2E- 2- Telemarketing Sales Rule (TSR), Telephone Consumer Protection Act of 1991, and the Do-Not-Call Registry

i. Do-Not-Call Registry (Who May Be Called?)

A key component of the TSR is the creation of the national Do-Not-Call Registry. The Telemarketing and Consumer Fraud and Abuse Prevention Act authorizes the FTC to adopt "a requirement that telemarketers may not undertake a pattern of unsolicited telephone calls which the reasonable consumer would consider coercive or abusive of such consumer's right to privacy." Pursuant to Pub. L. 108-82, Congress expressly authorized the FTC to implement and enforce the Do-Not-Call Registry under this provision. The Do-Not-Call Registry provides a means by which consumers may register phone numbers that they do not wish to be called by telemarketers, subject to a handful of exceptions. As of the most recent biennial report from the FTC, there were 229 million numbers listed in the registry. The FTC considers it an "abusive" practice—and therefore a violation of the TSR—to call a telephone number listed on the Do-Not-Call Registry. Both "sellers" and "telemarketers" must access the national Do-Not-Call Registry to obtain the numbers listed in a given area code prior to making any solicitation calls to consumers in that area code. Failure to do so is a violation of the TSR unto itself. Because the regulations prohibit makingany call to a given area code without first checking the registry, this means that making a call to a specific phone number may be a violation even if that number is not listed on the registry. Call lists must be updated every 31 days with updated registry numbers. Under the TSR, it is also an "abusive" telemarketing practice to call an individual that has previously stated that he or she does not wish to receive telemarketing calls from, or made on behalf of, a specific seller or charitable organization. Accordingly, telemarketers and sellers are individually responsible for maintaining entity-specific Do-Not-Call lists. Two distinct corporate divisions are considered separate sellers under the TSR, and therefore they may have separate entity-specific Do-Not-Call lists. In making a determination whether a corporate division is a separate entity for purposes of this rule, sellers must consider "whether there is substantial diversity between the operational structure of the divisions and whether the goods or services sold by the divisions are substantially different from each other." Telemarketers are prohibited under the TSR from denying or interfering in any way in a consumer being placed on the Do-Not-Call Registry or an entity-specific Do-Not-Call list. Exceptions: There are two main exceptions by which calling a phone number on the Do-Not-Call Registry will not be considered a prohibited, "abusive" telemarketing practice. First, an outbound call is not considered abusive if the seller or telemarketer can "demonstrate that the seller has obtained the express agreement, in writing, of such person to place calls to that person." This consent must state the number permitted to be called and include the consumer's signature (either written or electronic). The FTC has provided the following guidance under this "written permission" exception: -If a seller seeks a consumer's permission to call, the request must be clear and conspicuous, and the consumer's assent must be affirmative. If the request is made in writing, it cannot be hidden; printed in small, pale, or non-contrasting type; hidden on the back or bottom of the document; or buried in unrelated information where a person would not expect to find such a request. A consumer must provide consent affirmatively, such as by checking a box. For example, a consumer responding to an email request for permission to call would not be deemed to have provided such permission if the "Please call me" button was pre-checked as a default. Second, an outbound call is not "abusive" if the seller or telemarketer can "demonstrate that the seller has an established business relationship with such person, and that person has not stated that he or she does not wish to receive outbound telephone calls" from the seller. An "established business relationship" is one which is based upon a transaction between the seller and consumer within the last 18 months or an inquiry or application by a consumer regarding a product that has occurred within the last 3 months. Subscription Account Numbers: In order to access the Do-Not-Call Registry, sellers and telemarketers must pay an annual fee for each area code accessed (with an upper maximum fee). After paying this fee and establishing a profile of identifying information, a seller or telemarketer is provided a Subscription Account Number ("SAN") that will allow them to access the registry database. Only sellers, telemarketers, their service providers, and law enforcement agencies are permitted to access the registry. Any person accessing the registry must certify under penalty of perjury that they are accessing the registry solely for purposes of complying with the TSR. It is considered an "abusive" telemarketing practice under the TSR to sell, rent, lease, purchase, or use any list of numbers collected under the Do-Not-Call Registry, except as necessary to comply with the TSR. Telemarketers may access the registry at no cost to themselves by providing the SAN of the seller on whose behalf they are making marketing calls. Prior to accessing the registry, however, they too must certify under penalty perjury that the person they are accessing the registry on behalf of is doing so only for purposes of complying with the TSR. The access telemarketers have when acting on behalf of a seller-client is limited to the area code access paid for by the seller-client. If a telemarketer accesses the registry on its own behalf, their SAN may be used only for their purposes; in other words, SANs may not be divided nor are they transferrable. Safe Harbor: Sellers and telemarketers may qualify for safe harbor protection against an enforcement action for a violation of the Do-Not-Call Registry rules. To qualify for safe harbor protection, a seller or telemarketer must meet the following conditions: (1) The seller or telemarketer has established and implemented written procedures to honor consumers' requests that they not be called; (2) The seller or telemarketer has trained its personnel, and any entity assisting in its compliance, in these procedures; (3) The seller, telemarketer, or someone else acting on behalf of the seller or charitable organization has maintained and recorded an entity-specific Do-Not-Call list; (4) The seller or telemarketer uses, and maintains records documenting, a process to prevent calls to any telephone number on an entity-specific Do-Not-Call list or the National Do-Not-Call Registry, provided that the process involves using a version of the National Registry downloaded no more than 31 days before the date any call is made; (5) The seller, telemarketer, or someone else acting on behalf of the seller or charitable organization monitors and enforces compliance with the entity's written Do-Not-Call procedures; and (6) The call is a result of error. Enforcement: The Do-Not-Call Registry is enforced by the FTC, the FCC, and state attorneys general. Civil penalties for a party found to be in violation of its provisions can be as high as $42,530 for each improper call.

