Do Not Call registry complaints by New York state residents have more than doubled since 2014 to more than 450,000 annually, but only two cases were referred for enforcement action in 2016 and 2017 combined, according to an audit released today by State Comptroller Thomas P. DiNapoli.

"The Do Not Call Registry was created to help consumers avoid unwanted, nuisance calls from telemarketers, but requests to investigate violations of the law are going unanswered," DiNapoli said. "Without enforcement of the law, telemarketers will continue to bother people who do not want calls, attempt to steal personal information or take money from the unsuspecting. Officials at the state's Division of Consumer Protection need to do a better job putting unwanted calls on mute."

The New York State Do Not Call Law allows consumers to register their mobile and landline phone numbers on a national registry to reduce unsolicited telemarketing calls. The Department of State's Division of Consumer Protection is responsible for enforcing the 2001 law. Initially, New York consumers registered their phone numbers on a statewide registry. Then, in 2003, the Federal Trade Commission (FTC) and the Federal Communications Commission together created the National Do Not Call Registry. As of Dec. 31, 2017, more than 14 million New York phone numbers were on the registry.

DiNapoli's auditors found the number of Do Not Call complaints by state residents more than doubled from 217,031 in 2014 to 454,100 in 2017, but the number of cases referred to legal counsel at the division fell from 15 to one over that time period. The amount of fines levied dropped from $1.9 million to $44,000. In 2017 and 2016 combined, the division referred only two cases to legal counsel for further enforcement, versus 29 in 2015 and 2014 combined.

New York's Do Not Call program has five staff including a clerk and an investigator devoted full time to Do Not Call. It also has some shared investigative and legal staff. Auditors found personnel turnover and vacancies in key positions at the Do Not Call program hampered its effectiveness. The position of director of investigations, which supervises the Do Not Call unit and decides whether to move forward with a case or close it, had been vacant for approximately 18 months beginning in November 2016. Department officials said the position was filled in May 2018.

As of July 2018, the position of program attorney, responsible for prosecuting alleged violators in administrative hearings and pursuing negotiations, had been vacant nearly a year. Department officials said they have been interviewing to fill the position, which has duties outside Do Not Call as well.

The division director, who is responsible for providing Do Not Call oversight, including assigning cases to an attorney, had been promoted from the attorney position in August 2017 and was performing the functions of both jobs.

DiNapoli's auditors found that the data maintained by the division to document its Do Not Call enforcement efforts was sometimes inaccurate, incomplete or was inconsistent with other information it maintained. In addition, there were no written procedures that provided direction on how to record and maintain the data. Further, the data was not set up to facilitate meaningful analysis, such as year-to-year comparisons or the timeliness of investigative steps.

Division personnel did not maintain a complete and accurate list of active Do Not Call cases and their status. Instead, they maintained multiple spreadsheets of case-related information. In reviewing Do Not Call statistics for the period Jan. 1, 2014 through Sept. 19, 2017, auditors identified conflicting and sometimes missing data.

For example:

• The dates that cases were referred to legal counsel were left blank in most instances;
• Of the 31 cases labeled as open, 14 were actually settled or otherwise closed;
• For seven of the 14 settled cases, settlement information, such as the amount, was missing; and
• According to the 2016 annual report, staff investigated 92,391 complaints and collected $351,007 in penalties. However, the staff was unable to provide support for how they arrived at the number of complaints investigated. Other internal reports indicated only 82,472 complaints were investigated in that reporting period.

Auditors also found that the division could be using the FTC's website, personnel and certain investigative and enforcement strategies more effectively to enhance Do Not Call enforcement efforts in New York. For example, the FTC operates a system that can search the number of complaints on a given business phone number; shares complaint data with other agencies; and analyzes data to identify complaint trends and explore relationships among entities.

DiNapoli called on the Division of Consumer Protection to:

• Assess current and planned Do Not Call enforcement activities to determine appropriate staffing levels, identify timing benchmarks for key enforcement efforts, and identify improvement opportunities;
• Develop, implement, and communicate written procedures to division staff that address the accuracy, completeness, and comparability of internally maintained Do Not Call information; and
• Evaluate the potential for using FTC resources and strategies and consumer-friendly alternatives to notarized affidavits to enhance the Division's Do Not Call enforcement capabilities, and document the resulting decisions.

The Department of State agreed with the audit's findings. Its response is included in the audit.

Read the report, or go to: https://www.osc.state.ny.us/audits/allaudits/093018/sga-2018-17s55.pdf

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