The TSR prohibits sellers and telemarketers from engaging in certain abusive practices that infringe on a consumer’s right to be let alone. The TSR’s privacy protections include prohibitions on:
- calling a person whose number is on the National Do Not Call Registry or a person who has asked not to get telemarketing calls from a particular company or charity.
- misusing a Do Not Call list.
- denying or interfering with a person’s Do Not Call rights.
- calling outside the permissible hours.
- abandoning an outbound telephone call.
- placing an outbound telephone call delivering a prerecorded message to a person without that person’s express written agreement to receive such calls, and without providing an automated interactive opt-out mechanism.
- failing to transmit Caller ID information.
- using threats, intimidation, or profane or obscene language.
- causing any telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass.
The Do Not Call Provisions
The original TSR contained a provision prohibiting calls to any consumer who previously asked not to get calls from or on behalf of a particular seller. Amendments to the TSR retain that provision, and also prohibit calls to any numbers consumers have placed on the National Do Not Call Registry maintained by the FTC.
The Entity-Specific Do Not Call Provision
It is a TSR violation to call any consumer who has asked not to be called again (the “entity-specific Do Not Call” provision). A telemarketer may not call a consumer who previously has asked not to receive any more calls from or on behalf of a particular seller or charitable organization. It also is a TSR violation for a seller that has been asked by a consumer not to call again to cause a telemarketer to call that consumer. Sellers and telemarketers are responsible for maintaining their individual Do Not Call lists of consumers who have asked not to receive calls placed by, or on behalf of, a particular seller. Calling a consumer who has asked not to be called potentially exposes a seller and telemarketer to a civil penalty of $43,280 for each violation.
What if a consumer asks a specific division of a corporation not to call? Does a call from a different division violate the TSR? Distinct corporate divisions generally are considered separate sellers under the TSR. Factors relevant to determining whether distinct divisions of a single corporation are treated as separate sellers include 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. If a consumer tells one division of a company not to call again, a distinct corporate division of the same company may make another telemarketing call to that consumer. Nevertheless, a single seller without distinct corporate divisions may not call a consumer who asks not to be called again, even if the seller is offering a different good or service for sale.
On the question of charitable solicitations, telefunders must maintain individual Do Not Call lists for charities on whose behalf they make telemarketing calls. Calling someone who has asked not to be called on behalf of a charitable organization potentially exposes the telefunder that places the call to a civil penalty of $43,280 for each violation.
Example:
Charity A is a non-profit charitable organization not covered by the TSR. Charity A engages Telefunder 1, a for-profit service bureau subject to the TSR, to conduct fundraising telephone campaigns on its behalf. Charity A uses Telefunder 1 to conduct a fundraising campaign for six months, then uses Telefunder 2, another for-profit service bureau, for the next six months. It will violate the TSR for Telefunder 2 to initiate an outbound telephone call on behalf of Charity A to a person who has already asked not to be called on behalf of Charity A. It is the responsibility of Telefunder 2 to get the Do Not Call list relating to Charity A compiled and maintained by Telefunder 1, and to keep from placing calls to anyone on that list when calling on behalf of Charity A.
If Telefunder 2 also conducts a fundraising campaign for Charity B, Telefunder 2 may call potential donors on behalf of Charity B even if they’re on Charity A’s Do Not Call list. But when calling on behalf of Charity B, Telefunder 2 may not call potential donors on Charity B’s Do Not Call list.
The National Do Not Call Registry Requirements
The FTC’s National Do Not Call Registry has been accepting registrations from consumers who choose not to receiving telemarketing sales calls since June 27, 2003. Consumers can place their telephone numbers on the National Registry online or by calling a toll-free number. Only phone numbers are included in the National Registry. This means that all household members who share a number will stop receiving most telemarketing calls after the number is registered. Consumers may register both their residential “land line” telephone numbers and their wireless phone numbers.
Sellers, telemarketers, and their service providers have been able to access the Registry through a dedicated website since September 2003. It is a TSR violation to make any covered calls without having accessed the Registry. Sellers and telemarketers must update their call lists — that is, delete all numbers in the National Do Not Call Registry from their lists — at least every 31 days.
Sellers and telemarketers are prohibited from calling any consumer whose number is in the database. Violators will be subject to civil penalties of up to $41,484 for each violation, as well as injunctive remedies.
What types of calls are not covered by the National Do Not Call Registry? The Do Not Call provisions do not cover calls from political organizations, charities, telephone surveyors, or companies with which a consumer has an existing business relationship. Some sellers are exempt from the FTC’s Rules but are required to access the National Registry under the FCC’s Rules. Other sellers (charities and political organizations) are exempt from accessing the National Registry under both agencies’ rules. These exempt sellers still may access the National Registry voluntarily and do not have to pay a fee for that access. They must, however, submit appropriate certification information to gain access to the National Registry. See fcc.gov.
The prohibition on calls to numbers on the Registry does not apply to business-to-business calls or calls to consumers from or on behalf of charities. Still, telefunders calling to solicit charitable contributions must honor a donor’s request not to be called on behalf of a particular charitable organization.
If a call includes a telephone survey and a sales pitch, is it covered? Yes. Callers purporting to take a survey, but also offering to sell goods or services, must comply with the Do Not Call provisions. But if the call is for the sole purpose of conducting a survey, it is exempt. However, sellers and telemarketers should also be aware that the FCC regulates telemarketing calls. See fcc.gov.
How the National Do Not Call Registry Works
Accessing the Registry
Who can access the National Registry? Access to the National Registry is limited to sellers, telemarketers, and other service providers. Sellers are companies that provide, offer to provide, or arrange for others to provide goods or services to a customer in return for some type of payment as part of a telemarketing transaction. Telemarketers are companies that make telephone calls to consumers on behalf of sellers. Service providers are companies that offer services to sellers engaged in telemarketing transactions, such as providing lists of telephone numbers to call, or removing telephone numbers from the sellers’ lists.
