FTC Releases Final Rule Regulating Prerecorded, Interstate Telemarketing Calls

The Federal Trade Commission (FTC) on August 20, 2008, issued a Final Rule amending the Telemarketing Sales Rule (“TSR”) regarding prerecorded telemarketing calls. That is, calls that are part of an effort to sell a good or product, such as subscription renewals. The new rule will:

• Prohibit, as of September 1, 2009, telemarketers from delivering prerecorded telemarketing messages to consumers who have not previously agreed in writing to receive such calls. As of September 1, 2009, there will be no exception for prerecorded telemarketing messages – that is, messages that are directly or indirectly trying to sell a good or service – delivered to consumers with whom the seller has an established business relationship. (Telemarketers can still make “live calls” to consumers with whom the seller has an established business relationship.) Telemarketers will be allowed to make prerecorded telemarketing calls pursuant to an “existing business relationship” (EBR) exception until September 1, 2009, as long as the calls comply with the new automated keypress or voice-activated opt-out mechanism.
• Require sellers and telemarketers to provide a keypress or voice-activated opt-out mechanism promptly at the outset of any prerecorded telemarketing message call that could be answered by a consumer as of December 1, 2008.
• Require, as of December 1, 2008, prerecorded telemarketing messages left on answering machines and voicemail services to provide a toll-free number for consumers to call to automatically process Do Not Call requests.
• Modify the “call abandonment” provisions by measuring the rate of abandoned calls on a per campaign, per month basis, instead of the current per day, per campaign basis. The FTC also adopted a new definition of “campaign.”

Prerecorded informational calls, such as calls relating to servicing an existing commercial relationship, are unaffected by this rule. The FTC signaled that businesses may not make sales calls in the guise of purported “informational” calls.

The FTC’s jurisdiction extends only to interstate telemarketing. Nothing in the new TSR amendments affects the telemarketing regulations that govern sales calls featuring live representatives, except insofar as the call abandonment rule change may do so. Nor do the new amendments affect the separate telemarketing rules that are administered by the Federal Communications Commission, with which newspapers also must comply.

First Published:
August 25, 2008