access the National Do Not Call Registry. As

discussed above, bona fide survey research firms not engaged in “telemarketing,” as defined by

the TSR, are exempt entities not required to access the registry. So are firms that call consumers

solely to induce charitable contributions, or for political fund raising.2 In addition, firms that call

only persons with whom they have an established business relationship as defined by the TSR,

16 C.F.R. § 310.2(n), or from whom they have obtained express written agreement to call,

16 C.F.R. § 310.4(b)(1)(iii)(B)(i), also do not have to access the National Registry. Thus, data

vendors may sell “unscrubbed” lists to exempt organizations without requiring those

organizations to obtain a SAN. Data vendors, of course, may choose to sell only lists that are

“scrubbed” of numbers in the National Registry. In that case, an exempt organization that wants

to obtain an “unscrubbed” list likely will seek to employ a data vendor that does not impose such

restrictions.

The third part of your request for a staff advisory opinion concerns a number of issues

involving the effect accessing the National Registry by an exempt organization may have on the

exempt status of such entities. For purposes of this portion of this advisory opinion, we will

assume that the exempt organization is properly accessing the National Registry, i.e., solely to

prevent telephone calls to telephone numbers on the Registry.
-3-

You ask whether exempt organizations that obtain a SAN may access the National

Registry at their discretion, “as infrequently as they wish,” without such access having an effect

on their exempt status. That is correct. Exempt organizations are, by definition, not required by

law to abide by the Do Not Call regulations. When they access the National Registry, they can

do so only for the purpose of preventing telephone calls to telephone numbers on the registry. 

However, if they decide to access the registry to prevent calls to registered consumers only at

certain times of year, or only on behalf of some exempt clients but not others, they are free to do

so. Accessing the National Registry will not require them to continually do so in the future, or on

behalf of all clients with which they do business. The choice is entirely up to the exempt

organization.

On the other hand, you ask whether an exempt organization may obtain a SAN but choose

never to access the National Registry. If an exempt organization purchases a scrubbed list, it has

accessed the registry indirectly, and must obtain a SAN. It need not ever access the registry

directly. If the organization purchases an unscrubbed list, it would appear to have no reason to

obtain a SAN in the first place, other than, possibly, to placate the demands of a data vendor. As

discussed above, that is an improper use of the National Registry, and any such demand by a data

vendor is unsupported by the TSR. Rather than obtaining a SAN in such a case, an exempt

organization may instead want to search for another data vendor that will provide the requested

information without demanding a SAN.

You also ask if an exempt organization that accesses the National Registry “accidentally

calls someone on the Registry,” whether such accidental call will subject the exempt entity to

potential enforcement actions or fines by the FTC. As discussed above, an exempt organization

is not required to access the National Registry. The FTC has allowed exempt organizations that

choose to prevent calls to consumers with registered telephone numbers to access the registry for

that purpose. Assuming that an exempt organization’s access was for a proper purpose, that

access will not make the exempt organization liable for an “accidental” call made to a registered

number. The same is true if the exempt organization is accessing the registry on behalf of an

exempt client, and the client accidentally calls a registered number.

Please be advised that this opinion is based exclusively on all the information furnished

in your request. This opinion applies only to the extent that actual company practices conform to

the material submitted for review. Please be advised further that the views expressed in this

letter are those of the FTC staff. They have not been reviewed, approved, or adopted by the

Commission, and they are not binding upon the Commission. However, they do reflect the

opinions of the staff members charged with enforcement of the Telemarketing Sales Rule.

Sincerely,

David M. Torok

Staff Attorney