To Call or Not to Call

To Call or not to Call—that is the question.
By Paul Herbig

Several of my devoted readers have recently inquired of my services to assist with a problem they are having. It appears the new “No-Call” list created to curb adverse telemarketing practices is displaying what was no doubt due to occur, the law of unintended consequences. It appears every government action creates an unanticipated negative reaction the antithesis of the original intent. And is so the case here.

The original “No Call” list has been extremely popular with tens of millions of people clammerring for their right for privacy. In late September it appeared the law was on the ropes as Direct Marketers tried to use first amendment rights (My right to call you) as rationale for its demise. After court battles and a final quick congressional approval (in less than 24 hours, who says Congress can’t act quickly if they wanted to), the right for people not to have others call them was upheld.

The list has several loopholes, however. It exempts political calls ( did ya really think politicians were going to eliminate their ability to raise funds!!) and non-profits. And it also provides a free reign to any entity which has had a “prior relationship” with the pursued. Here’s where the loophole-so-wide-a-truck-can-drive-through comes in. What defines a relationship? The act does not say. A prior purchase within the previous eighteen months can constitute a relationship. As can submittal of a warranty card or perhaps even an inquiry. I am certain future court battles will be undertaken over this concept and whether or not an entity had a ‘relationship’ with a consumer prior to calling. For the fine to not do so is monetarily stiff (which means some lawyer somewhere is already salivating over prospects for lawsuits).

Therein lies the problem. My friends the insurance agents, brokers, bankers, real estate agents do make considerable calls in their profession. It appears their companies or principals have sent them mucho information and warnings about the potential adverse actions if they inadvertently cold call someone on the No Call list (see note about lawyers above). I am certain Congress and the supporters of the No Call legislation had telemarketers clearly in their sites and the thought of its impact on other professionals probably never once crossed their mind. Nonetheless, the unintended consequences has many of America’s finest professionals wondering what to do about that referral, that call to a prospective client, about contacting that property owner another client has expressed interest in. With today’s legal environment, who knows what legal beagles may be lurking in the shadows just awaiting the opportunity.

What then can such professionals do? One option is to take the chance and call anyway, knowing their actions are not prohibited by the spirit of the law. A second, better approach is to begin the process of establishing a “relationship” with the prospect. This could be done by mailing a letter indicating a friend had referred the prospective client and does he prospect have any objection to the professional calling upon the prospect. A SASE postcard that all the prospect must do is check “Yes. Please call me” would be sufficient to meet the relationship criteria. A third, probably less desirous, is to have the current client who has referred the prospect, to intervene and have the prospect call the professional direct or to hand deliver the SASE postcard and personally garner the necessary signature. Of these three, the first is the status quo and the current area of concern so to do so would expose oneself to additional risks. The third is cumbersome and dependent upon a third party so would not be as timely as one would probably wish. The second choice, the response card, would probably be the safest.

This adds an additional layer of communication between the professional and the prospect. But it also provides the protection and peace of mind for the professional. Intended or not, it is now the law and one has to adapt.