K446789 - 7

How is the DNC registry accessed?

Via an automated website at www.telemarketing.donotcall.gov.

In what format may the records be maintained?

What ever manner, format or medium the company uses in the normal course of business (e.g. paper, electronic).

What is required by the TSR where the telemarketer has obtained the consumer's account information from some other source ("pre-acquired account information")?

special requirements for obtaining express, informed consent apply.

Re: Safe Harbor Requirement #3: what must be included in the pre-recorded message for unanswered calls?

1. Company name 2. Company phone number (must be one to which the consumer can call to be placed on the company's do not call list 3. A statement that the call was for telemarketing purposes.

Who can enforce the TSR?

1. FTC 2. State AGs 3. Private individuals

What is required of a TSR covered organization?

1. call only b/w 8 am and 9 pm 2. screen and scrub names against the national DNC list 3. display caller ID information 4. identify themselves and what they are selling 5. disclose all material information and terms 6. comply with special rules for prizes and promotions 7. respect requests to call back 8. retain records for at least 24 hours 9. comply with special rules for automated dialers

What calls are not counted in determining the 3% of abandoned calls?

1. calls answered by machine, 2. calls that are not answered at all, 3. calls to nonworking numbers

What records must be retained for employees directly involved in telephone sales?

1. name (and any fictitious name used. Fictitious names must be traceable to the real employee) 2. last known home address and phone number 3. job title of each employee

Explain the TSR Exception based on Consent.

Allows sellers/telemarketers to call consumers who consent to receive such calls.

To whom does CAN-SPAM apply?

Anyone who advertises products or services by e-mail directed to / originating from the US.

How many copies of the record must be maintained?

One.

Who may access the DNC Registry?

Only sellers, telemarketers, and their service providers

How many participating phone numbers are there in the DNC?

Over 200 million.

What is required to succeed in an intrusion tort claim?

Plaintiff must show that the intrusion would be highly offensive to a reasonable person.

What was passed by Congress to address unsolicited commercial faxes?

Telephone Consumer Protection Act of 1991 (TCPA)

What happened when California attempted to eliminate the TCPA's EBR exception with legislation applicable to unsolicited faxes sent/received within the in-state?

the law was declared unconstitutional when applied to interstate faxes due to TCPA's preemption of interstate regulation.

What does the CAN-SPAM Act require?

1. commercial emails must have a functioning, clearly and conspicuously displayed return email address that allows recipient to contact sender 2. all commercial emails must include clear and conspicuous notice of the opportunity to opt out along with a cost-free mechanism for exercising the opt-out, such as return email or an opt-out link 3. all commercial email must include (a) clear and conspicuous ID that the message is a commercial message (unless recipient gave prior affirmative consent), and (b) a valid physical postal address of the sender (can be PO box) 4. requires all commercial email containing sexually oriented material to include a warning label (unless recipient provided prior affirmative consent to receive the email)

What are the six broad categories of information that must always be disclosed under TSR to prevent missrepresentations and material omissions?

1. cost and quantity 2. material restrictions and conditions 3. no-refund policy details (if applicable) 4. prize and promotion details (odds of winning and value of the prize) 5. credit card loss prevention program disclosures (for seller offering this service) 6. negative option feature details (if seller uses a negative option)

What does the CAN-SPAM Act prohibit?

1. false or misleading headers 2. deceptive subject lines 3. sending commercial email (following a grace period of 10 business days) to an individual who has asked not to receive future email 4. "aggravated violations" relating to commercial emails such as (a) address harvesting and dictionary attacks, (b) automated creation of multiple email accounts, and (c) retransmission of commercial email through unauthorized accounts.

What must sales records retain under the TSR?

1. name and last known address of each customer 2. goods or services purchased 3. date the goods or services where shipped or provided 4. amount paid for goods / services

What are the exceptions to the DNC Rules?

1. nonprofits calling on their own behalf 2. calls to customers with an existing relationship within the last 18 months 3. inbound calls, provided there is no upsell of additional products or services 4. most business-to-business calls

What is required where pre-acquired account information is used in connection with a free-to-pay conversion offer?

1. obtain from the customer at least the last 4 digits of the account number to be charged 2. obtain the customer's express agreement to be charged for the goods or services using the account number for which the customer has provided at least the last 4 digits. 3. make and maintain an audio recording of the entire telemarketing transaction.

List the DNC Safe Harbor requirements.

1. seller/telem. has established and implemented written procedures to honor consumers' requests that they not be called, and 2. seller/telem. has trained its personnel & any entity assisting in its compliance in these procedures, and 4. seller/telem or someone acting on behalf of seller ... has maintained and recorded an entity-specific DNC list, and 5. Seller/telem uses, & maintains records documenting, a process to prevent calls to any phone number on an entity-specific DNC list or the National Do Not Call Registry (the latter process must involve using a version of the registry from the FTC no more than 31 days before the date that the call is made and 6. The seller, telem, or someone else acting on behalf of the seller monitors and enforces compliance with the entity's written procedures then 7. the call is a result of error

What are some other ways in which states are regulating telemarketers?

