One ‘Stop’ Could Cost You: Telemarketing Risks for Remodelers

Telemarketing class actions are shifting back to the basics, and contractors need to take notice, according to D.S. Berenson, an attorney speciating in issues affecting the remodeling and home improvement sector.

Actions are focusing on claims where contractors failed to place consumers on an internal do not call list, failed to make the necessary disclosures in their opening script, contacted consumers outside of the allowable calling days/times, and failed to cross-reference “stop-calling” requests.

Your call-center operators should have a do not call (DNC) rebuttal script that is read as soon as a consumer requests to be placed on the internal DNC or as soon as a consumer complains that they are being called even after they asked to be on the DNC. A contractor’s DNC list is supposed to be maintained for five years.

The FCC made clear that consumers can revoke their consent to communication as long as they use a reasonable manner and clearly expresses a desire not to receive further calls or texts.  So, any reasonable effort by a consumer to revoke consent to receive communications has to be followed by the contractor.

Berenson notes that while contractors can create method-specific revocation options (“text us to opt-out,” etc.), they cannot limit the revocation to a particular method, i.e.  a consumer can call to revoke texting authorization and they can text to revoke calling authorization.

The FCC has yet to address how this issue is going to be interpreted, but Berenson says his position is that contractors should err on the side of caution. Meaning, any indication from a consumer that could reasonably suggest an effort to revoke consent should be taken as an actual revocation. So, the use of any words along the lines of “stop,” “end,” “cancel,” “opt-out,” “revoke,” or “unsubscribe” should be considered valid as revocation.

And note an important change: contractors now have only 10 business days (down from 30 days) after receipt of the request to implement that revocation and get that consumer on your internal do-not-call list (this is an important change.

Berenson said he has received numerous questions about responding to a consumer’s revocation request and attempts to get clarification—did the consumer mean to revoke texting consent or did they mean to cancel all communications, including informational ones? Or did they only mean to cancel telephone calls?

If contractors want to respond to an opt-out request to try and get further clarification, Berenson cautions to do so in such as way that the follow-up contact can’t be argued to be a marketing communication.  He suggests something along the lines of:

This is a one-time generated SMS text message not linked to any marketing purpose. We are confirming that you have opted out from receipt of future [text communications] [all communications]. If this was incorrect you can respond via this text and let us know or you can call us at________________. Thank you.

Berenson also clarifies a miscommunication about the FCC granting limited waivers delaying the effective date of the revocation rule until Jan. 31, 2027. The rule itself wasn’t delayed, however, the requirement that a revocation request in response to one type of message be treated as a revocation for all communications was delayed. The FCC had initially made clear that any request to stop communications (informational or marketing) should be treated as a request to stop all communications, for all purposes.

So, companies engaged in multiple marketing methodologies or that have telemarketing or texting consent with a particular consumer in regard to multiple transactions or across numerous affiliates, will be allowed to treat a revocation request only as it might apply for a particular message or messaging methodology (such as only to marketing calls or only to texting) until at least next year.