State

Fines and Penalties

Citation

Federal

It shall be an affirmative defense if the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation.

A seller or telemarketer will not be liable for violating the provisions of the National Do-Not-Call List if it can demonstrate that, as part of its routine business practice:

1. It has established and implements written procedures that comply with the Do-Not-Call List Law;

2. It has trained its personnel, and any entity assisting in its compliance, in the procedures established in (1) preceding;

3. The seller, or a telemarketer or another person acting on behalf of the seller or charitable organization, has maintained and recorded a list of telephone numbers the seller or charity may not contact because those persons have stated they do not wish to receive telephone calls from the seller or charity;

4. The seller or telemarketer uses a process to prevent telemarketing to any telephone number on any list established to the Do-Not-Call List Law, employing a version of the “do-not-call” registry obtained from the FTC no more than 3 months prior to the date any call is made, and maintains records documenting this process;

*[as of January 1, 2005, this 3 month time period is reduced to 31 days, see 69 Fed. Reg. 16368,16373
(March 29, 2004)]

5. The seller or telemarketer or another person acting on behalf of the seller or charity, monitors and enforces compliance with the procedures established pursuant to the Do-Not-Call List Law; AND

6. Any subsequent call otherwise violating the Do-not-call List Provisions is the result of error.

47 USC§ 227(c)(5)(C)

16 CFR§ 310.4(b)(3)

Alabama

A defense can be made if the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitation violations..

§8-19C-8

Alaska

A person who engages in telephone solicitations is not liable for violations:
(1) if a person establishes that he has adopted and implemented written procedures to comply with this section including corrective actions where appropriate. The telephone solicitor has been trained in the procedures and the violation of the call was made contrary to the procedures and policies established by the person. The calls on behalf of the person are infrequent.
(2) if an individual did not intend to make a call in violation of AS 45.50.475 and did not disregard information or policies and procedures that would have avoided the improper call.

§45.50.475(d)

Arkansas

None

California

An affirmative defense can be made if the violation was accidental, and it was in violation of the telephone solicitor’s policies and procedures and telemarketer instruction and training.

§17593 (d)

Colorado

It shall not be a violation if:(1) the person or entity has fully complied with the provisions and has established and implemented, prior to the violation, written practices and procedures to prevent telephone solicitations in violation. (2) the violations resulted from an error in transcription r other technical defect, not the fault of the person or entity that caused the information in the no-call list as received by the person or entity to differ from information that was or should have been included in the no-call list as transmitted by the designated agent.

6-1-906 (2)

Connecticut

A telephone solicitor may not be held liable if the telephone solicitor demonstrates that the solicitor established and implemented written procedures and trained its employees to follow such procedures to comply with this section, the telephone solicitor deleted from its call list any listing of a consumer on the current quarterly “no sales solicitation calls” listing maintained, and such call was made inadvertently.

§42-288a (10)(g)

Florida

None

Georgia

A defense can be made if the defendant has established and implemented with due care reasonable practices and procedures to effectively prevent telephone solicitations in violation.

§46-5-27(j)

Idaho

None

Illinois

SB1830 §40

Indiana

The attorney general may consider the following as mitigating factors in the attorney general’s decision to seek civil penalties under IC 24.7-5:
(1) that the defendant has obtained, from the division or the agent with which the division has contracted under IC 24-4.7-3-2 the most recently published telephone privacy list.
(2) that the defendant has maintained the records required by 11 IAC 1-2-1.
(3) that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of IC 24-4, 7-4.
(4) that the defendant has not previously been found to have violated IC 24-4.7.

11 IAC 1-3-1

It can be an affirmative defense:
(1) if the telephone solicitor can demonstrate by clear and convincing evidence that the telephone solicitor at the time of the alleged violation had obtained a copy of the updated no call list, established and implemented, with due care, reasonable practices and procedures to effectively prevent unsolicited consumer telephone calls, trained the telephone solicitors personnel in the requirements of this section, and maintained records demonstrating compliance. The unsolicited call was the result of an error. This defense cannot be used more than once within a twelve month period.
(2) if a telephone solicitor can indicate by clear and convincing evidence that the consumer affirmatively listed or held out to the public such consumer’s residential number as a business number, the solicitor had knowledge of and relied upon such consumer’s actions at the time of the alleged violation, and the purpose of the call was directly related to the consumer’s business.

SB 296 §2 (6)g and h

Kentucky

It shall be a defense that:
(1) the defendants obtained the current zero call list in a timely manner and made a reasonable effort to avoid calling persons who are on the list.
(2) the defendant has established and implemented, with due care, reasonable practices and procedures to prevent solicitations in violation.

§367.46995 (2) and (3)

Louisiana

None

Maine

A person is not in violation if the person obtained the listing of a consumer in accordance with the regulations but called the consumer as a result of a good faith error.

§14716 (3B)

It shall be a defense that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent unsolicited telephonic sales calls in violation of this chapter.

HB 5225 §9

Minnesota

It shall be a defense that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation.

§325E.316 (2A)

Missouri

It shall be a defense that the defendant established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation.

§407.1107 (4)

New York

A person is not held liable if the person had obtained a copy of and updated, quarterly the no telemarketing sales calls registry and has established and implemented written policies and procedures related to requirements of this section. The person has trained his or her personnel in the requirements of this section. The person has records demonstrating compliance and any subsequent unsolicited telemarketing sales call is the result of error.

§399-z(7)

Oklahoma

For a lesser fine, the telemarketer is able to demonstrate that the violation occurred notwithstanding policies of the telemarketer that were an integral part of training of the individual or individuals responsible

§775B.6(c)

Oregon

None

Pennsylvania

It is an affirmative defense that the telemarketer is not in violation if he has established and implemented written procedures to comply with this section, and he has trained his personnel in the procedures. The telemarketer acting on behalf of the seller has maintained and recorded the lists of residential telephone subscribers who may not be contacted. Any subsequent call is the result of error.

HB 1469 §2E

Tennessee

The violation must be made knowingly.

§65-4-405 (f)

Texas

It is not in violation if the telemarketing call is an isolated occurrence made by a person who has in place adequate procedures to comply.

§43.103 (2)

Vermont

For a lesser fine, the Court may consider the extent to which a telephone solicitor maintained and complied with procedures designed to ensure compliance.

§3 V.S.A. §2464(c)

Virginia

It shall be an affirmative defense that the defendeant has established and implemented, with due care, reaonable practices and procedures to effectively prevent telephone solicitation calls in violation of this section, including using in accordance with applicable federal regulations a version of the National Do Not Call Registry obtained from the administrator of the registry no more than 31 days prior to the date any telephone solicitation call is made.

§3 V.a. Code 59.1-514(c)

Wisconsin

None

Wyoming

It shall be an affirmative defense that the person called a consumer listed on the national do-not-call list as a result of a good faith error.

§40-12-304(e)