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For Release: 08/27/2009

New Rule Prohibiting Unwanted "Robocalls" to Take Effect on September 1

Telemarketers Must Obtain Prior Written Approval from Consumers Who Want to Receive Such Calls

Beginning September 1, 2009, prerecorded commercial telemarketing calls to consumers – commonly known as robocalls – will be prohibited, unless the telemarketer has obtained permission in writing from consumers who want to receive such calls, the Federal Trade Commission announced today.

“American consumers have made it crystal clear that few things annoy them more than the billions of commercial telemarketing robocalls they receive every year,” said Jon Leibowitz, Chairman of the FTC. “Starting September 1, this bombardment of prerecorded pitches, senseless solicitations, and malicious marketing will be illegal. If consumers think they’re being harassed by robocallers, they need to let us know, and we will go after them.”

The new requirement is part of amendments to the agency’s Telemarketing Sales Rule (TSR) that were announced a year ago. After September 1, sellers and telemarketers who transmit prerecorded messages to consumers who have not agreed in writing to accept such messages will face penalties of up to $16,000 per call.

The rule amendments going into effect on September 1 do not prohibit calls that deliver purely “informational” recorded messages – those that notify recipients, for example, that their flight has been cancelled, an appliance they ordered will be delivered at a certain time, or that their child’s school opening is delayed. Such calls are not covered by the TSR, as long as they do not attempt to interest consumers in the sale of any goods or services. For the same reason, the rule amendments also do not apply to calls concerning collection of debts where the calls do not seek to promote the sale of any goods or services.

In addition, calls not covered by the TSR – including those from politicians, banks, telephone carriers, and most charitable organizations – are not covered by the new prohibition. The new prohibition on prerecorded messages does not apply to certain healthcare messages. The new rule prohibits telemarketing robocalls to consumers whether or not they previously have done business with the seller.

Under a previous rule that took effect on December 1, 2008, telemarketing robocall messages by businesses covered by the TSR must tell consumers how to opt-out of further calls at the start of the message, and provide an automated opt-out mechanism that is voice or keypress-activated. Prerecorded messages left on answering machines must also provide a toll-free number that connects to the automated opt-out mechanism.

After September 1, consumers who receive prerecorded telemarketing calls but have not agreed to get them should file a complaint with the Commission, either on the donotcall.gov Web site or by calling 1-888-382-1222.

The Commission’s 2008 press release announcing the changes to the TSR’s prerecorded telemarketing provisions and a link to the related Federal Register notice can be found on the FTC’s Web site at:http://www2.ftc.gov/opa/2008/08/tsr.shtm.

The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 1,500 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC’s Web site provides free information on a variety of consumer topics.

(FTC File No. R411001)
(Prerecorded Telemakerting.final.wpd)

http://www.ftc.gov/opa/2009/08/robocalls.shtm

 

 

FTC Press Release August 19, 2008:

FTC Issues Final Telemarketing Sales Rule Amendments Regarding Prerecorded Calls

Rule Will Halt Prerecorded Sales Calls Unless the Seller Obtains Consumer's Permission

The Federal Trade Commission today announced two amendments to the Telemarketing Sales Rule (TSR). One will expressly bar telemarketing calls that deliver prerecorded messages, unless a consumer previously has agreed to accept such calls from the seller. The other related technical amendment modifies the TSR's method of calculating the maximum permissible level of "call abandonment."

 The amendments will not affect consumers' ability to continue to receive calls that deliver purely "informational" prerecorded messages - notifying recipients, for example, that their flight has been cancelled, that they have a service appointment, or similar messages. Such purely "informational" calls are not covered by the TSR because they do not attempt to sell the called party any goods or services.

 "Just like the provisions of the Do Not Call Registry, these changes will protect consumers' privacy," said FTC Chairman William E. Kovacic. "The amendments now directly enable consumers to choose whether they want to receive prerecorded telemarketing calls." The amendments announced today will be published in theFederal Register shortly, and are available now as a link to this press release on the FTC's Web site.

The New TSR Amendments

 Specifically, the TSR amendments adopted by the Commission and announced today:

Expressly prohibit telemarketing sales calls 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 recipient's signed, written agreement to receive such calls;

Permit sellers to obtain the required permission for prerecorded message sales calls from a consumer in any manner permitted by the Electronic Signatures In Global and National Commerce Act (E-SIGN Act);

Effective Dates

The provision requiring that all prerecorded telemarketing calls provide an automated interactive opt-out mechanism will become effective on December 1, 2008. The provision requiring permission from consumers to receive such calls will become effective September 1, 2009. The amendment modifying the method for measuring the maximum allowable rate of call abandonment will become effective on October 1, 2008….