1. states can create their own DNC lists with differing exceptions, fines or methods of consumer enrollment from their federal counterpart 2. some states require that telemarketers identify themselves at the beginning of the call 3. Some states require that telemarketers ID themselves at the beginning of the call or that the telem terminate that call w/o rebuttal if the the recipient of the call so desires. 4. states may require that a written contract be created for certain transactions.

What is the abandoned call Safe Harbor under FTC guidance?

1. use technology that ensure abandonment of no more than three percent of all calls answered by a live person, measured per day per calling campaign. 2. allows the telephone to ring for 15 seconds / four rings before disconnecting an unanswered call 3. plays a recorded message stating the name and phone number of the seller on whose behalf the call was placed whenever a live sales rep is unavailable within 2 seconds of a live person answering the call. 4. maintains records documenting adherence to the preceding three requirements.

When has the FTC amended the TSR (Telemarketing Sales Rule)?

2003, 2008, 2010.

What does the FTC have to say about the telemarketers having their own SAN v. using seller-client SANs?

Even though they are not required by law to do so, telemarketers and service providers may gain access to the national registry on their own behalf, but they must pay a separate fee for that ability. Before placing calls on behalf of a seller-client, telemarketers are required to ensure that their seller-client has a valid SAN.

How did Congress respond to concerns about the FCC revision of TCPA regulations (i.e costs and difficulty of obtaining auths from customers)?

Passed the Junk Fax Prevention Act of 2005 (JFPA). It specifically provides that consent can be inferred from an existing business relationship (EBR) and permits sending of commercial faxes to recipients based on an EBR, as long as the sender offers an opt-out in accordance with the act.

True/false: each SAN belongs to a specific seller and is not transferable.

TRUE

What is required of telemarketers re: caller ID?

TSR requires entities that make telemarketing calls to transmit accurate call ID information so it can be presented to consumer with caller ID services. Telem's may transmit their own names and phone numbers, or it may substitute the name of the seller on whose behalf the telemarketer is calling, or the seller's customer-service phone number (so long as its answered during normal business hours).

What are the TSR requirements around billing consumers?

Telemarketers prohibited by TSR from billing consumers for any goods or services without the consumer's "express, informed consent". If the consumer provides the billing account information to the telemarketer during the call, then express, informed consent can be obtained in any nondeceptive manner.

What was the first telemarketing reg issued by the FTC in 1995?

Telemarketing Sales Rule, implementing the Telemarketing and Consumer Fraud and Abuse Prevention Act.

More than half the states require what of telemarketers?

That they obtain a license or register with the state.

What is the DNC Safe Harbor?

if a seller or telemarketer can establish that as part of its routine business practice, it meets the following, it won't be subject to civil penalties or sanctions for erroneously calling a consumer who 1. has asked not to be called, or 2. for calling a number on the National Registry.

When does an EBR exist with a "prospect"?

if the consumer has made an application or inquiry regarding the seller's goods and services. This EBR runs for 3 months from the date of the person's inquiry or application.

What are free-to-pay conversion offers?

offers that begin with a free triel but then convert to paid service at the end of the trial period.

In 2003, the FCC revised the TCPA regulations to do what?

required fax senders to document that they had consent to send faxes by obtaining signed, written authorizations from all prospective recipients. Authorizations must contain numbers to which faxes could be sent.

What did the FCC's 2012 update to the Telephone Consumer Protection Act of 1991 address?

robocalls.

What is the existing business relationship exception to the DNC Rules?

sellers (or their telemarketers) may call a consumer with whom a seller has an established business relationship (EBR), provided the consumer has not asked to be on the seller's entity specific do not call list.

What is the FTC's guidance on who - among sellers, telemarketers - should maintain which records?

sellers/telemarketers don't have to keep duplicative records if they have a written agreement assigning one the responsibility for complying with recordkeeping refs; if there is no written agreement, or if the agreement is unclear, telemarketers keep employee records, while sellers keep the advertising and promotional materials, information on prize recipients, sales records, and verifiable authorizations.

What is the FTC's guidance re: sweepstakes entry forms?

sweepstakes entry forms often have been used in a deceptive manner to obtain "authorization" from a consumer to incur a charge or some other detriment. Authorization or permission obtained through subterfuge is ineffective. The FTC scrutinizes any use of such sweepstakes entry forms as a way to get a consumer's permission to place telemarketing calls to her number."

How does the Telemarketing Sales Rule define "telemarketing"?