Can I use numbers on the National Registry for any purpose other than preventing telemarketing calls? No. The National Registry may not be used for any purpose other than preventing telemarketing calls to the telephone numbers on the Registry. Any entity that accesses the National Registry will be required to certify, under penalty of law, that it is accessing the Registry solely to comply with the TSR or to prevent calls to numbers on the Registry.
How can I access the National Registry? The FTC has a fully automated and secure website — telemarketing.donotcall.gov — to provide members of the telemarketing industry with access to the National Registry’s database of telephone numbers, sorted by area code. The first time you access the National Registry, you must provide identifying information about yourself and your company. If you are a telemarketer or service provider accessing the National Registry on behalf of your seller-clients, you will be required to identify your seller-clients and provide their unique account numbers. The only consumer information available from the National Registry is telephone numbers. After you (or the company telemarketing on your behalf) have accessed the National Registry the first time, you’ll have the option of downloading only changes in the data that have occurred since the last time you accessed the Registry.
What information must I provide to access the National Registry? The first time you access the system, you will be asked to provide certain limited identifying information, such as your company name and address, contact person, and the contact person’s telephone number and email address. If you are accessing the National Registry on behalf of a seller-client, you also will have to identify that seller-client.
How often will I have to access the National Registry and remove numbers from my calling list? You must synchronize your lists with an updated version of the National Registry every 31 days.
How often may I download data from the National Registry? You will be able to access data as often as you like during the course of your annual period for those area codes for which you have paid. However, to protect system integrity, you may download data files from the National Registry only once in any 24-hour period.
What information can I access from the National Registry? The only consumer information that companies receive from the National Registry is registrants’ telephone numbers. The numbers are sorted and available by area code. Companies may access as many area codes as desired (and paid for), by selecting, for example, all area codes within a certain state. Of course, companies may access the entire National Registry.
May I check just a few numbers at a time to see if they are registered? Companies that have provided the required identification information and certification and paid the appropriate fee (if they want to access more than five area codes) may check a small number of telephone numbers (10 or less) at a time via interactive Internet pages. This permits small volume callers to comply with the Do Not Call requirements of the TSR without having to download a potentially large list of all registered telephone numbers within a particular area.
What format does the National Registry use? Data is available from the National Registry using Internet-based formats and download methods that serve both small and large businesses. Data also is available in three different sets: full lists, change lists, and small list look-ups. Full lists and change lists are available as flat files or XML tagged data files.
With a web browser, you can access a secure webpage that allows you to select the download set that you prefer. For the small list look-up, you will be asked to enter from one to 10 telephone numbers on an online form. After entering the numbers and clicking on a button, the National Registry will display the list of numbers you entered and whether each number is in the Registry.
You are limited to the numbers in the area code(s) to which you have subscribed. The full list contains just 10-digit telephone numbers, with a single number on each line. For the change list in flat file format, each line of the file contains a telephone number, the download date, and an “A” (for Added) or “D” (for Deleted). The change list data is fixed-width fields.
For both flat files and XML tagged data, if you select a change list, you will be provided all telephone numbers that have been added to, or deleted from, the National Registry since the date of your previous access. Change lists, for both flat files and XML tagged data, are available to provide changes on a daily basis (representing the additions and deletions from the day before).
To assist in automating the download process, the National Registry offers the option to set up Web services for requesting change lists in XML tagged data format.
Paying for Access
How much does it cost to access the Registry? Under the Do-Not-Call Registry Fee Extension Act of 2007, the annual fees for accessing the Registry are increased at the rate of change of the consumer price index, unless the change is less than 1 percent, in which case the fees will not be adjusted. For fiscal year 2020, beginning October 1, 2020, the annual fee is $66 for each area code of data accessed or $18,044 for access to every area code in the registry, whichever is less. The first 5 area codes of data may be accessed at no charge. Certain exempt organizations may access all data at no charge.
How often will I have to pay a fee? The fee must be paid annually. Payment of the fee provides access to the data for an “Annual Subscription Period” which is defined as the twelve months following the first day of the month in which the seller paid the fee. For example, a seller who pays its annual fee on September 15, 2015, has an “annual period” that runs from September 1, 2015 through August 31, 2016.
If a Seller adds area codes at any point during their Annual Subscription PeriodPeriod, they may be required to make additional payments.
Who must pay the fee? All sellers covered by the TSR must pay the appropriate fee for an area code of data before they call, or cause a telemarketer to call, any consumer within that area code, even those consumers whose telephone numbers are not on the National Registry. The only exceptions are for sellers that call only consumers with which they have an existing business relationship or written agreement to call, and do not access the National Registry for any other purpose. Charities and political organizations that voluntarily want to suppress calls to consumers whose numbers are on the Registry may access the Registry at no cost.
Telemarketers and service providers may access the National Registry, at no cost, through the use of their seller-client’s unique Subscription Account Number (SAN). 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. But before placing calls on behalf of a seller-client, telemarketers are required to ensure that their seller-client has paid the appropriate annual fee.
How can I pay the fee? Fees are payable via credit card (which permits the transfer of data in the same session, if the payment is approved) or electronic fund transfer (EFT). EFT requires you to wait approximately three days for the funds to clear before data access can be provided. You must pay the fee prior to gaining access to the National Registry. Sellers and exempt entities can pay the fee directly or through their telemarketers or service providers (to which the seller or exempt entity has provided the necessary authority).
What if I pay for a small number of area codes, and then later in the year expand my business to call more area codes? Will I have to pay twice? If you need to access data from more area codes than you initially selected, you may do so, but you will have to pay for access to those additional area codes. For fiscal year 2020, beginning October 1, 2020, obtaining additional data from the National Registry during the first six months of your Annual Subscription Period will require a payment of $66 for each new area code. During the second six-month period, the charge to obtain data from each new area code is $33. Payment for additional data provides you with access to the additional data for the remainder of your Annual Subscription Period. Adding area codes to a subscription does not affect the length of the Annual Subscription Period.
