FTC Proposes Amendments to The Telemarketing Sales Rule
by Robert M. Fells, Esq., general counsel
On January 30, the Federal Trade Commission (FTC) officially published a Notice of Proposed Rulemaking in the Federal Register concerning its review of the Telemarketing Sales Rule (TSR). This rule was enacted in 1995 by congressional mandate and requires telemarketers to disclose the nature of the call, the products and services offered, prices and cancellation and refund policies prior to making a sale, among other requirements.
The ICFA was instrumental in obtaining an exemption for “appointment” calls, typically made by preneed sellers, where nothing is sold but the caller seeks to meet with the consumer for a face-to-face presentation. Under the proposed amendments, the FTC has recommended retaining the “face-to-face” exemption in the TSR, but wants to add five amendments to the exemption whereby preneed callers would be prohibited from contacting consumers who placed their numbers on a national “Do Not Call” registry, among other things.
The five proposed amendments to the face-to-face exemption can be divided into three categories:
1) Two amendments duplicate existing requirements under the Telephone Consumer Protection Act (TCPA), a federal law enforced by the Federal Communications Commission with which telemarketers have had to comply since 1992. These requirements involve maintaining a company-specific “Do Not Call” list, and the prohibition against calling residences between 9 p.m. and 8 a.m.
2) Another two of the five amendments require compliance with TSR provisions that prohibit the use of threats, intimidation or use of profane or obscene language, and prohibit the blocking or circumventing a consumer’s “caller ID” system.
3) The fifth and most controversial proposal in the entire notice, prohibits calls to consumers who place their numbers on the FTC national “Do Not Call” registry. The FTC states that it has no idea how much the proposed “Do Not Call” registry will cost or who will pay for it.
Despite these proposed conditions, qualifying telemarketers would still be exempt from the TSR requirements concerning deceptive practices and recordkeeping, and from various oral disclosures.
Public comments on the FTC proposed amendments are due at the commission by March 29. At the time of filing comments, parties are also required to state their interest in participating in the upcoming FTC public forum on the Telemarketing Sales Rule amendments scheduled for June, 5, 6 and 7 in Washington, D.C.
The ICFA anticipates submitting comments stating its concerns with some of the proposals. ICFA members wanting more information should visit the FTC Web site at www.ftc.gov
and click on the Consumer Protection icon.