"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."

What two relationships does the TSR recognize?

"customers" and "prospects"

What is a traditional privacy tort action that can be used to limit the manner in which commercial orgs can call individuals for marketing and fund-raising purposes?

"intrusion on seclusion" - imposes liability on "one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns.

What are the FTC's two factors that should be used to determine whether do-no-call requests should be shared among corporate divisions?

(1) whether there is a substantial diversity between the operational structure of the divisions, and (2) whether the goods or services sold by the divisions are substantially different from each other

Who has the authority to issue regulations implementing CAN-SPAM?

FTC and did so in 2008 to clarify statutory definitions.

What does the US Do Not Call Registry do?

FTC's TSR requirement; provides a means for US residents to register residential and wireless phone numbers that they do not wish to be called for telemarketing purposes (with some exceptions)

To what do the DNC rules apply?

For-profit organizations & charitable solicitations placed by for-profit telefunders.

How does the TSR define an "abandoned" outbound call?

If a person answers it and the telemarketer doesn't connect the call to a live slaes rep within 2 seconds of the person's completed greeting. 2. consumers can "opt out of future robocalls during a robocall"

What is another way in which the FCC revisions increase harmonization with FTC rules re: assessment of the call abancondment rate during a single 30-day calling campaign"?

If the campaign exceeds 30 days, the abandonment rate must be calculated each successive 30-day period or portion thereof duirng which the calling campaign continuers.

When does an EBR exist with a "customer"?

If the consumer has purchased, rented, or leased the seller's goods or services (or completed a financial transaction with the seller) within 18 months preceding a telemarketing call. The 18 month period runs from the date of the last payment, transaction or shipment b/w the consumer and seller.

What are some of the methods companies can use to obtain prior express written consent for robocalls?

email, website form, text message, telephone keypress, voice recording

Which federal org has issued regs under the Telephone Consumer Protection Act of 1991?

FCC

Define sellers.

entities that provide or arrange to provide the goods and services being offered.

When did the DNC Registry provisions take effect?

2003

What is required where pre-acquired account information is used in connection with other types of transactions?

At a minimum, identify the account with enough specificity for the consumer to understand which account will be charged & obtain the consumer's express consent agreement to be charged using that account number.

What does the Telephone Consumer Protection Act prohibit?

Automatic telephone dialing systems from making calls to any cell phone or other service "for which the called party is charged for the call."

What must telemarketers do under TSR before placing any call to a consumer (absent exceptions)?

Check the DNC; even a call to a consumer whose phone number is not on the registry is a violation of the TSR if the registry was not checked prior to the call.

What are the penalties for violating the DNC?

Civil penalties of up to $16,000 per violation; violators may also be subject to nationwide injunctions that prohibit certain conduct and may be required to pay redress to injured consumers.

To which emails does CAN-SPAM apply?

Commercial e-mail messages whose primary purpose is advertising or promoting a product or service.

What law did Congress pass that created rules for unsolicited commercial e-mail?

Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003.

What is required if a call has multiple purposes (sale of different types of products, etc.)?

Disclosures have to be given for all sales purposes.

What is required for a company to use prerecorded sales messages?

It must have prior express consent (opt-in) of the consumer.

What was the intended purpose for CAN-SPAM?

It was intended to provide a mechanism for legitimate companies to send emails to prospects and respect individual rights to opt out of unwanted communications.

Are EBR numbers possessed prior to the JFPA effective date subject to the restrictions on obtaining them?

No.

Do the TSR or FCC rules preempt state law?

No.

Was CAN-SPAM intended to eliminate unsolicited commercial email?

No.

What does the TCPA do?

Prohibits unsolicited commercial fax transmissions

What requirements does the JFPA impose on how fax numbers may be obtained?

Senders may collect fax numbers from new customers only (1) through the voluntary communication of the fax number from the customer within the context of the business relationship, or (2) from a directory or Internet site where recipients have voluntarily agreed to make fax numbers available for public distribution.

Who enforces the TCPA?

The FCC

Who enforces the DNS Registry?

The FTC, FCC and state attorneys general.

True/false: if online, the "please call me" button may not be pre-checked.

True.

How are distinct corporate divisions treated for one seller?

The TSR treats distinct corporate divisions as separate sellers. Under the FTC, if a consumer tells one division of a company not to call again, a distinct corporate division of the same company may still make calls to that consumer. If the divisions are not distinct, the seller may not call the consumer even to offer different goods or services.

True/false: the JFPA permits faxes to both consumers and businesses if the EBR exists.

True.

What is required where there is dissolution / termination of the business of a seller or telemarketer?

The principal of the business must maintain all records of the business.

What specific disclosures are required when seller / telemarketer accepts payment by means other than a credit card or debit card, such as a phone or utility billing?

