Scrubbing Against the Do Not Call Registry: The 31-Day Rule

Thirty-one days. To use the FCC’s Do Not Call safe harbor, a business that makes telephone solicitations has to scrub its call and text lists against a copy of the National Do Not Call Registry obtained no more than 31 days before each call, and keep records showing it did. A company that meets all five as a routine practice, and shows a call to a registered number was an error, has a complete defense to a Registry claim.

What does the 31-day rule actually require?

It requires a recent Registry version and proof of the process, not just a vendor’s assurance.

The National Do Not Call Registry is the federal list of numbers whose owners have said they don’t want telemarketing. The FCC’s rule bars telephone solicitations to a residential subscriber whose number is on it, and registrations “must be honored indefinitely, or until the registration is cancelled by the consumer or the telephone number is removed by the database administrator,” under 47 C.F.R. § 64.1200(c)(2).

The 31-day piece is in the safe harbor. One of its conditions is that the business “uses a process to prevent telephone solicitations to any telephone number on any list established pursuant to the do-not-call rules, employing 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 call is made, and maintains records documenting this process,” per § 64.1200(c)(2)(i)(D).

Read that slowly. The clock runs from the date of the call, not the date the list was built. A list scrubbed on January 2 against a Registry version downloaded that day, and still dialing on February 10, is outside the rule for every call after the 31st day. The same is true of a text campaign scheduled weeks in advance. The FCC applies its Do Not Call rules to “telephone solicitations or telemarketing calls or text messages to wireless telephone numbers,” to the extent described in its 2003 order, under § 64.1200(e).

What are the other four safe harbor conditions?

Written procedures, training, an internal list, and a proper paid Registry account. All five appear in § 64.1200(c)(2)(i), and the business also has to show “that the violation is the result of error.”

The first condition is written procedures to comply with the national Do Not Call rules. The second is training of personnel “and any entity assisting in its compliance.” The third is a maintained list of numbers the seller may not contact. The fourth is the 31-day scrub with documentation. The fifth, in § 64.1200(c)(2)(i)(E), is about how the Registry data is bought and used: the business must use the data only for compliance, and it “purchases access to the relevant do-not-call data from the administrator of the national database and does not participate in any arrangement to share the cost of accessing the national database.”

In my view, that fifth condition is easier to miss than the scrub itself, because a calling vendor can run every client’s list through one subscription without anyone at the seller noticing. The FTC’s rule says “No person may participate in any arrangement to share the cost of accessing the National Do Not Call Registry,” including arrangements with a telemarketer or service provider “to divide the costs to access the registry among various clients,” in 16 C.F.R. § 310.8(c). A seller needs its own account, even when a vendor runs the scrub.

How much does Registry access cost, and who has to pay?

The seller pays, by area code, and the first five area codes are free.

The FTC’s fee rule sets the annual charge at “$80 for each area code of data accessed, up to a maximum of $22,038,” with no charge “for accessing the first five area codes of data,” under 16 C.F.R. § 310.8(c). Those are the amounts in effect as of this writing, and the FTC adjusts them. Under § 310.8(a), it’s a violation for a seller to have calls made into an area code before it has paid for that area code’s data, “either directly or through another person,” unless it calls only people who gave written consent or have an established business relationship with it and never accesses the Registry for anything else.

Paying through a vendor is allowed. Sharing one account across sellers isn’t. When a vendor accesses the Registry for clients, § 310.8(e) requires it to “identify each of the sellers on whose behalf it is accessing the registry” and provide “each seller’s unique account number.” If your vendor can’t give you your own account number, I’d treat that as a compliance gap. The FTC’s Telemarketing Sales Rule has its own safe harbor with the same 31-day requirement, in 16 C.F.R. § 310.4(b)(3)(iv), and our post on the Telemarketing Sales Rule and the TCPA covers how the two regimes overlap.

When does a call to a registered number count as an error?

Guidance is thin, but a mistake made despite real procedures has qualified.

Simmons v. Charter Communications, Inc., 222 F. Supp. 3d 121 (D. Conn. 2016), is a useful example. A vendor calling for the cable company dialed a number on the Registry four times, trying to reach a customer with the same last name as the plaintiff. The court granted summary judgment mainly because the vendor, not the cable company, placed the calls. It then turned to whether the plaintiff could amend to add a vicarious-liability theory. The court noted that neither side cited, and it wasn’t aware of, authority on the type of error the safe harbor requires. It found the calls were made in error, observing that the seller had believed the number belonged to an existing customer. In ruling that amendment would be futile, it held that the seller met the safe harbor for the vendor’s calls, pointing to the compliance terms in the calling contract. As the district court put it, “When a company employs the services of a vendor to make calls on its behalf, there is no better way to ensure compliance with the TCPA than to include such compliance as an essential term of the contract.” The Second Circuit affirmed in a summary order “for substantially the reasons stated” in the district court’s opinion. It’s one district court’s view, on its facts, and it doesn’t bind courts elsewhere.