i. "Prompt" Oral Disclosures (How Calls Can Be Made)

Any telemarketer making an outbound call—i.e., one initiated by the seller or telemarketer—must "promptly" disclose in a clear and conspicuous manner: (1) the identity of the seller; (2) that the purpose of the call is to sell goods and services; and (3) the nature of the goods or services. If a prize promotion is offered, the telemarketer must "promptly" disclose that no purchase or payment is necessary to participate or win, and that a purchase or payment does not increase the chances of winning. If a consumer asks, a telemarketer must disclose how to enter the prize promotion without any purchase or payment. Failure to make these disclosures is considered an "abusive" telemarketing practice. The same rules apply whenever a telemarketer attempts to "upsell" a consumer, which is any soliciting of goods or services during a telephone call that occurs after an initial transaction. Under the TSR, any upsell is considered a separate telemarketing transaction, rather than a continuation of any prior solicitation or purchase, even if made as part of the same telephone call. These disclosures are required in an "upsell" situation even if the initial call did not require that these prompt disclosures be made. For example, if an outbound service call is made to inquire about customer satisfaction of a prior purchase, the initial disclosures would not be required. But if the telemarketer attempts an "upsell" after the customer responds to the initial service call inquiries, these prompt disclosures must be made at the beginning of any "upsell" solicitation. In the context of a charitable solicitation, similar prompt disclosures must be made, which include disclosing the identity of the charitable organization and that the purpose of the call is to solicit a charitable contribution. Some calls may be made for multiple purposes—one purpose may be sale- or promotion-related and another not. The FTC has advised that in any dual-purpose call, the initial "prompt" disclosures must be made at the beginning of the entire call, rather than at the beginning of just the sale or donation portion of the call.

ii. TCPA Prohibitions (Who May Be Called?)

Beyond the Do-Not-Call Registry, the TCPA prohibits telemarketers from calling emergency telephone lines; any guest or patient room in "a hospital, health care facility, elderly home, or similar establishment"; or any cell phone or similar device that would result in a charge or fee to the user. Additionally, telemarketers may not use an "automatic telephone dialing system" to call two or more lines of a multi-line business simultaneously. These are express statutory prohibitions that the FCC has expanded upon through its rulemaking authority. Under the FCC rules, telemarketers may not call a telephone number for the purpose of determining whether it is a facsimile or voice line.

xi. Assisting or Facilitating Violations of the TSR (How Calls Can Be Made)

In addition to all of the above requirements, it is a "deceptive" trade practice—and thus, a violation of the TSR—to "provide substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice" that would be a deceptive or abusive telemarketing practice under the TSR.