The seller must obtain "express verifiable authorization" because many new payment methods lacked basic consumer protection provisions that exist in credit card transactions.

What happens when a business (seller or telemarketer) is sold, assigned, or experiences change in ownership?

The successor business must maintain the records.

True/false: Under TSR/DNC, the seller's request for consent must be clear and conspicuous.

True. If in writing, the request cannot be hidden; printed in small, pale, or non-contrasting type; hidden on the back or bottom of the document; buried in unrelated information where a person would not expect to find the request."

True/false: Sellers and telemarketers are required to maintain internal suppression lists to respect do-not-call requests from consumers.

True. The TSR prohibits any seller or its telemarketer from calling any consumer who has ASKED not to be called again.

True/false: the use of a prerecorded-message telemarketing is a TSR violation.

True. The telemarketer is not connecting the call to a live sales representative within 2 seconds of the called person's completed greeting.

What is perhaps the best known TSR requirement/most popular program ever to be implemented by the FTC?

U.S. National Do Not Call (DNC) Registry.

How do telemarketing regs in the US contrast with the tort privacy claims?

They address milder intrusions which don't require a showing of "highly offensive" intrusions.

True/false: The FTC has aggressively enforced the TSR.

True.

What are penalties for violating the TCPA?

a private right of action, and statutory damages of up to $500 per fax.

What often causes abandoned calls?

a telemarketer's use of predictive dialers to call consumers.

The TSR requires sellers and telems to keep what substantial records related to telemarketing activities for 2 years?

a. Advertising and promotional materials b. information about prize recipients c. sales records d. employee records e. all verifiable authorizations or records of express informed consent/express agreement

What must telemarketers disclose at the beginning of the call, before delivering any sales content, under TSR?

a. identity of the seller b. that the call's purpose is to sell goods/services c. the nature of the goods services d. in the case of a prize promotion, that no purchase or payment is necessary to participate or win, and that a purchase or payment does not increase the chances of winning *these disclosures must be truthful

What is prohibited by the TSR re: outbound calls?

abandoning an outbound call with either hang-ups or dead air.

Who must comply with TSR (or its FCC counterpart) and applicable state laws?

all businesses or individuals who engage in telemarketing.

How does gaining access to the DNC work?

1. Each seller must establish a profile by providing identifying information about the organization. 2. Then, the seller receives a unique Subscription Account Number (SAN) upon payment of the appropriate fee. (Telemarketers accessing the registry for seller-clients are required to identify the seller-clients and provide the seller-client's unique SAN.) (Telemarketers access the registry at no cost through the use of their seller-client's unique SAN, but their access is limited to the area codes requested/paid for by the seller-client.)

How did the FCC revise its rules?

1. FCC revised its established business relationship exemption for robocalls - even if a company has an established business relationship with a consumer, it is required to receive "prior express written consent" for all robocalls to residential lines. (The rules allow a 12-month adoption period.) 2. A provision to allow consumers to opt out of future robocalls during the robocall 3. Assessment of the call abandonment rate occurring during a single calling campaign over a 30-day period. If the calling campaign exceeds 30 days, the the rate should be calculated each 30-day period or portion thereof during which the campaign continues.

What must the consent contain in order to be valid under TSR DNC Rules?

1. Must be in writing, 2. must state the number to which calls may be made and 3. must include the consumer's signature (a valid electronic signature is acceptable)

What are the rules for use of the DNC?

1. Sellers & telemarketers must access the registry prior to making any phone-based solicitation. 2. Sellers & telemarketers must update their call lists every 31 days with new registry information.

What other three areas does the TSR have specific regulations to address?

1. credit card laundering 2. telemarketing sales of credit repair programs, loss recovery services and advance loans 3. "telefunding activities" (for-profit companies that call on behalf of charitable organizations)

Why did the FCC revise its rules governing pre-recorded calls (robocalls) on February 15, 2012?

To reconcile its rules with the TSR.

True/false: Telemarketers are not liable if caller ID information doesn't reach a consumer.

True, provided the telemarketer has arranged with its carrier to transmit this information with every call. The telem must be able to show that they took all available steps to ensure transmission in order to avoid liability. Note: A telem's use of calling equipment that is not capable of transmitting caller ID info is no excuse for failure to transmit the required info.

True / false: EBR has the same defintion in the JFPA as it does in the FTC's DNC rule.

True.

True/False: Robocalls to residential lines made by healthcare-related entities governed by HIPAA are exempt from the FTC and FCC robocalls rules.

True.

True/False: the FTC says compliance is required both of telemarketers and sellers.

True.

True/false: CAN-SPAM has created the "rules of the road" for how legitimate organizations send emails, including clear identification of the sender and simply unsubscribe or opt-out.

True.