Resources Tools to help you stay ahead of regulations and your competition


Enforcement of marketing privacy laws is on the rise, not tapering off. New technologies and platforms for communication between consumers and businesses are pushing outbound marketing to the forefront of the government’s enforcement efforts. Consumers are fighting back too: for example, some reports say that lawsuits pertaining to the Telephone Consumer Protection Act (TCPA) rose nearly 700% between 2012 and 2013.

As the laws get more restrictive and complex, lawsuits will increase and governments looking to raise revenue will continue to crack down.

Furthermore, just because you haven’t heard anything from an enforcement agency, doesn’t mean one isn’t building a case against you. State and federal regulators aren’t interested in if your company is large or small, but only in enforcing the law and making as large a case as possible against alleged violators.

In 2013, the Consumer Financial Protection Bureau expanded its complaint database to cover more sectors of the financial industry and provide greater access to state and other federal enforcement agencies. This is just one example of how increased transparency within the government will make it ever harder to fly under the radar.

Unhappy consumers, frustrated customers, and any potential violation can attract the attention of regulators, and even an inquiry, much less an investigation, can cost a company, both financially and in terms of legal man-hours.

Marketing in my business is managed by my independent agents or third-party marketing service vendors, so isn’t marketing privacy compliance their concern?

This is a common misconception but compliance is the responsibility of the seller company. Passing responsibility to outsourced third parties is not sufficient according to the law.

The FTC has sent a clear message that liability runs up the marketing chain; business cannot hire subcontractors to break the law and remain clear of any liability. Multiple rulings in the last few years have confirmed that according to regulators, the consumer expectation trumps a marketer’s intention. When Carl Consumer receives a call from an agent selling the products and services of XYZ Corporation, he expects XYZ Corporation to respect his marketing preferences and not call him if he doesn’t want to be called. Opt-outs collected by independent agents and outsourced call centers must be treated equally and honored throughout the entire organization for each telemarketing campaign.

If one of your independent agents or your third-party marketing vendors doesn’t honor an opt-out or comply with Do-Not-Call registries, your businesses will be on the hook for a $16,000 fine per violation.

To ensure corporate-wide compliance, opt-outs must be collected centrally and be accessible to all agents, sales, and marketing teams. The only way to outsource marketing privacy compliance is to rely on Gryphon, which provides the only indemnified compliance solutions available.

There can be a significant, and potentially costly, gap between what state and federal regulators consider to be a “cold call” and what is commonly thought of as a cold call by telemarketers. Remember: in the eyes of the law, it’s the consumer’s perception rather than the marketer’s intention that counts. Multiple cases in the last five to 10 years have reiterated this point.

Furthermore, marketing privacy regulations cover more than just Do-Not-Call lists. They also include regulations on:

  • Referral calls, which are still subject to the same DNC regulations governing a consumer’s registered phone number;
  • Established business relationship exemptions, in that they are subject to the federal and/or more restrictive durations in which the number resides;
  • Documenting solicitation calls of any kind to existing customers in auditable reports to support legislative inquiries;
  • When and how it is legal to use autodialed or prerecorded calls, and
  • Solicitation during states of emergency or curfew hours.
In addition, marketing privacy regulations require that every business have a company-specific Do-Not-Call list and that every marketing campaign, whether they initiate internally, from independent agents in the field, or through third-party marketers – need to comply with internal Do-Not-Call requests.

Any outbound telemarketing campaign needs lead lists that are certified with an indemnified compliance engine. But if you’re communicating with your customers over the phone in any capacity, you need to keep track of and be compliant with their marketing preferences.

More often than not, list scrubbing over suppresses legitimate leads, giving your agents fewer viable numbers to call. That’s because list scrubbers don’t take into account your business’ proprietary relationships with your customers and prospects and can’t apply legal exemptions to Do-Not-Call blocks.

While marketing privacy regulations continue to increase in number and complexity, exemptions in the laws allow businesses to focus their marketing on consumers most likely to close a deal. A consumer whose number is listed on a state or federal Do-Not-Call list but has an established business relationship (EBR) with your company is exempt from most marketing privacy laws, and is a promising lead, because he or she has:

  • Made a purchase
  • Inquired about your products or services
  • Completed an application for more information
  • Provided express written consent for you to contact them
List scrubbing doesn’t take EBRs into account, and suppresses that lead. This is because leveraging exemptions is complicated. In addition to keeping track of when an EBR exemption applies to a lead, businesses need to know when that exemption expires (which depends on if the number was on a federal or state do-not-call list, and which varies from state to state) and maintain a record of what action the consumer took to warrant an EBR exemption in case of a regulatory inquiry.

Furthermore, as regulations evolve new exemptions can be created and existing ones can be eliminated.

Gryphon offers the only real-time, indemnified compliance solutions backed by the power of our proprietary exemption rules engine. Our products find every legal exemption to maximize your marketing reach and keep your agents busy calling their most promising leads. Gryphon allows your business to apply, manage, and revoke exemptions in real time as your agents dial, ensuring compliance with the law and creating an auditable record of every transaction in the event of a regulatory inquiry.

While list scrubbers require a delay as files are transferred, Gryphon achieves all of this automatically. Your lists are updated in real time and never over suppressed.
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