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| FTC | RIN: 3084-AA98 | Publication ID: Fall 2008 |
| Title: Telemarketing Sales Rule | |
| Abstract: This rulemaking is related to RIN 3084-AA86. In 1995, the Commission issued the Telemarketing Sales Rule (TSR), 16 CFR part 310, under the Telemarketing and Consumer Fraud and Abuse Prevention Act (Telemarketing Act), 15 U.S.C. 6101 to 6108. The TSR requires telemarketers to disclose information; prohibits misrepresentations; limits the times telemarketers may call consumers; prohibits calls to consumers who ask not to be called again; and sets payment restrictions for the sale of certain goods and services. In the fall 2003 agenda, the Commission reported that it had completed its review of the TSR as required by the TSR Act. Among other changes, the amended TSR established the National Do-Not-Call Registry, enabling consumers to register their preference not to receive telemarketing calls (68 FR 4580; Jan. 29, 2003). To date, consumers have registered over 145 million telephone numbers on the Registry, which accepts home land line and personal cell phone numbers at http://www.donotcall.gov or 1-888-382-1222. On July 31, 2003, the Commission published a Final Rule further amending the TSR by establishing the fees that would be charged to entities engaged in telemarketing that access the National Do-Not-Call Registry (68 FR 45134). The Consolidated Appropriations Act of 2004, Public Law No. 188-199, 188 Stat. 3, Division B, title V (Appropriations Act), required that the Federal Trade Commission amend the TSR within 60 days of enactment to require telemarketers subject to the TSR to obtain from the FTC the list of telephone numbers on the National Do-Not-Call Registry once a month. After notice and comment, the Federal Trade Commission amended the TSR on March 23, 2004, requiring that telemarketers subject to the Rule access the National Do-Not-Call Registry and purge numbers on the registry from their call lists every month, instead of every quarter as the Rule originally required, and also allowing a consumer to assert a valid "do-not-call" complaint 30 days after entering his or her number rather than waiting 3 months as originally required (69 FR 16368; Mar. 29, 2004)(Final Rule); (69 FR 7330; Feb. 13, 2004)(NPRM). As shown by the timetable entries below, there were periodic rulemakings from 2004 to 2006 to adjust the fees charged to those entities or telemarketers which accessed the Registry. Recent legislation provides for routine fee increases based upon the Consumer Price Index (CPI), eliminating the need for periodic rulemaking previously used to adjust fees. See "Do-Not-Call Registry Fee Extension Act of 2007" (Feb. 15, 2008; Pub. L. No. 110-188). This law authorizes the Commission to collect fees from telemarketers, sellers, and service providers who access registered telephone numbers through the National Registry. On July 18, 2008, the Commission approved a Final Rule updating the fees charged to entities accessing the National Do-Not-Call Registry to conform to the fee structure specified in the Act (73 FR 43354). The fee amount for Fiscal Year 2009 will be $54 per area code of data up to a maximum of $14,850. The amount of the fees will be adjusted each fiscal year based on changes in the CPI. The first five area codes of data will still be provided at no cost and those entities exempt from the Registry's requirements may still access the National Registry without paying a fee. On November 17, 2004, the Commission published an NPRM proposing to create a new safe harbor that would allow prerecorded messages in certain defined situations, announcing the Agency's forbearance from enforcing the TSR's current call abandonment provisions against callers that engage in prerecorded message telemarketing so long as they comply with the proposed change, and seeking comment on a requested change in the method used to calculate the percentage of abandoned calls (69 FR 67287). The comment period ended on January 10, 2005. On October 4, 2006, the Commission issued a revised NPRM and announced that it would not create a new safe harbor for prerecorded messages and therefore would end its forbearance policy permitting such messages effective January 2, 2007 (71 FR 58716). The revised and extended comment period ended on December 18, 2006 (71 FR 65762). The revised NPRM proposed to make explicit that the TSR's call abandonment provision bars sellers and telemarketers from delivering a prerecorded message when a person answers a telemarketing call, except in the very limited circumstances permitted in the call abandonment safe harbor and when a consumer has consented, in writing, to receive such calls. The revised NPRM also proposed to change the method for measuring the maximum allowable call abandonment rate in the call abandonment safe harbor provision from "3 percent per day per calling campaign" to "3 percent per 30-day period per calling campaign." On November 3, 2006, the Commission granted a petition requesting a 40-day extension to the original 30-day comment period on the revised NPRM from November 6, 2006, to December 18, 2006 (71 FR 65762; Nov. 9, 2006). On December 18, 2006, the Commission granted four petitions requesting an extension of its enforcement forbearance policy permitting prerecorded calls subject to certain conditions until the conclusion of the prerecorded call rulemaking proceeding (71 FR 77634; Dec. 27, 2006). On August 19, 2008, the Commission announced a final rule amending the TSR provisions relating to prerecorded calls (73 FR 51164; Aug. 29, 2008). One amendment expressly bars telemarketing calls that deliver prerecorded messages, unless a consumer previously has agreed to accept such calls from the seller. This provision will be effective on September 1, 2009. The Commission is ending the current policy of forbearing from bringing enforcement actions against sellers and telemarketers who place prerecorded calls that meet certain specified conditions that would be inconsistent with the new requirements; but permitting sellers, as under the forbearance policy, to continue for one year after the rule's publication to place calls delivering prerecorded messages to consumers with whom they have an established business relationship, after which no prerecorded message calls can be made to consumers without their express permission. Another amendment requires that, by December 1, 2008, sellers and telemarketers provide, at the beginning of all prerecorded messages, an automated keypress or voice-activated interactive opt-out mechanism so that consumers can opt out as easily as they can from a live telemarketing call. Finally, there is a related technical amendment that was effective on October 1, 2008, modifying the TSR's method of calculating the maximum permissible level of "call abandonment" from "3 percent per day per calling campaign" to "3 percent per 30-day period per calling campaign." | |
| Agency: Federal Trade Commission(FTC) | Priority: Substantive, Nonsignificant |
| RIN Status: Previously published in the Unified Agenda | Agenda Stage of Rulemaking: Completed Actions |
| Major: No | Unfunded Mandates: No |
| CFR Citation: 16 CFR 310 | |
| Legal Authority: 15 USC 6101 to 6108 | |
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Legal Deadline:
None |
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Timetable:
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| Regulatory Flexibility Analysis Required: No | Government Levels Affected: None |
| Small Entities Affected: Businesses | Federalism: No |
| Included in the Regulatory Plan: No | |
| RIN Information URL: www.ftc.gov/opa/2004/11/tsramend.htm | |
| RIN Data Printed in the FR: No | |
| Related RINs: Related to 3084-AA86 | |
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Agency Contact: Craig Tregillus Attorney Federal Trade Commission Bureau of Consumer Protection, 600 Pennsylvania Avenue NW, Washington, DC 20580 Phone:202 326-2970 Email: ctregillus@ftc.gov Kelly Horne Attorney Federal Trade Commission 600 Pennsylvania Ave. N.W., Washington, DC 20580 Phone:202 326-3031 Email: khorne@ftc.gov |
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