What happens after I pay for access? After payment is processed, you will be given a unique Subscription Account Number (SAN) and permitted access to the appropriate portions of the National Registry. On subsequent visits to the website, you will be able to download either a full updated list of numbers from your selected area codes or a more limited list, consisting of changes to the National Registry (both additions and deletions) that have occurred since the day of your last download. This limits the amount of data that you need to download during each visit. The change list will consist of each phone number that has changed, whether it was added or deleted, and the download date.
What if I want to share the cost of the fee with another seller? The TSR flatly prohibits sharing the fee for Registry access. If sharing were permitted, fees would have to be much higher to cover the cost of maintaining the Registry.
If I’m a telemarketer or service provider working for a seller, can I use the seller’s account number to access the National Registry? A telemarketer or other service provider working on behalf of a seller may access the National Registry directly or through the use of its seller-client’s unique account number. If access is gained through its seller-client’s account number, the telemarketer or service provider will not have to pay a separate fee for that access. The extent of its access will be limited to the area codes requested and paid for by its seller-client. The telemarketer or service provider also will be permitted to access the National Registry at no additional cost, once the annual fee has been paid by its seller-client. Of course, sellers or telemarketers must use a version of the National Registry that’s no more than 31 days old before they make any telemarketing calls.
If a telemarketer or service provider is accessing the National Registry directly — that is, if a telemarketer or service provider decides to obtain the information on its own behalf — it will have to pay a separate fee and comply with all requirements placed on sellers accessing the Registry. Such a telemarketer or service provider will be provided a subscription account number (SAN) that can be used only by that company. In other words, that SAN is not transferrable.
What if a seller uses one telemarketer at the beginning of the year and switches to another later in the year? Will the seller have to pay twice? No. Each seller will have a unique subscription account number (SAN) that it can share with the telemarketers and service providers who may access the National Registry on the seller’s behalf.
Compliance
What happens to companies that don’t pay for access to the National Registry? A company that is a seller or telemarketer could be liable for placing any telemarketing calls (even to numbers NOT on the National Registry) unless the seller has paid the required fee for access to the Registry. Violators may be subject to fines of up to $43,280 per violation. Each call may be considered a separate violation. However, sellers and telemarketers should also be aware that the FCC regulates telemarketing calls. See fcc.gov.
What if I call a number that’s not on the National Registry without checking the Registry first? It’s against the law to call (or cause a telemarketer to call) any number on the National Registry (unless the seller has an established business relationship with the consumer whose number is being called, or the consumer agreed in writing to receive calls placed by or on behalf of the seller). But it’s also against the law for a seller to call (or cause a telemarketer to call) any person whose number is within a given area code unless the seller first has paid the annual fee for access to the portion of the National Registry that includes numbers within that area code.
In addition, it’s against the law for a telemarketer, calling on behalf of a seller, to call any person whose number is within a given area code unless the seller has first paid the annual fee for access to the portion of the National Registry that includes numbers within that area code. Telemarketers must make sure that their seller-clients have paid for access to the National Registry before placing any telemarketing calls on their behalf. However, sellers and telemarketers should also be aware that the FCC regulates telemarketing calls. See fcc.gov.
What’s my liability if my company inadvertently calls a number on the National Registry? The TSR has a “safe harbor” for inadvertent mistakes. If a seller or telemarketer can show that, as part of its routine business practice, it meets all the requirements of the safe harbor, it will not be subject to civil penalties or sanctions for mistakenly calling a consumer who has asked for no more calls, or for calling a person on the National Registry. However, sellers and telemarketers should also be aware that the FCC regulates telemarketing calls. See fcc.gov.
How do the registries operated by the FTC, the, FCC, and the various states fit together? Since June of 2003, the FTC and the FCC jointly and cooperatively have enforced a single National Do Not Call Registry. Together, the FTC and the FCC have jurisdiction over nearly all sales calls placed to U.S. consumers.
Some thirteen states still administer their own do not call registries. The TSR does NOT preempt state law, so sellers, telemarketers, and others who do telemarketing will have to check with various states to determine what is required for compliance at the state level. See fcc.gov. A full copy of the FCC’s regulations can be found at: https://www.law.cornell.edu/cfr/text/47/64.1200.
Troubleshooting
What if I have problems when I try to access the National Registry? Visit telemarketing.donotcall.gov for help during regular business hours via a secure electronic form or send an email to the registry Help Desk at tmhelp@donotcall.gov.
How does the National Registry impact small, home-based direct sellers?
FTC staff does not contemplate enforcing the National Do Not Call Registry provisions against individuals who make sales calls out of their own homes to personal friends, family members, or small numbers of personal referrals. In fact, most of the calls made by such small direct sellers probably would be local or “intrastate” calls, and therefore not covered by the TSR. The TSR applies to telemarketing campaigns that involve more than one interstate call.
Nevertheless, small home-based direct sellers should be aware that the Do Not Call regulations of the FCC cover intrastate calls. The FCC regulations exempt “personal relationship” calls — where the party called is a family member, friend, or acquaintance of the telemarketer making the call.
As a matter of goodwill, small direct sellers may want to avoid contacting a person whose number is on the Registry.
Where can I get more information about compliance? The best source of information about complying with the Do Not Call provisions of the TSR is ftc.gov/donotcall. It includes business information about the National Registry.
It’s important that sellers and others involved in telemarketing recognize that both the FTC and the FCC regulate telemarketing practices. Those involved in telemarketing should review regulations put in place by both agencies. The FCC’s regulations can be found at: https://www.law.cornell.edu/cfr/text/47/64.1200.