i. Enforcement of the TSR (Enforcement of Telemarketing Rules)

The TSR is enforced by the FTC at the federal level. Both private litigants and state attorneys general are also permitted to enforce the TSR, provided they serve written notice to the FTC prior to initiating suit, at least where it is feasible to do so. The TSR does not preempt state law.118Violations of the TSR are punishable by civil penalties of up to $42,530 per violation.

viii. Prohibition on Fraudulent Transactions (How Calls Can Be Made)

Certain fraudulent transactions or practices are expressly prohibited under the TSR. These include the following: (1) Disclosing or receiving unencrypted account numbers for valuable consideration; (2) Requesting or receiving payment for credit repair services unless (a) the time frame for which such services are offered has already expired; and (b) the seller provides documentation in the form of a consumer report that the results were achieved; (3) Requesting or receiving payment for asset recovery services less than 7 days after the recovered assets were returned to the customer or unless offered by an attorney; (4) Requesting or receiving payment for the sale of advanced-fee loans, if the seller or telemarketer advertises a high likelihood of success in obtaining the loan; and (5) Requesting or receiving payment for debt relief services prior to the altering of terms after negotiation, the customer has agreed to the settlement and made at least one payment under the new terms, and any fee collected for this service is proportional to or a percentage of the amount saved.

vii. Prohibition on Unauthorized Billing (How Calls Can Be Made)

It is a violation of the TSR to cause billing information to be submitted without the "express informed consent" of the customer or donor. Silence cannot be considered a form of consent under this rule. There are no general requirements about how to obtain express informed consent under the TSR, except in the situation in which the transaction involves pre-acquired account information—i.e., where the telemarketer does not get the account information directly from the customer. In the case of a free-to-pay conversion using pre-acquired account information, the telemarketer must still obtain from the customer at least four digits of the account number to be charged and an express agreement by the customer to be charged. This agreement must be audio recorded. In all other cases where pre-acquired account information is used as part of a telemarketing transaction, the account must be identified with enough specificity that the consumer will know what account will be charged and the consumer must expressly agree to the transaction.

vi. Prohibition on Pre-Recorded Messages (How Calls Can Be Made)

In addition to the prohibition on call abandonment, the TSR broadly prohibits telemarketing calls from being placed with pre-recorded messages (often called "robocalls"). An exception under this rule exists where the seller has obtained express written consent. Consent is only valid if obtained pursuant to a clear and conspicuous disclosure, it was not obtained as a condition of purchase, evidences a willingness to receive such calls, and includes the customer's telephone number and signature. A consumer's consent is applicable only as to "specific sellers," which does not include the affiliates or marketing partners of the seller. When a robocall is made with prior consent, a telemarketer must let the phone ring for at least fifteen seconds or four rings. Within two seconds of a completed greeting, the prerecorded message must be connected and promptly disclose that the person called can use an automated interactive voice and/or keypress-activated opt-out mechanism to request to be placed on an entity-specific Do-Not-Call list at any time during the call. This mechanism must "automatically add" the consumer to the list, be available throughout the entire message, and terminate the call once invoked.88 If the consumer's automatic answering machine or voicemail service picks up the call, a telephone number must be provided pursuant to which the person may be added to a Do-Not-Call list; the same requirements apply. An additional exception applies to this rule where an outbound call is made by a covered entity or business associate under HIPAA's Privacy Rule. Moreover, because calls made for purely "informational" reasons do not fall within the definition of "telemarketing" under the TSR, such pre-recorded messages are similarly not subject to this prohibition. Mixed messages—i.e., those made partially for an informational purposes and partially for a solicitation purpose—are not exempt from this prohibition. In 2012, the FCC issued an order that expressly states that text messages sent to mobile devices (called "robotexts") are subject to the same restrictions as pre-recorded voice calls under the TCPA.

