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Common Misconception: FTC Fighting Robocalls and predictive dialers?


As of September 1st 2009, the FTC TSR (Telemarketing Sales Rule) has changed. There seem to be different and conflicting interpretations of these new rules, some of which due to misinterpretation from the media.

According to Mike Storm, VP of sales with, there even are newspaper headlines talking about the end of automatic dialers. However, as Mr. Storm sates, this is not what the FTC’s TSR changes are about. It prohibits most acts of voice broadcasting without written consent of the called party.

“When you study the regulations, TSR prohibits telemarketing calls placed on and after September 1, 2009, that deliver prerecorded messages, whether answered in person by a consumer or by an answering machine or voicemail service, unless the seller has previously obtained the call recipient’s written and signed agreement (which may be obtained electronically under the E-Sign Act) to receive such calls.”

Though a lot of media like to suggest it, written consent does not imply people have to write and send in a letter. As the FTC states, the written and signed agreement can also be obtained electronically. For example at an electronic point of sale, a telephone key press or a voice recording.

“The Rule 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 Rule’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, or a voice recording.”

Additionally, calls that deliver a prerecorded message must allow the call recipient to be able to opt-out through an automated system, like a key press on an IVR (Interactive Voice Response) system.

Certain categories of prerecorded calls are exempt from the new TSR. For example purely informational calls that do not fall in the rule’s definition of telemarketing. Certain types of business entities are also exempt, because they fall outside the FTC’s jurisdiction:

* banks, federal credit unions, and federal savings and loans
* common carriers — such as long-distance telephone companies and airlines — when they are engaging in common carrier activity.
* non-profit organizations — those entities that are not organized to carry on business for their own, or their members’, profit.

Mr Storm adds that another common misconception is that these entities can use voice broadcasting however they like. These types of calls may perhaps not be governed by the FTC, often are regulated and fall under other legal jurisdictions. For example healthcare voice broadcasts are subject to the Health Insurance Portability and Accountability Act of 1996. And even though non-profit organizations are exempt, charitable solicitations made by for-profit telemarketers do fall under the TSR provisions since the 2001 patriot act. These telemarketers are referred to as Tele-funders by the FTC.

Telefunders are required to:

* make certain prompt disclosures in every outbound call.
* get express verifiable authorization if accepting payment by methods other than credit or debit card.
* maintain records for 24 months.
* comply with the entity-specific Do Not Call requirements, but are exempt from the National Do Not Call Registry provision.
* include in any prerecorded message call on behalf of a non-profit organization to a member of, or previous donor to, the non-profit, a prompt keypress or voice-activated opt-out mechanism.

Telefunders are prohibited from:

* making a false or misleading statement to induce a charitable contribution.
* making any of several specific prohibited misrepresentations.
* engaging in credit card laundering.
* placing “cold” calls that deliver prerecorded messages.
* engaging in acts defined as abusive under the TSR, such as calling before 8 a.m. or after 9 p.m., disclosing or receiving consumers’ unencrypted account information, and denying or interfering with a consumer’s right to be placed on a Do Not Call list.

So the new regulations per September 1st do not prohibit every automated or predictive dialers, and some forms of voice broadcasting are still allowed. Making calls on behalf of a legal entity which seems exempt does not mean it is “free game”, there are most likely subject to the jurisdiction of other entities and must follow their rules and acts.

This is not intended as legal advise, please visit the FCC and FTC websites for more in depth information. This post is intended to inform customers of common misconceptions.


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