Do Not Call Safe Harbor
If a seller or telemarketer can establish that as part of its routine business practice, it meets the following requirements, it will not be subject to civil penalties or sanctions for erroneously calling a consumer who has asked not to be called, or for calling a number on the National Registry:
- the seller or telemarketer has established and implemented written procedures to honor consumers’ requests that they not be called.
- the seller or telemarketer has trained its personnel, and any entity assisting in its compliance, in these procedures.
- 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.
- 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.
- 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.
- the call is a result of error.
What happens if a consumer is called after he or she has asked not to be called? If a seller or telemarketer calls a consumer who has:
- placed his number on the National Registry
- not given written and signed permission to call
- either no established business relationship with the seller, or has asked to get no more calls from or on behalf of that seller . . .
the seller and telemarketer may be liable for a TSR violation. If an investigation reveals that neither the seller nor the telemarketer had written Do Not Call procedures in place, both will be liable for the TSR violation. If the seller had written Do Not Call procedures, but the telemarketer ignored them, the telemarketer will be liable for the TSR violation; the seller also might be liable, unless it could demonstrate that it monitored and enforced Do Not Call compliance and otherwise implemented its written procedures. Ultimately, a seller is responsible for keeping a current entity-specific Do Not Call list, either through a telemarketing service it hires or its own efforts.
What does “error” mean? If a seller or telemarketer has and implements written Do Not Call procedures, it will not be liable for a TSR violation if a subsequent call is the result of error. But it may be subject to an enforcement investigation, which would focus on the effectiveness of the procedures in place, how they are implemented, and if all personnel are trained in Do Not Call procedures. If there is a high incidence of “errors,” it may be determined that the procedures are inadequate to comply with the TSR’s Do Not Call requirements, the safe harbor is not fulfilled, and the calls violate the TSR. On the other hand, if there is a low incidence of “errors,” there may not be a TSR violation. The determination of whether an excusable “error” occurs is based on the facts of each case. A safe rule of thumb to ensure that adequate Do Not Call procedures are implemented is to test periodically for quality control and effectiveness.
Exemptions to the National Do Not Call Registry Requirements
The Established Business Relationship Exemption
Sellers and telemarketers may place live telemarketing calls from a sales agent (but not automated calls or robocalls) to a consumer with whom a seller can demonstrate it has an established business relationship, provided the consumer has not asked to be on the seller’s entity-specific Do Not Call list. The TSR states that there are two kinds of established business relationships. One is based on the consumer’s purchase, rental, or lease of the seller’s goods or services, or a financial transaction between the consumer and seller, within 18 months preceding a telemarketing call. The 18-month period runs from the date of the last payment, transaction, or shipment between the consumer and the seller. The other is based on a consumer’s inquiry or application regarding a seller’s goods or services, and exists for three months starting from the date the consumer makes the inquiry or application. This enables sellers to return calls to interested prospects even if their telephone numbers are on the National Registry.
Examples:
A magazine seller may make a live telemarketing call to a customer whose number is on the National Registry for 18 months after the date of the customer’s last payment for magazines or for 18 months after the seller’s last shipment date of magazines, whichever is later.
A consumer calls a company to ask for more information about a particular product. If the company returns the consumer’s call within three months from the date of the inquiry, whether the consumer’s telephone number is on the National Registry is immaterial. But after that three month period, the company would need either the consumer’s express agreement to get more calls or a transaction-based established business relationship to support more calls.
To whom does the established business relationship apply? An established business relationship is between a seller and a customer; it is not necessarily between one of the seller’s subsidiaries or affiliates and that customer. The test for whether a subsidiary or affiliate can claim an established business relationship with a sister company’s customer is: would the customer expect to receive a call from such an entity, or would the customer feel such a call is inconsistent with having placed his or her number on the National Do Not Call Registry?
Factors to be considered in this analysis include the nature and type of goods or services offered and the identity of the affiliate. Are the affiliate’s goods or services similar to the seller’s? Is the affiliate’s name identical or similar to the seller’s? The greater the similarity between the nature and type of goods sold by the seller and any subsidiary or affiliate and the greater the similarity in identity between the seller and any subsidiary and affiliate, the more likely it is that the call would fall within the established business relationship exemption.
Examples:
A consumer who purchased aluminum siding from “Alpha Company Siding,” a subsidiary of “Alpha Corp.,” likely would not be surprised to receive a call from “Alpha Company Kitchen Remodeling,” also a subsidiary of “Alpha Corp.” The name of the seller and the subsidiary are similar, as are the type of goods or services offered — home repair and remodeling.
If a consumer buys a computer with peripherals — printer, keyboard, speakers — from a local retail store, the consumer will have an established business relationship with that store for 18 months from the date of purchase. In addition, the consumer may have an established business relationship with the computer manufacturer and possibly the manufacturer of the peripherals, as well as the operating system manufacturer, as long as the customer has a contractual relationship with any of these entities. If the printer comes with a manufacturer’s written warranty, the manufacturer of the printer has an established business relationship with the customer. If the operating system comes with a manufacturer’s written warranty, the manufacturer of the system has an established business relationship with the customer, too.
However, if a consumer buys a subscription to a magazine from a magazine publisher that happens to be owned by a corporation with diverse holdings, the customer’s established business relationship would exist only with the magazine publisher, not the corporate parent or any other corporate subsidiaries.
The Written Permission to Call Exemption
The TSR lets sellers and telemarketers call any consumer they can demonstrate has expressly agreed, in writing, to receive calls by or on behalf of the seller, even if the consumer’s number is in the National Do Not Call Registry. The consumer’s express agreement must be in writing and must include the number to which calls may be made and the consumer’s signature. The signature may be a valid electronic signature, if the agreement is reached online.
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.
In the FTC’s enforcement experience, 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.