 From the FCC website:

The National Do-Not-Call List

 Once you have placed your home phone number or numbers, including any personal wireless phone numbers, on the national Do-Not-Call list, callers are prohibited from making telephone solicitations to those number(s). Your number or numbers will remain on the list until you remove them or discontinue service – there is no need to re-register numbers.

 The national Do-Not-Call list protects home voice or personal wireless phone numbers only. While you may be able to register a business number, your registration will not make telephone solicitations to that number unlawful.

 From dnc.com/complianceInfo/faq:

 Q. What is the TCPA?

A. The Telephone Consumer Protection Act of 1991 (TCPA) was the first piece of legislation to regulate the telemarketing industry. Under Federal Communication Commission (FCC) jurisdiction, these laws were enacted for the purpose of striking a balance between protecting the rights of consumers and to allow legitimate business to use telemarketing effectively.

 The TCPA requires telemarketers to formalize existing or create new policies to comply with regulations covering: Proper Identification Calling Hours Restrictions and company specific Do-Not-Call (DNC) lists. The DNC component of the TCPA was the catalyst for many state governments to create statewide DNC lists and impose significant fines for violations. The law was revised in 2003 to coordinate itself with the Federal Trade Commission’s (FTC) Telemarketing Sales Rule (TSR). The revisions also made the national DNC list cover FCC regulated businesses

Q.  What is the Telemarketing Sales Rule (TSR)?

A.  The Telemarketing Sales Rule (TSR) enacted in 1995. Under Federal Trade Commission (FTC) jurisdiction, this law was enacted for the purpose of combating telephone fraud. In an effort to keep pace with developing technologies, the law was expanded in 2003 to include oversight of the national Do-Not-Call (DNC) list, Predictive Dialing, Caller ID, Billing Information, Payment Disclosure, Up-sells, and associated Record Keeping.

 Q.  What about Business-to-Business (B2B) calls?

 A.   Business to business calls are not covered under  the TSR or TCPA

With Lightning Bolt Leads, you are not calling consumers, you are calling businesses. If you have a website advertising a product or service, that’s your business. Any phone number on that website is a number for conducting business.  Any call to that number, if obtained from the website, is a call to a business, not a consumer.  If any issues arise with the FTC, you are covered because you can show the exact website from which the contact information was harvested.

What Does "Written Permission" Really Mean? (Paraphrased From FTC Information)

Networkers that use voice broadcasting  to solicit consumers MUST ENSURE that their data lists are “Opt-In” to receive pre-recorded voice messages from the particular company in the form of written consent, including the person’s phone number and signature. The written consent must be specific to agreeing to receive pre-recorded voice calls from that particular company. Written consent obtained in compliance with the E–SIGN act will satisfy the requirements of the law (For example, agreements obtained via an email or website form). Any agreement obtained pursuant to E–SIGN must be sufficient to show that the consumer:

(1)    Received clear and conspicuous disclosure of the consequences of providing the requested consent  — i.e., that the consumer will receive future calls that deliver prerecorded messages and…

(2)    Having received this information, agrees unambiguously to receive such calls at a telephonenumber the consumer designates.

Remember This: The FTC does NOT acknowledge the "excuse" that you didn't know about the new regulation.  In any industry the FTC regulate and with every regulation they enforce, participants in that industry are "expected" to know the most current regulation in force.

 

Information Links from the FTC

 

16 C.F.R. Part 310: Telemarketing Sales Rule: Commission Adoption of Amendment Making Explicit AProhibition On Prerecorded Telemarketing Calls Without A Consumer's Express Written Agreement ToReceive Such Calls: Final Rule

 Text of the Federal Register Notice – regarding the new amendment

 News Release – from the FTC

 http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt107.shtm - Especially Item 14

 Miscellaneous Information Links

 www.technology.findlaw.com/articles/00006/011201.html

 http://www.consumeraffairs.com/news04/2008/08/telemarketing_rules.html

 

About Geneology Lists & Software "Scraping" Tools

Geneology Lists: Any kind of a "list" is just that - a list.  Websites are not provided with Geneology Lists and most of these lists are not current.  Again, unless you can prove the people you broadcast to are currently engaged in a commercial activity (with their website address), you are at risk.

Software Scrapers: Software programs that "scrape" the internet for phone numbers based on keywords do not provide the websites from which the phone numbers were harvested.

 

 

 
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