How Calls Can Be Made

The TSR and the TCPA dictate not only who can be called, but also how calls must be made. Some of these rules are basic and relatively straightforward. For example, the TSR prohibits telemarketers from calling consumers at their residence other than between the hours of 8:00 a.m. and 9:00 p.m., unless they have prior consent to call at other times. Similarly, telemarketers may not use threats, intimidation, or profane or obscene language during a telemarketing call, nor continuously or repeatedly call a consumer with the intent to annoy, abuse, or harass. Many of the specific rules, however, can be exceedingly detailed. Below is a broad overview of the main regulations under the TSR that set forth how telemarketing activities must be conducted, and certain prohibitions placed upon telemarketers. While the below section focuses heavily on the TSR, it should be noted that in 2012 the FCC revised many of the rules adopted under the TCPA in order to reconcile its rules with the TSR. Under the current regime, both the rules adopted by the FCC and FTC parallel each other. Where the TCPA adds to or differs from the TSR, it will be noted below.

Introduction

The telemarketing industry is regulated by both the Federal Communications Commission ("FCC") and the Federal Trade Commission ("FTC"). With the passage of the Telemarketing and Consumer Fraud and Abuse Prevention Act, Congress directed the FTC to promulgate rules "defining and prohibiting deceptive telemarketing acts or practices."1 From this mandate came the Telemarketing Sales Rule ("TSR"). The TSR defines telemarketing as "a plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution, by use of one or more telephones and which involves more than one interstate telephone call." In concert with the FTC, the FCC has regulatory authority over the telemarketing industry pursuant to the Telephone Consumer Protection Act of 1991 ("TCPA"). The TCPA places restrictions on "telephone solicitations" and "unsolicited advertisements," particularly those that occur using "automatic telephone dialing systems" and fax machines. The FTC and FCC have collaborated closely to ensure that the rules adopted under the TCPA and the TSR parallel each other. Combined, these laws and rulemakings regulate who may be solicited, under what conditions persons may be solicited, how calls must be made, and numerous other technical and record-keeping requirements applicable to telemarketers and their service providers.

iii. Prohibition on Misrepresentations and Material Omissions (How Calls Can Be Made)

As a corollary to the requirement that all material disclosures be made prior to accepting payment, the TSR prohibits telemarketers from making material omissions or outright misrepresentations. Like in the context of material representations noted above, this prohibition broadly applies to all "material" omissions, but the FTC has also set forth specific categories that are likely to affect a customer's decision to purchase or donate. In the context of a commercial solicitation, these material terms mostly mirror the material terms noted above. In the context of charitable donations, however, the FTC has also indicated that telemarketers may not misrepresent: (1) the nature, purpose, or mission of the charity on whose behalf the solicitation is made; (2) the tax deductibility of a donation; (3) the purpose of the contribution; (4) the percentage of the donation that actually goes to the charitable organization or program; (5) material aspects of any prize program; and (6) the affiliations, endorsements, or sponsorships of the charitable organization by any person, organization, or government entity.

Key Points

Both the FTC (through the TSR) and FCC (through the TCPA) regulate telemarketing; the regulations created by both the FTC and FCC closely parallel each other The TSR applies to "sellers" and the "telemarketers" that they hire, as well as any service providers The TCPA applies to anyone making a "telephone solicitation" or "unsolicited advertisement" or anyone that utilizes a fax machine or "automated telephone dialing system" The Do-Not-Call Registry allows consumers to register phone numbers that they do not wish to be called by telemarketers - Telemarketers must also maintain an entity-specific Do-Not-Call List - Consumers on list can be called when: (1) if consumer has provided written permission; or (2) there is an "established business relationship" - In order to access the registry, sellers and telemarketers must obtain a Subscription Account Number, which limits access only to those that need it - Safe harbor protections are available if adequate procedures are maintained and a call is the result of an error - Enforced by FTC, FCC, and state attorneys general The TCPA contains statutory prohibitions on calling certain numbers (e.g., emergency lines) When making calls, telemarketers must do the following: (1) Provide "prompt oral disclosures" (at call outset and on an "upsell") (2) Disclose material terms of any transaction, and not misrepresent or omit material terms (3) Obtain "express verifiable authorization" if payment is not made by credit or debit card (4) Not abandon a call prematurely (must connect to live human within 2 seconds); there is safe harbor protection for this requirement (5) Not use prerecorded messages, without consent (6) Not engage in unauthorized billing, credit card laundering, or fraudulent activities (7) Transmit caller-ID information (8) Not assist or facilitate a violation of the TSR by another person Telemarketers have significant record-keeping requirements (2-year period) TSR is enforced by the FTC TCPA is enforced by FCC and state attorneys general, and it permits a private cause of action

ix. Caller-ID Transmission (How Calls Can Be Made)