Other Provisions Relating to Do Not Call
Selling or Using a Do Not Call List for Purposes Other than Compliance
It’s a violation of the TSR for anyone to sell, rent, lease, buy, or use an entity-specific Do Not Call list or the National Registry for any purpose other than complying with the Rule’s Do Not Call provisions or preventing calls to numbers on such lists. This provision applies to list brokers, third-party services, and others, in addition to sellers and telemarketers. It is intended to ensure that consumers’ phone numbers on Do Not Call lists and the National Registry are not misused. It is a violation of this provision for a seller to market its own entity-specific Do Not Call list to another entity for use as a “do call” list.
Sellers and telemarketers (on behalf of sellers) must purchase access to the relevant Do Not Call data from the National Registry database. The TSR prohibits participating in any arrangement to share the cost of accessing the National Registry database. A telemarketer may not divide the costs to access the National Registry database among various client sellers; access for each client seller must be purchased separately. Similarly, a telemarketer may not access the National Registry to obtain Do Not Call data and transfer the data to or share it with another telemarketer.
Denying or Interfering with Someone’s Do Not Call Rights
It’s a TSR violation to deny or interfere with someone’s right to be placed on the National Do Not Call Registry or on any entity-specific Do Not Call list. This provision prohibits a telemarketer from refusing to accept a consumer’s entity-specific Do Not Call request, including harassing any person who makes such a request, hanging up on that person, failing to honor the request, requiring the person to listen to a sales pitch before accepting the request, assessing a charge or fee for honoring the request, requiring the person to call a different number to submit the request, or requiring the person to identify the seller making the call or on whose behalf the call is made. In addition, if a seller or telemarketer fails to diligently capture information about a consumer’s Do Not Call request and add it to the appropriate entity-specific Do Not Call list, it will lose the benefit of the TSR’s safe harbor for inadvertent violations. It would also violate this part of the TSR for any person to purport to accept telephone numbers or other information for entry into the National Do Not Call Registry. No data from third parties is accepted into the National Do Not Call Registry.
Calling Time Restrictions
Unless a telemarketer has a person’s prior consent to do otherwise, it’s a violation of the TSR to make outbound telemarketing calls to the person’s home outside the hours of 8 a.m. and 9 p.m. local time at the location called.
Call Abandonment (and Safe Harbor)
The TSR expressly prohibits telemarketers from abandoning any outbound telephone call, but has an alternative that allows some flexibility while enabling you to avoid liability under this provision.
Abandoned calls often result from telemarketers’ use of predictive dialers to call consumers. Predictive dialers promote telemarketers’ efficiency by simultaneously calling multiple consumers for every available sales representative. This maximizes the amount of time telemarketing sales representatives spend talking to consumers and minimizes representatives’ “downtime.” But it also means some calls are abandoned: consumers are either hung up on or kept waiting for long periods until a representative is available.
Under the TSR’s definition, an outbound telephone call is “abandoned” if a person answers it and the telemarketer does not connect the call to a sales representative within two seconds of the person’s completed greeting. The use of prerecorded message telemarketing, where a sales pitch begins with or is made entirely by a prerecorded message, violates the TSR because the telemarketer is not connecting the call to a sales representative within two seconds of the person’s completed greeting.
The abandoned call safe harbor provides that a telemarketer will not face enforcement action for violating the call abandonment prohibition if the telemarketer:
- uses technology that ensures abandonment of no more than three percent of all calls answered by a live person, measured over the duration of a single calling campaign, if less than 30 days, or separately over each successive 30-day period or portion thereof that the campaign continues.
- allows the telephone to ring for 15 seconds or four rings before disconnecting an unanswered call.
- plays a recorded message stating the name and telephone number of the seller on whose behalf the call was placed whenever a live sales representative is unavailable within two seconds of a live person answering the call.
- maintains records documenting adherence to the three requirements above.
To take advantage of the safe harbor, a telemarketer must first ensure that a live representative takes the call in at least 97 percent of the calls answered by consumers. Calls answered by machine, calls that are not answered at all, and calls to non-working numbers do not count in this calculation. (Note that calls that are answered by machine and that deliver prerecorded messages raise other concerns. See “Telemarketing Calls That Deliver Prerecorded Messages.”)
The “per calling campaign” measure
A telemarketer running simultaneous campaigns (on behalf of the same or different sellers) cannot average the abandonment rates for all campaigns, offsetting for example, a six percent abandonment rate for one campaign with a zero percent abandonment rate for another. Each separate campaign is subject to a maximum abandonment rate of three percent measured over the duration of a single calling campaign, if less than 30 days, or separately over each successive 30-day period or portion thereof that the campaign continues.
A telemarketer also must eliminate “early hang-ups” by allowing an unanswered call to ring either four times or for 15 seconds before disconnecting the call. This element of the safe harbor ensures that consumers have a reasonable time to answer a call and are not subjected to “dead air” after one, two, or three rings.
In addition, in the small permissible percentage of calls in which a live representative may not be available within two seconds of the consumer’s completed greeting, the telemarketer must play a recorded message. The message must state the name and telephone number of the seller responsible for the call, enabling the consumer to know who was calling and, should the consumer wish, to return the call. The Rule expressly states that sellers and telemarketers still must comply with relevant state and federal laws, including, but not limited to, the Telephone Consumer Protection Act (47 U.S.C. § 227) and FCC regulations at 47 C.F.R. Part 64.1200. The FCC regulations prohibit such recorded messages from containing a sales pitch, but, like the TSR provision discussed here, require that the message state “only the name and telephone number of the business, entity, or individual on whose behalf the call was placed and that the call was for ‘telemarketing purposes.’” The recorded message must not contain a sales pitch. The number on the recorded message must be one to which a consumer can call to place an entity specific Do Not Call request.
