On March 7, the Federal Trade Commission (FTC) announced a final rule updating recordkeeping requirements and extending the protections against misrepresentations of the Telemarketing Sales Rule (TSR) to businesses (Final Rule). It also announced a notice of proposed rulemaking to extend the TSR’s coverage to inbound telemarketing calls involving technical support services. These actions are part of the FTC’s current review of the TSR, which includes the Do Not Call (DNC) Registry rules and provisions banning nearly all telemarketing robocalls to consumers.
Under the Final Rule, the TSR is amended to require sellers and telemarketers to keep additional records of their telemarketing activities. Specifically, telemarketers will be required to keep: (i) a copy of each unique prerecorded message; (ii) call detail records of telemarketing campaigns; and (iii) records sufficient to show a seller has an established business relationship with a consumer. Other requirements only apply to certain types of calls, such as charitable solicitations. These include: records sufficient to show a consumer is a previous donor to a particular charity, records of a seller or charitable organization’s entity-specific DNC registries and records of which version of the DNC Registry was used to ensure compliance. Importantly, the Final Rule increases the record retention requirement from two to five years. Telemarketers and sellers will have 180 days after the Final Rule is published in the Federal Register to implement any new systems, software, or procedures necessary to comply with the new requirements.
And, as a major change, the Final Rule extended the scope of the TSR to apply to business-to-business telemarketing (B2B). Previously, most B2B communications were exempted from the provisions of the TSR.
Separately, under a Notice of Proposed Rulemaking, the FTC is proposing amending the TSR to extend its coverage to inbound telemarketing calls by consumers to technical support services (defined as “any plan, program, software or service that is marketed to repair, maintain, or improve the performance or security of any device on which code can be downloaded, installed, run, or otherwise used, such as a computer, smartphone, tablet, or smart home product). For example, the TSR would apply to calls that consumers make in response to an advertisement or a pop-up message claiming that the consumer’s computer has a problem and directing the consumer to call a phone number to fix the error. The proposed rulemaking would exclude technical support services where the person providing the repair takes physical possession of the device and any technical support calls not made as a result of solicitation or advertisement by the seller or telemarketer.
According to the FTC’s announcement, the “proposed amendment is needed due to the widespread deception and consumer injury caused by tech support scams, including those in which consumers call supposed tech support operations in response to advertising.”
The FTC is accepting comments on the proposed rulemaking until 60 days after publication in the Federal Register.
