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 31 days prior to the date any call is made, and maintains records documenting this process.

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 they have 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

N/A

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 or 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

A person or entity may not be held liable if:
(1) the person or entity has obtained copies of the registry and each updated registry from Illinois Commerce Commission and has established and implemented written policies and procedures related to the requirements. The person or entity has trained its personnel in the requirements. The person or entity maintains records demonstrating compliance and any subsequent telephone solicitation is the result of unintentional error.
(2) A person or entity that has entered into a contract with another person or entity to make telephone solicitations on its behalf. They have provided written notification under the contract to the person or entity making the telephone solicitations that it is necessary to comply with the provisions of this Act when making telephone solicitations.

In imposing a penalty, the Commission shall, at a minimum, consider the following factors:

1. Whether the offense was knowing or willful;
2. Whether the entity committing the offense has a prior history of non-compliance;
3. The offender's relative ability to pay a penalty;
4. Whether the offender has or has not cooperated with the Commission in pursuing the investigation;
5. Such other special, mitigating, or aggravating circumstances as the Commission may find to exist.

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.

§ 50-670a(g)&(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

A registered telephonic solicitor shall not be liable for violating the do-not-call list if the solicitor can demonstrate that the violation is a result of unintended error and that as part of its routine business practice, it meets the following standards:
(1) the telephonic solicitor has established and implemented written procedures to comply with the do-not-call requirements;
(2) the telephonic solicitor has trained its personnel, and any entity assisting in its compliance, in procedures established pursuant to state requirements;
(3) the telephonic solicitor has maintained a call log of numbers called for solicitation purposes in either chronological or numerical order, and records and maintains an internal “do not call” list for those numbers that may not be contacted;
(4) the telephonic solicitor is registered and uses both the state and national registries to prevent telephonic solicitations to nay telephone number on any list established or mandated to be used;
(5) the telephonic solicitor uses a process to ensure that it does not sell, rent, lease, purchase o ruse any applicable “do not call” database, or any part thereof, for any purpose except in compliance with state requirements and any state or federal law preventing telephonic solicitations to telephone numbers registered on the do not call list.

H.B. 1030
(§  844.17)

Maine

None

N/A

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.

Ch. 159C, §9

Michigan

None

N/A

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)

Mississippi

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

§ 77-3-729

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)

Nevada

None

N/A

New Hampshire

A telemarketer shall not be held liable for violating this subdivision if the telemarketer can demonstrate by clear and convincing evidence that, as part of the telemarketer's routine business practice:

(a) The telemarketer established and implemented written procedures to comply with this subdivision.

(b) The telemarketer trained his or her personnel in the requirements of this subdivision.

(c) The telemarketer uses a process to prevent telemarketing to any telephone number on any do-not-call list or registry referenced in this subdivision; maintains the current, quarterly version of the list or registry; and maintains records documenting this process.

(d) The telemarketer monitors and enforces compliance with the procedures established under subparagraph (a).

(e) The telemarketer uses a version of the do-not-call list obtained no more than 3 months prior to the date that any call is made.

(f) Any subsequent call otherwise violating this subdivision is not part of a pattern of calls made in violation of this subdivision and is the result of a good faith error.

§ 359-E:11 (III)

New Jersey

A person may not be held liable if:
(1)  The person has obtained a copy of, and updated quarterly, the no call list and has established and implemented written policies and procedures related to the requirements of this act;
(2)  The person has trained telemarketers in the person's employ in the requirements of this act;
(3)  The person maintains records demonstrating compliance with subsections (1) and (2) above and the requirements of this act; and
(4)  Any unsolicited telemarketing sales call is an isolated call made no more than one time in a 12-month period.

§ 56:8-132

New Mexico

None

N/A

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)

North Carolina

A fine of only $100 (as opposed to $500) will be imposed if a call is made in compliance with the following: Every telephone solicitor shall implement systems and written procedures to prevent further telephone solicitations to any telephone subscriber who has asked not to be called again at a specific number or numbers or whose telephone number appears in the “do-not-call” registry.  Every telephone solicitor shall train, monitor and enforce compliance by its independent contractors in those systems and procedures.  Every telephone solicitor shall ensure that lists of telephone numbers that may not be contacted by the telephone solicitor.

§§ 75-105; 75-102(d)

North Dakota

None

N/A

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

N/A

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.

73 P.S.
§ 2245.1(e)

South Dakota

In determining the amount of the penalty upon finding a violation, or the amount of a compromise settlement, the commission shall consider the appropriateness of the penalty to the size of the business of the person charged, prior offenses and compliance history, and good faith of the person charged in attempting to achieve compliance.

§ 49-31-108

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.

Bus. & Com. Code § 304.058

Utah

It is an affirmative defense to a violation … that the person making the telephone call … made the telephone in reliance on a current database established by any federal agency and that establishes a national database of telephone numbers of persons who object to receiving telephone solicitations.

 § 13-25A-108

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)