Finally, a telemarketer wishing to avail itself of the safe harbor for abandoned calls must keep records that document its compliance with the first three safe harbor components in accordance with the recordkeeping provision of the TSR (Section 310.5). The records must establish that the abandonment rate has not exceeded three percent and that the ring time and recorded message requirements have been fulfilled.
Telemarketing Calls That Deliver Prerecorded Messages
In August of 2008, the FTC adopted amendments to the TSR that directly address the use of prerecorded messages in telemarketing. Under those amendments, the TSR expressly prohibits outbound telemarketing calls that deliver a prerecorded message unless the seller has obtained the call recipient’s prior signed, written agreement to receive such calls from that seller. The prohibition applies to prerecorded message calls regardless of whether they are answered by a person or by an answering machine or voice mail service. With certain exceptions (explained below), the prohibition applies to all calls that deliver a prerecorded message, regardless of whether the number called is listed on the National Do Not Call Registry. THE PROHIBITION APPLIES TO CALLS THAT DELIVER ANY PRERECORDED MESSAGE, REGARDLESS OF WHETHER THE PRERECORDED MESSAGE IS PLAYED OR SELECTED BY A LIVE OPERATOR.
Moreover, even when the seller has the call recipient’s prior agreement to receive prerecorded message calls, the message must provide an automated interactive opt-out mechanism that is announced and made available at the outset of the message (right after the required prompt disclosures described above). The opt-out mechanism must remain available throughout the duration of the call. If a call delivering a prerecorded message possibly might be answered “live” by a consumer, the message must include a voice-activated or telephone keypress automated mechanism that will automatically add the number called to the seller’s entity-specific Do Not Call list and then immediately terminate the call. If a call possibly might be picked up by an answering machine, or voicemail service, then the message must include a toll-free number that, when called, will connect a caller to the same automated opt-out mechanism, which must be available “24/7” for the duration of the calling campaign.
In addition, sellers or telemarketers placing calls that deliver a prerecorded message must also comply with three additional requirements that mirror those of the abandoned call prohibition. Specifically, they must:
- allow the telephone to ring for at least fifteen (15) seconds or four (4) rings before disconnecting an unanswered call;
- play the prerecorded message within two seconds after the recipient of the call completes his or her greeting; and
- comply with all other requirements of the TSR and other applicable federal and state laws.
The Written Agreement Requirement
Calls delivering a prerecorded message may be placed only to individuals who have provided the seller with a signed, written agreement to receive such calls. Therefore, prerecorded message calls are prohibited if the seller does not possess a written agreement from the individual to whom such a call is placed to receive such calls. The existence of an “established business relationship” does not does not permit a seller or telemarketer to place a prerecorded message call.
The TSR requires that the seller have a written agreement with the called party for all calls delivering prerecorded messages, with the two exceptions discussed below. The written agreement is required regardless of whether the number called is on the National Do Not Call Registry. Nor does it matter whether a call delivering a prerecorded message is answered “live” by a person or by an answering machine or voicemail service. In all cases, the seller must have the call recipient’s prior written agreement to receive prerecorded message calls at the number called.
What must the written agreement contain?
A written agreement need only contain:
- unambiguous evidence that a call recipient is willing to receive telephone calls that deliver a prerecorded message by or on behalf of a specific seller;
- the telephone number to which such messages may be delivered; and
- the call recipient’s signature.
Although no particular form or language is required, an acceptable model is provided here.
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I would like to receive telephone calls that deliver prerecorded messages |
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Yes |
No |
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________[Signature]________ |
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Does a consumer’s written agreement to receive prerecorded message calls from a seller permit others, such as the seller’s affiliates or marketing partners, to place such calls? No. The TSR requires that the written agreement identify the single “specific seller” authorized to deliver prerecorded messages. The authorization does not extend to other sellers, such as affiliates, marketing partners, or others.
Are there specific procedures for obtaining a consumer’s written agreement to receive calls that deliver prerecorded messages? There are three essentials:
- Before the consumer agrees, the seller must clearly and conspicuously disclose the consequences of agreeing — namely, that the agreement will result in the seller delivering prerecorded messages to the consumer via telemarketing calls;
- The seller may not require, directly or indirectly, that a consumer agree to receive prerecorded message calls as a precondition for purchasing or receiving any good or service; and
- The seller must give the consumer an opportunity to designate the telephone number to which the calls may be placed.
Sellers bear the burden of demonstrating that these prerequisites have been met, and that they possess the required written agreements from consumers to receive prerecorded calls for all such calls that they place.
Is there a particular medium or format the seller must use in obtaining a consumer’s written agreement to receive calls that deliver prerecorded messages? A seller need not obtain or retain the consumers agreement in paper form. The TSR expressly permits sellers to use electronic records that comply with the Electronic Signatures In Global and National Commerce Act (“E-SIGN”). Therefore, a seller may use a written agreement that is both created and retained in electronic form, so long as the seller can demonstrate that the seller’s procedures comply with E-SIGN, and conform to the TSR’s written agreement requirements. Thus, consumers’ express agreements to receive prerecorded message calls could be obtained by means of email, a website form, a telephone keypress during a live call with a sales agent, or a voice recording.
The Requirement that Prerecorded Telemarketing Messages Include an Automated Interactive Opt-Out Mechanism
Calls that deliver a prerecorded message must include an automated interactive opt-out mechanism that is announced and made available for the call recipient to use at the outset of the message. The opt-out must follow immediately after the initial disclosures — explained in the section on Prompt Disclosures in Outbound Telemarketing Calls — that the TSR imposes on all telemarketing calls.
- In the case of a prerecorded message to induce the purchase of a good or service, the opt-out mechanism must be announced and made available to use immediately after the mandatory disclosures — the seller’s identity, that the purpose of the call is to sell goods or services, the nature of the goods or services, and, if a prize promotion is offered, the fact that no purchase or payment is necessary to participate.
