Affiliate DNC Risk: Why the "Reasonable Consumer" Standard is a TCPA Trap
The FCC is looking at doing away with company-specific DNC requirements also known as “internal DNC lists”. But, until something is finalized, a recent court decision reiterated the importance of Do-Not-Call (DNC) requests, particularly as they relate to affiliated businesses. In Moore v. Farmers Group, Inc., the plaintiffs claimed that multiple calls were made to their numbers, which were already on the National Do-Not-Call (DNC) Registry. The notable thing about this case is how there are multiple defendants, all of whom are affiliated with Farmers Insurance.
One of the plaintiffs (Hossfield) received multiple calls from multiple parties in 2023, all of whom stated they worked with Farmers Insurance. Hossfield claims to have received these calls even after making a DNC request in 2020. However, the DNC request Hossfield relied on "was made to a representative of the 'Justin Roberts Farmers agency'."
Farmers argued that since the DNC request was made to a local agency and not the corporate entity directly, it was not sufficient to place the number on the corporate internal DNC list. The court disagreed, finding that the 2020 DNC request was sufficient to put Hossfield's number on the Farmers' internal DNC list, since "Hossfield was solicited to buy Farmers goods and services from an agency using Farmers' trade name."
DNC requests can be applied to affiliates under the DNC regulations if the "consumer reasonably would expect them to be included given the identification of the caller and...the product being advertised." The court summarized this principle perfectly, stating, "a reasonable consumer would expect all Defendants to be included in a do-not-call request made to a telemarketing advertising Farmers products."
This case highlights a few things to note, especially for insurance agents:
You must be tracking DNC requests. Remember, the revocation rules require "all reasonable revocation requests to be honored."
You must communicate your DNC requests with affiliated parties. This includes communicating opt-outs "upstream" to your insurance carriers, as consumers "reasonably would expect" the request to cover the brand being advertised, not just the individual agency.
You must make sure you are scrubbing against internal DNC lists. An internal DNC request should be honored for five years. Failing to scrub against it could leave you open to TCPA claims.
DNC scrubs are TCPA 101, but telemarketers, including insurance agents, need to understand that a simple DNC request can be broader than they initially appear.
