Even if a home office operating using a residential line is listed as a business in a commercial phone directory, Colorado’s No-Call List, which does not protect business lines, prohibits telephone solicitations to the number.If a telephone salesman calls a number on Colorado’s No-Call List, the law allows the person called to sue and obtain statutorily set damages. Phone lines that the telephone company classifies as business lines can’t be protected from telephone solicitations by Colorado’s No-Call List, largely because businesses invite calls from the general public to a much greater extent that private residences. Jan-Pro Cleaning Services of Southern Colorado made calls to John Holcomb, a lawyer with real estate businesses that he operated from home “from a calling list of business numbers obtained from Info USA and Dun & Bradstreet.” But, the line was still a residential line for the purposes of the phone company.
Holcomb sued, alleging that a call was made in violation of the law implementing Colorado’s No-Call List, a key legislative initiative of then-Colorado Attorney General Ken Salazar. The trial court threw out Holcomb’s case. But the Colorado Supreme Court agreed, in a 4-3 vote, that he had a valid basis for his lawsuit.
The four judge majority ruled Monday that:
Nothing in the provision establishing and prescribing the operation of the no-call list . . . ; the proscription against soliciting residential subscribers on the list, . . . ; or the definition of “residential subscriber” itself, . . . , suggests that using a no-call listed telephone for business purposes or permitting it to appear on commercial telephone listings causes an otherwise qualifying “residential subscriber” to somehow lose the protections of the Act.
The majority left the application of any defenses for the trial court applying its ruling, but stated that the defense of making a good faith effort to comply applies “on its face, only to persons or entities that have otherwise fully complied with the provisions of the Act and have both established and implemented written practices and procedures to effectively prevent telephone solicitations in violation of the Act[.]”
The three dissenting judges in the seven-justice court noted that:
Holcomb had several businesses for which he used his residence number as his business number that might have been included on business phone lists such as those compiled by Info USA: “You know . . . from Google phone numbers . . . he’s Virtual Business Services . . . Holt Realty . . . Attorney Realty . . . Mortgage Max. There’s all kinds of businesses on here. Info USA could easily pick up one of these other businesses on here.” . . .
The county court found that Jan-Pro — by purchasing from reputable companies a list of business phone numbers, requesting listings only by specific SIC codes, and asking that home-based businesses be omitted — established and implemented, prior to this particular call, written practices and procedures to effectively prevent telephone solicitations in violation of the statute. The county court found that Jan-Pro reasonably relied on the lists it purchased as having only business phone numbers, it had utilized the lists for four years without incident, and it would have deleted Holcomb from its call list had he simply asked.
The dissenting justices would have agreed that home offices are covered, but found that a good faith effort to exclude residential numbers from their call list (such as limiting lists to commercial business directories and attempting to exclude home-based businesses) would protect this commercial solicitor from liability in this case, even if the solicitor had not checked its numbers against the Colorado No-Call List.
The No-Call List escaped historical free speech protections for telephone solicitors by securing an individualized indication from telephone customers that they do not wish to receive telephone solicitations and exempting certain particular sensitive kinds of calls such as political solicitations.