- In the case of a prerecorded message call placed by a telefunder to solicit charitable contributions on behalf of a non-profit organization, the opt-out mechanism must be announced and made available to use immediately after the mandatory disclosure of the identity of the charitable organization on behalf of which the call is made, and the fact that the purpose of the call is to solicit a charitable contribution.
Sellers and telemarketers using prerecorded telemarketing calls must employ automated technology capable of automatically placing a consumer’s telephone number on the seller’s Do Not Call list in response either to spoken words, or the pressing of a specified key on the telephone keypad.
If it is possible that a prerecorded telemarketing call may be answered by a consumer in person, the message must disclose at the outset (as discussed above) how to use the required voice-or-keypress-activated interactive opt-out mechanism to add the consumer’s number to the seller’s entity-specific Do Not Call list. Moreover, the opt-out mechanism must:
- be available for call recipients to use at any time during the message;
- when invoked, automatically add the call recipient’s number to the seller’s entity-specific Do Not Call list; and
- after the call recipient’s number has been added to the seller’s internal Do Not Call list, immediately disconnect the call.
By contrast, if it’s possible that a prerecorded telemarketing call may be picked up by an answering machine or voice mail service, the message must disclose at the outset a toll-free number that, when called, connects the caller directly to the same type of voice-or-keypress-activated interactive opt-out mechanism that will add the number called to the seller’s Do Not Call list. The opt-out mechanism provided must:
- be accessible at any time throughout the telemarketing campaign, including non-business hours;
- automatically add the call recipient’s number to the seller’s entity-specific Do Not Call list; and
- immediately thereafter disconnect the call.
When would both a voice or keypress activated mechanism and a toll-free number be required? Both would be required whenever a seller or telemarketer cannot be certain that no consumer will answer the call in person.
May the opt-out mechanism transfer an opt-out request to an operator or sales representative? No, the opt-out provision specifies that the mechanism must “automatically add the number called to the seller's entity-specific Do Not Call list.” This means the mechanism must work in a way that does not require human intervention. The additional requirement that the opt-out mechanism “once invoked, immediately disconnect the call” after adding the call recipient’s telephone number to the seller’s Do Not Call list bars the intervention of an operator or sales representative.
May the opt-out mechanism require a repeat confirmation of the opt-out request before adding a number to the seller’s Do Not Call list? No, the provision specifies that the opt-out mechanism must “automatically add” the number called to the seller’s entity-specific Do Not Call list.”
May the opt-out mechanism connect to a menu that includes the required opt-out option? No, the opt-out mechanism, once invoked, must “automatically add” the number called to the seller’s entity-specific Do Not Call list, then immediately terminate the call.
If a recipient of a call delivering a prerecorded message calls the toll-free number provided in the message, must the call recipient’s number automatically be added to the seller’s internal Do Not Call list? Yes. All calls to the toll free number must “connect directly” to an opt-out mechanism that “automatically adds” the number originally called to the seller’s entity-specific Do Not Call list. The provision assumes that the recipient of the prerecorded message call will call back the number provided on the same line on which she received the prerecorded call. As a practical matter, ANI (automatic number identification) may be used to capture the telephone number that calls into the toll-free number. This is the “number called” to which the prerecorded message was delivered.
Must the toll-free number provided in a prerecorded telemarketing message, regardless of when it receives a return call from a consumer, connect the return call to an automated opt-out mechanism? Yes. The TSR specifies that the opt-out mechanism must be “accessible at any time throughout the duration of the telemarketing campaign.” This means that both the toll-free number and the opt-out mechanism itself be operational “24/7" so that regardless of the day or time that a consumer listens to a prerecorded message on his or her answering machine or voice mail service, the consumer, if he or she wishes, can immediately exercise the right to opt-out of future calls.
If a prerecorded telemarketing campaign lasts only a short time (for example, one or two days), how long must the toll-free number provided in the prerecorded message be accessible?The toll-free number must be available for the “duration of the telemarketing campaign.” In the case of a short one or two-day campaign, the toll-free number should be available for a reasonable time thereafter to permit consumers to exercise their opt-out rights after listening to the message.
Calls that Deliver Purely “Informational” Prerecorded Messages
The TSR amendments prohibiting prerecorded messages in telemarketing do not apply to calls delivering prerecorded messages that are purely informational — for example, flight cancellation messages. Purely informational calls — as opposed to calls soliciting sales or charitable contributions — do not fall within the Rule’s definition of “telemarketing” — “a plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution.” Thus, the prohibition on prerecorded telemarketing messages does not apply to purely informational messages. The following are examples of purely informational messages:
- a reminder of a single appointment previously scheduled at the call recipient’s request;
- reminders of a series of recurring appointments previously scheduled at the call recipient’s request (for example, weekly dance class reminders; quarterly pest control service reminders);
- an update on a prior sales transaction (for example, a notification of order status, shipping information, delivery dates and times, or overdue payments); or
- a recall notification.
“Mixed” Messages: Any prerecorded informational message that includes a sales or solicitation component to induce, directly or indirectly, a purchase of goods or services or a charitable contribution is prohibited, unless the seller has obtained the call recipient’s prior written agreement to receive prerecorded message calls. If a call delivers a prerecorded message that includes any content tending to induce a consumer to purchase a good or service (whether or not the good or service is related to a prior purchase), or to alter the terms of a prior transaction, then the call is not purely informational. Instead, such a call is a telemarketing message that is prohibited, unless agreed to in advance. Examples of informational messages that are prohibited because they are combined with a telemarketing message include messages that provide any information about:
- the availability of any product or service, whether or not the message provides a means for purchasing it;
- the availability of additional options or upgrades for a previously purchased product or service;
- the availability of alternative terms or conditions for a previously purchased product or service; and
- the availability of an extended warranty (or service contract) on a previously purchased product or service.
