When a TCPA lawsuit arrives, it’s easy for panic to set in. Many businesses feel pressure to settle quickly or rush into litigation just to make the problem go away. But before you make any fast decisions, it’s worth taking a step back. In some cases, you may have another option: the TCPA’s Do Not Call (DNC) Safe Harbor.
This safe harbor won’t apply to every claim—for example, autodialer and prerecorded/artificial voice violations are excluded—but if you’re facing a pure do not call allegation, it may provide a valuable affirmative defense. The key is being able to show that your business has established and implemented, with due care, reasonable practices and procedures to comply with the DNC rules.
So what does that actually look like? Let’s walk through four core components.
1. A Written Do Not Call Policy
Every business that engages in telemarketing should have a written DNC policy—full stop. This policy should clearly outline:
- How your numbers are scrubbed against the National Do Not Call Registry (when applicable)
- How your internal DNC list is maintained
- How your business receives, processes, and honors DNC requests
This document serves as both a compliance roadmap for your team and an important part of demonstrating “reasonable practices” if you ever need to raise the safe harbor as a defense.
2. Regular Staff Training
Even the best-written DNC policy won’t help if employees aren’t following it. Training is essential and ties directly into the statute’s “due care” requirement.
Your approach should include:
- Onboarding training for all new hires
- Annual (at minimum) refresher training for all staff involved in telemarketing
- Additional training whenever your policies or regulations change
When staff understand their obligations, mistakes are far less likely to occur. You’ll be in a stronger position to argue that any violation was a true accident rather than a compliance failure.
3. Maintaining an Internal Do Not Call List
Every telemarketing organization is required to maintain its own internal DNC list. Here are a few best practices:
- Keep numbers on the list for at least five years, as the TCPA requires
- Consider keeping them indefinitely to avoid confusion or complaints
- Scrub your internal list before[LB1] making any telemarketing calls or texts
This list is one of the core elements a court or regulator will look for when evaluating whether your business has reasonable procedures in place.
4. Honoring Requests Promptly — Faster Than 10 Days?
Recent FCC regulatory changes add another compliance wrinkle. While businesses must honor DNC requests or consent revocations within 10 business days, the regulation also states they must be honored as soon as reasonably possible.
Plaintiffs’ attorneys are already arguing that with modern automation, 10 days may no longer be “reasonable” and that updates should occur immediately—or at least within one business day. We expect to see more litigation testing those boundaries, so now is the time to review how quickly your systems process these requests.
When the Safe Harbor Can Help
If you’ve invested in the right policies, procedures, and training, and a genuine mistake still occurs, the DNC Safe Harbor may provide a strong defense. But it only works if you can demonstrate that you:
- Maintained a written DNC policy
- Trained your staff regularly
- Honored opt-outs promptly
- Kept a properly managed internal DNC list
- Scrubbed numbers as required
This defense won’t help if you ignored the rules or failed to maintain a compliant system. But for businesses that take compliance seriously, it can be a powerful shield.
In the face of potential Do Not Call litigation, taking a moment to pause, review, and understand your options can make all the difference. If you’ve received a DNC complaint, or simply want to strengthen your Do Not Call compliance program, we can help you evaluate your practices, tighten your procedures, and determine whether the safe harbor may apply.