In making outbound calls, telemarketers must include accurate caller identification information. It is permissible, however, for telemarketers to substitute the name and customer service telephone number of the seller or charitable organization on whose behalf they are calling in place of their own, provided the customer service number is answered during normal business hours. Telemarketers are not held liable when caller identification information fails to reach a consumer if they can show that they took all available steps to transmit the information.

ii. Required Disclosure of Material Terms (How Calls Can Be Made)

It is considered a "deceptive" telemarketing practice under the TSR to accept payment for any purchase of goods or services prior to disclosing the material terms of the transaction. A material term is any term "likely to affect a person's choice of, or conduct regarding, goods or services or a charitable contribution." The FTC has set forth a list of terms it considers material—some of which apply in all situations, but some of which apply only with respect to specific types of promotions or when soliciting the purchase of certain types of products. At a minimum, material terms will always include the total cost and quantity of the transaction; any material restrictions, limitations, or conditions of the purchase; if a "no refund" policy exists; material terms related to refund, cancellation, exchange, or repurchase policies; and material terms of any "negative option" provisions of the offer (i.e., situations in which the seller will consider silence to be a form of consent). Other additional terms will always be considered material by the FTC in the unique context of prize promotions, when the product or service being offered is credit card loss protection, or when the offer relates to debt relief services. The material terms of an offer may be communicated either orally or in writing, but they must be disclosed in a "clear and conspicuous" manner. As with the other requirements under the TSR, the FTC has set forth informal yet highly-detailed instructions about what the phrase "clear and conspicuous" requires in both the written and oral disclosure context. As just one example of many, the font of any written disclosure must be the same type-size as the sales offer.

ii. Enforcement of TCPA (Enforcement of Telemarketing Rules)

TCPA specifically provides a private right of action for any violation of its statutory prohibitions.Individuals may seek injunctive relief, as well as the greater of actual damages or statutory damages of $500 per violation. If a court finds that a defendant has willfully violated TCPA, actual and statutory fees may be multiplied by three. State attorneys general have the same authority as individual plaintiffs to bring an action against persons violating TCPA, which may result in the same statutory fees applicable in private lawsuits.Jurisdiction over claims brought by a State is exclusively vested in federal courts. Like other federal laws, TCPA provides that the state attorney general must provide prior notice, and the FCC has the right to intervene in any litigation initiated by a state. State laws are not preempted by TCPA, except for those rules related to technical and procedural standards adopted by the FCC. If states set up their own Do-Not-Call registries, however, that state registry must incorporate all of the entries in the national database related to that state.

Record-Keeping Requirements

The TSR also contains important record-keeping requirements. For a period of two years after such records are produced, sellers and telemarketers must keep: • Promotional materials - This includes advertising, brochures, telemarketing scripts, and other promotional materials; • Prize information - This includes the name and last known address of all prize recipients and the prize for all prizes worth more than $25; • Transaction information - This includes the name and last known address of all customers, the goods or services purchased, shipment dates, and amounts paid; • Employee information - Telemarketers must maintain records of the names (including any fictitious name), the last known home address and telephone number, and job title of all current and former employees; and • Customer authorizations - The authorizations required under the TSR, including "express verifiable authorizations," express informed consent, or express agreements must be maintained. While these records may be maintained in any reasonable form in the ordinary course of business, the failure to keep these records constitutes a violation of the TSR. The records must be maintained even after dissolution or termination by the principal of the business, or in the case of a merger, the records must be kept by the successor business. Only one copy of the required records needs to be maintained. Sellers and telemarketers may contract between themselves regarding which party will be responsible for maintaining these records. In the event that no contractual agreement exists regarding record-keeping, the seller has default responsibility, except with respect to employment records.

