We are not aware of any amendments to the Federal Communication Commission (the “FCC”) rules that went into effect on October 1, 2005. We were able to trace the current provisions regarding written policies and procedures for telephone solicitations and telemarketing back to the rules that went into effect on August 25, 2003. In a nutshell, those rules allow you to place marketing calls to persons with whom you have an established business relationship (even though they may be listed on the national do-not-call registry) unless they specifically request that you do not call them.

This type of marketing call is not treated as a “telephone solicitation” under the FCC rules and would not trigger the need for “written procedures . . . to comply with the national do-not-call registry.” 47 CFR 64.1200(c)(2)(i)(A). However, the FCC rules also use the term “telemarketing,” which is broadly defined and arguably can include calls that you make to people with whom you have an established business relationship. Under the “telemarketing” provisions of the rules, you are required to have a “written policy . . . available on demand, for maintaining a do-not-call list.” 47 CFR 64.1200(d)(1). Consequently, you must have this written policy if you do any telemarketing whatsoever, and it would appear that you must provide a copy of this policy when requested by a person to whom you have placed a call.

The question raised in your situation then becomes whether a bank must make its written policy available to persons who have not received telemarketing calls from the bank but nonetheless have contacted the bank demanding a copy of its policy.

Arguably, if your bank makes any telemarketing calls (even to existing customers), you are required by federal law to provide your Do Not Call policy to anyone upon demand. A 1996 letter written by the Federal Communications Commission (“FCC”) to the Illinois Attorney General’s office appears to support this conclusion even with respect to non-customers who have not been called by you. While we do not agree with this conclusion as it relates to the federal Do Not Call law that later was enacted in 2003, no other guidance is currently available.

We believe that this issue is a serious one involving a distorted reading of federal law leading to a wholesale abuse of our judicial system. We do not believe that the FCC intended its rules to provide a “cottage industry” for the filing of lawsuits by non-customers who have never been contacted by the companies from whom they are demanding responses and threatening litigation. The Illinois Bankers Association has initiated discussions with the FCC in an effort to seek clarification of its rules, and we have begun working with the American Bankers Association, the Minnesota Bankers Association, and other parties who may be interested in responding to this situation.