Citing an FCC enforcement decision, the Simmons opinion noted that a company can’t claim error by showing only that it “meets all other safe harbor criteria or incorrectly believes that it need not comply with national do-not-call requirements.” That’s the practical line I’d draw for clients: a skipped scrub, a stale file, or a decision to leave texts out of the scrub won’t look like an error. A wrong match, a data-transfer glitch, or a number that changed hands looks like one, if the logs can show it.

Is the statute’s reasonable-practices defense different from the FCC safe harbor?

It’s a separate defense with different wording, and it’s worth pleading both.

The statute itself gives every Do Not Call defendant this: “It shall be an affirmative defense in any action brought under this paragraph that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection,” in 47 U.S.C. § 227(c)(5).

That text doesn’t mention 31 days or an error requirement. In my view, a company that missed one of the FCC’s five conditions on a technicality, such as a scrub that ran on day 33, should still argue the statutory defense on the strength of everything else it did. Courts will look closely at the facts. Don’t skip the argument.

The private claim also has a built-in threshold. It belongs, under § 227(c)(5), to a person “who has received more than one telephone call within any 12-month period by or on behalf of the same entity” in violation of the regulations. A single call or text to a registered number doesn’t support a private Do Not Call claim.

Registry claims and the defenses the scrub records support

The damages and trebling rules are in 47 U.S.C. § 227(c)(5). Whether to increase an award for willful or knowing violations is up to the court.

Records to pull when a Do Not Call claim arrives

A Registry claim is usually won or lost on documents you either kept or didn’t. Before responding:

1. Issue a litigation hold covering the call and text logs, dialer and texting-platform data, and any consent or permission records for the numbers involved.
2. Export the internal do-not-call list and opt-out logs, with the date each request was received and processed.
3. Pull the Registry scrub records for each campaign: the date each Registry version was downloaded, the date each list was scrubbed, the dates the calls or texts went out, and the seller’s own Registry account number.
4. Collect vendor and lead-source contracts, the written Do Not Call procedures and training records, call scripts, and any recorded messages.
5. Talk to a lawyer before replying to the demand letter, contacting the person, or offering anything to settle.

Those records also tell you whether the case belongs in early settlement talks or a dispositive motion. The firm’s TCPA defense attorneys in California page describes how TCPA claims, including Registry claims, move through state and federal court.

Do Not Call scrubbing questions from compliance teams

How often should we scrub our calling and texting lists?

Often enough that no call goes out on a Registry version older than 31 days. Under the FCC’s rule, the clock runs to the date of each call, so a long campaign needs rolling scrubs. Scrubbing weekly, or right before each send, leaves margin for delays. Keep the download and scrub dates either way.

Does the Registry cover text messages?

The FCC applies its Do Not Call rules to “telephone solicitations or telemarketing calls or text messages to wireless telephone numbers,” under § 64.1200(e). I’d scrub every marketing text list the same way you scrub call lists. The cost is low and the downside of skipping it is high.

Can our calling vendor scrub our list under its own Registry account?

The vendor can run the scrub, but the access should be paid under your company’s own account. The FTC’s fee rule bars cost-sharing arrangements across a vendor’s clients, and the FCC safe harbor requires that the seller purchase access and not share costs. Ask the vendor to confirm which account number it uses for your scrubs.

Do we need to scrub numbers of our existing customers?

The statute’s definition of telephone solicitation excludes calls to a person with whom the caller has an established business relationship or who gave prior express invitation or permission. For a number on the Registry, the FCC’s rule requires that permission to be a signed, written agreement naming the seller and the number. Under the FCC’s rule, that relationship lasts 18 months after a purchase or three months after an inquiry, and a do-not-call request ends it. I’d scrub customers too and suppress by records.

If your company is facing a Do Not Call claim

If your company is accused of calling or texting numbers on the National Do Not Call Registry, the scrub dates, the Registry account records, and the written procedures usually decide whether the safe harbor or the reasonable-practices defense applies. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving calls and texts to numbers on the Registry. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, in the eCFR version as of February 28, 2025. The FTC’s Registry fee and Telemarketing Sales Rule provisions are at 16 C.F.R. § 310.8 and 16 C.F.R. § 310.4, in the versions as of the same date.

The court decision is Simmons v. Charter Communications, Inc., 222 F. Supp. 3d 121 (D. Conn. 2016), aff’d, 686 F. App’x 48 (2d Cir. 2017) (summary order).

This post is general information about the Telephone Consumer Protection Act and related laws as of February 28, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.