To Whom and To What the TCPA and TSR Applies

The TSR broadly applies to "sellers," "telemarketers," and their service providers. A seller is defined under the TSR as "any person who, in connection with a telemarketing transaction, provides, offers to provide, or arranges for others to provide goods or services to the customer in exchange for consideration." A telemarketer, on the other hand, is "any person who, in connection with telemarketing, initiates or receives telephone calls to or from a customer or donor." In other words, the "seller" hires the "telemarketer," though sellers may also make telemarketing calls on their own behalf. Under these definitions, a non-profit entity making calls on its own behalf is not subject to the TSR. Similarly, the TCPA places a number of prohibitions on the use of fax machines and "automatic telephone dialing systems," which are the systems used by telephone marketing companies that store, produce, and dial telephone numbers. Any person that utilizes these systems or makes a "telephone solicitation" or an "unsolicited advertisement" is subject to the TCPA. A "telephone solicitation" refers to any telephone call or message soliciting a good, product, or service except those made: (a) to any person that has provided a prior express invitation or permission; (b) to any person with whom the caller has an established business relationship; or (c) by a tax exempt nonprofit organization. An "unsolicited advertisement" is "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted."

v. Call Abandonment Prohibition (How Calls Can Be Made)

The TSR prohibits telemarketers from prematurely abandoning calls to consumers. A call is considered abandoned if the consumer is not connected to a live representative within two seconds of their completed greeting. Connecting a user to a pre-recorded message does not satisfy this obligation. There is a call abandonment safe harbor under the TSR in which telemarketers may avoid liability for abandoning a call. To qualify for this safe harbor, a telemarketer must do four things. First, a telemarketer must use technology that will result in no more than three percent of calls being abandoned during any single calling campaign or any 30-day period thereof. This percentage may not be averaged across multiple campaigns, even if running simultaneous calling campaigns.Second, telemarketers must let a phone ring four times or for at least fifteen seconds. Third, when a live representative is unavailable at the end of the two-second window, the seller or telemarketer must play a pre-recorded message stating the name and telephone number of the seller on whose behalf the call is made. This call cannot contain a sales pitch or other solicitation. And fourth, records must be maintained establishing compliance with these other safe harbor provisions.

x. Credit Card Laundering Prohibited (How Calls Can Be Made)

There are specific provisions of the TSR that are designed to protect against credit card laundering. The TSR deems it a "deceptive" telemarketing practice to present to or deposit into the credit card system a credit card sales draft generated by a telemarketing transaction that is not the result of a sale to the buyer by the person who has the merchant account. Similarly, the TSR prohibits a person from obtaining access to the credit card system through a business relationship or an affiliation with a merchant, when the access is not authorized under the terms of the merchant account or by the applicable credit card system.

iv. "Express Verifiable Authorization"(How Calls Can Be Made)

When telemarketers accept payment by means other than a credit card or debit card, the TSR imposes a requirement that the telemarketer obtain the customer's or donor's "express verifiable authorization." This can be done in either written or oral form. If in writing, the express verifiable authorization must include the customer's or donor's signature, which may be in electronic form. A "voided" signed check sent via facsimile transmission may be sufficient. If given orally, the express verifiable authorization must be audio-recorded and made available upon request to the customer, donor, or the customer's banking or billing entity. Additionally, this oral authorization must include all of the following information: (1) an accurate description, clearly and conspicuously stated, of the goods or services or charitable contribution for which payment authorization is sought; (2) the number of payments; (3) the date or dates payments will be submitted; (4) the amount of the payments; (5) the customer's or donor's name; (6) the customer's or donor's billing information, identified with sufficient specificity; (7) a telephone number for customer or donor inquiry that is answered during normal business hours; and (8) the date of the customer's or donor's oral authorization. Telemarketers may also satisfy this requirement by sending, prior to the submission for payment, a clear and conspicuous written confirmation. This confirmation must be identified as such on the outside of an envelope sent via first-class mail, along with all of the information required in an oral confirmation and the procedures by which to obtain a refund in the event the confirmation is inaccurate. This form of written verification cannot be used for free-to-pay conversions (i.e., where a free trial period converts to a paid service at the end of the trial period) or with pre-acquired account information. Credit cards and debit cards are exempt from this requirement because other consumer protections exist for these forms of payment pursuant to the Truth in Lending Act, 15 U.S.C. § 1601, et seq., Regulation Z, 12 C.F.R. Part 226, and the Electronic Fund Transfer Act, 15 U.S.C. § 1693, et seq., Regulation E, 12 C.F.R. Part 205. The FTC adopted the "express verifiable authorization" requirement because other forms of payment (e.g., utility billing) do not have similar protections, such as protections against unauthorized charges.