Exemptions from the Prerecorded Call Requirements
Two general types of prerecorded message calls that would otherwise be prohibited by the TSR are nevertheless expressly exempted from coverage. First, the amendments completely exempt certain prerecorded healthcare message calls. Second, the amendments partially exempt prerecorded message calls placed on behalf of a non-profit charitable organization by a for-profit telemarketer to members of, or previous donors to, the charitable organization on behalf of which the calls are being placed. The paragraphs immediately below explain these exemptions in greater detail.
Healthcare Message Exemption
This exemption is limited to calls permitted under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), pursuant to regulations issued by the Department of Health and Human Services. The only healthcare calls that are exempt are those “made by, or on behalf of, a covered entity or its business associate, as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.”
The HIPAA Privacy Rule permits only three types of calls, whether “live” or prerecorded, by a healthcare provider or its business associates without a patient’s prior authorization – namely:
- calls to describe a health-related product or service that is provided by, or included in a plan of benefits of, the covered entity making the communication;
- calls for treatment of the individual; and
- calls for case management or care coordination for the individual, or to direct or recommend alternative treatments, therapies, health care providers, or settings of care to the individual.
Only these three categories of prerecorded healthcare message calls are exempt from the TSR prohibition of telemarketing calls that deliver a prerecorded message. Some examples of exempt healthcare-related HIPAA calls are prerecorded messages calls made by or on behalf of a:
- pharmacy to provide prescription refill reminders;
- medical provider to provide medical appointment or other reminders (for example, availability of flu shots or mammograms);
- durable medical equipment supplier to document that a patient has used his or her current supply (for example, of insulin needles or respiratory supplies) before sending additional supplies; and
- case manager to check on a patient’s condition.
Prerecorded messages involving products or services not prescribed by a doctor or other healthcare provider as part of a plan of treatment, and therefore not within the healthcare exemption would include, for example prerecorded message calls made by or on behalf of a provider of:
- vitamins, minerals, or alternative medical therapies;
- gym or health club memberships; or
- weight loss products or programs.
Charitable Fundraising Messages Exemption
As noted above, non-profit organizations — those entities that are not organized to carry on business for their own, or their members’ profit — are not covered by the TSR because the FTC Act specifically exempts them from the FTC’s jurisdiction. As explained above, however, the USA PATRIOT Act, passed in 2001, brought charitable solicitations by for-profit telemarketers within the scope of the TSR. As a result, most of the TSR’s provisions are applicable to “telefunders” — telemarketers who solicit charitable contributions.
Nevertheless, the FTC has partially exempted certain calls placed by telefunders from the prerecorded message prohibition. Under this exemption, telefunders may place calls delivering prerecorded messages to prior donors and members of the charity on behalf of which the calls are placed, even if the charity does not have the call recipients’ express written agreement to receive such calls.
This is only a partial exemption because telefunders still must comply with the other requirements of the prohibition, including the automated interactive opt-out requirements and the three additional requirements that mirror those of the abandoned call prohibition. Specifically:
- to allow the telephone to ring for at least fifteen (15) seconds or four (4) rings before disconnecting an unanswered call;
- to play the prerecorded message within two seconds after the recipient of the call completes his or her greeting; and
- to comply with all other requirements of the TSR and other applicable federal and state laws.
The partial exemption only relieves telefunders from complying with the written agreement requirement.
Transmitting Caller ID Information
It is a violation of the TSR to fail to transmit or cause to be transmitted the phone number, and, when available by the telemarketer’s phone company, the name of the telemarketer to any consumer’s caller identification service.
To comply with this requirement, a telemarketer may transmit its own number and, where available, its own name, to consumers’ caller identification services. The TSR also allows a substitution of the name of the seller (or charitable organization) on whose behalf the telemarketer is calling, and the seller’s (or charitable organization’s) customer (or donor) service telephone number, which is answered during regular business hours. The TSR allows a service bureau calling on behalf of many client-sellers to transmit a client-seller’s customer service number (or the donor service number of a charitable organization client) as well as the names of these entities, if the service bureau’s phone company has the capacity to transmit this information.
There may be situations when a consumer who subscribes to a Caller ID service does not receive a telemarketer’s transmission of Caller ID information despite the fact that the telemarketer has arranged with its carrier to transmit this information in every call. This can happen if the Caller ID information is dropped somewhere between the telemarketer’s call center and the consumer’s telephone. Telemarketers who can show that they took all available steps to ensure transmission of Caller ID information in every call will not be liable for isolated inadvertent instances when the Caller ID information fails to make it to the consumer’s receiver. Nevertheless, a telemarketer’s use of calling equipment that is not capable of transmitting Caller ID information is no excuse for failure to transmit the required information.
The FCC’s telemarketing regulations under the TCPA also include provisions governing the transmission of Caller ID (47 C.F.R. § 64.1200).
Threats, Intimidation, and Profane or Obscene Language
Sellers and telemarketers are prohibited from using threats, intimidation, and profane or obscene language in a telemarketing transaction. This prohibition covers all types of threats, including threats of bodily injury, financial ruin, and threats to ruin credit. It also prohibits intimidation, including acts that put undue pressure on a consumer, or that call into question a person’s intelligence, honesty, reliability, or concern for family. Repeated calls to an individual who has declined to accept an offer also may be viewed as an act of intimidation.
Calling Consumers Repeatedly or Continuously, with the Intent to Annoy, Abuse or Harass
A consumer asks to be placed on a company’s Do Not Call list. If the telemarketer who receives that request decides to dial the consumer’s number repeatedly, hanging up each time or making obnoxious or offensive remarks to the consumer in retaliation, the calls would violate this provision of the TSR. Repeated calls urging a consumer to take advantage of an offer also would violate this provision, provided they are made with the intent to annoy, abuse or harass.
For more information, see here: https://www.ftc.gov/tips-advice/business-center/guidance/complying-telemarketing-sales-rule
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