Alert August 26, 2008

FTC Issues Final Telemarketing Sales Rule Amendments Regarding Prerecorded Calls

The FTC issued a final rule including two amendments to the Telemarketing Sales Rule. One amendment bars telemarketing calls that deliver prerecorded messages unless a consumer previously has agreed to accept such calls from the seller. The other modifies the Telemarketing Sales Rule's method of calculating the maximum permissible level of “call abandonment,” meaning calls for which a person answers the telemarketer call but is not connected with a live salesperson.

The final rule will:

  • 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. The amendments will not affect consumers’ ability to continue to receive calls that deliver purely “informational” prerecorded messages notifying recipients, for example, that they have a service appointment or similar messages. Such "informational” calls are not covered by the Telemarketing Sales Rule because they do not attempt to sell the called party any goods or services.
  • 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.
  • Require that sellers provide, at the outset of all prerecorded messages, an automated keypress or voice-activated interactive opt-out mechanism so that consumers can opt out as easily as they can from a live telemarketing call.
  • Modify the method of calculating the maximum permissible level of call abandonment. The current 3% permissible abandonment rate will remain in place, but the final rule will permit it to be calculated over a 30-day period, rather than on a daily basis as is now the case.
The provisions of the final rule requiring permission from consumers to receive prerecorded messages are effective September 1, 2009. The provisions requiring that all prerecorded telemarketing calls provide an automated interactive opt-out mechanism are effective December 1, 2008. And, the amendment modifying the method for measuring the maximum allowable rate of call abandonment is effective October 1, 2008. Click here for the final rule.