Telecommunications and Marketing Flashcards
1-3 questions
Who issued the Telemarketing Sales Rule (TSR)?
issued by the FTC to implement the Telemarketing and Consumer Fraud and Abuse Prevention Act
Define:
telemarketing
under TSR
a plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution, by use of one or more telephones and which involves more than one interstate call
What does the TSR require covered organizations to do?
- call only between 8 am - 9 pm
- screen and scrub names against the national Do Not Call list
- display caller ID info
- identify themselves and what they are selling
- disclose all material information and terms and provide accurate and complete info
- comply with special rules for prizes and promotions
- maintain internal suppression lists to respect requests to call back
- maintain substantial records for 2 years from date produced
At the beginning of a call, what must a telemarketer disclose?
under TSR
- identity of seller
- purpose of call is to sell goods or services
- nature of those goods or services
- in case of prize promotion, that no purchase or payment is necessary to participate or win, and that a purchase/payment doesn’t increase the chances of winning
Who has to comply with the TSR?
telemarketers AND sellers
What must be disclosed during a call?
under TSR
ten broad categories of info must always be disclosed:
1. cost and quantity
2. material restrictions, limitations or conditions
3. performance, efficacy or central characteristics
4. refund, repurchase or cancellation policies
5. material aspects of prize promotions
6. material aspect of investment opportunities
7. affiliations, endorsements or sponsorships
8. credit card loss protection
9. negative option features
10. debt relief services
Define:
What does the TSR prohibit?
- unauthorized billing: billing consumers for any goods or services without the consumer’s express, informed consent
- abandoning an outbound telephone call
- calling entities on the DNC Registry (with certain exceptions)
What is an abandoned call?
under TSR
abandoning an outbound telephone call with “hang-ups” or “dead air” where abandoned: if a person answers it and telemarketer does not connect the call to a live sales representative within two seconds of the person’s completed greeting
- must be live person (no pre-recorded message)
Define:
abandoned call safe harbor
under TSR
telemarketer won’t face enforcement action for violating if telemarketer:
- uses technology that ensures abandonment of no more than 3% of all calls answered by a live person, measured per day per calling campaign
- allows telephone to ring for 15 seconds or four rings before disconnecting an unanswered call
- plays a recorded message stating the name and telephone # of seller on whose behalf the call was placed whenever a live sales rep is unavailable within two seconds of a live person answering the call
- maintains records documenting adherence to these three reqs
How can a telemarketer obtain express, informed consent or verifiable authorization for billing?
generally, telemarketer must identify account with enough specificity for the consumer to understand which account will be charged and obtain the consumer’s express agreement to be charged using that account number
What is the record requirement under the TSR?
sellers and telemarketers must maintain following records for 2 years from date produced:
- advertising and promotional materials
- info about prize recipients
- sales records
- employee records
- all verifiable authorizations or records of express informed consent or express agreement
Who can the TSR be enforced by?
enforced by FTC and state AGs
What penalties can be brought under TSR?
violations currently punishable by civil penalties of up to $50,120 per call
Does the TSR provide a private right of action?
- limited private right of action against telemarketers as an individual that must meet threshold of $50k in actual damages to be able to file suit
- to bring class action, must show actual harm
Define:
Do Not Call Registry and its requirements
under TSR
program allows U.S. residents to register residential and wireless phone number they do not wish to be called for telemarketing purposes
- sellers and telemarketers must access the registry prior to making any phone-based solicitations
- must update call lists every 31 days with new registry information
- only sellers, telemarketers and service providers may access the registry
Who does the DNC not apply to?
- nonprofits calling on their own behalf
- calls to customers with established business relationship
- inbound calls, provided no “upsell” of additional products or services
- most business-to-business calls
Define:
established business relationship exemption
under TSR
sellers/telemarketers may call a consumer with whom a seller has an established business relationship provided the consumer hasn’t asked to be on the seller’s entity-specific DNC list
- EBR exists with a customer if customer has purchased, rented or leased the seller’s goods or services (or completed a financial transaction with seller) within 18 months preceding a telemarketing call
- EBR exists with a prospect if the consumer has made an application or inquiry regarding the seller’s goods and services within 3 months preceding a call
How can a seller/telemarketer get a customer’s consent to make calls?
under TSR
- consent must be in writing, state the numbers to which the call may be made, and include consumer’s signature
- request for consent must be clear and conspicuous
- must be opt-in
DNC Safe harbor
under TSR
seller/telemarketer won’t be held liable for erroneously calling a consumer who has asked not to be called or is on the National DNC Registry if seller/telemarketer can establish that as part of its routine business practice, it meets the following requirements:
- has established and written procedures to honor consumers’ requests that they not be called
- has trained its personnel in these procedures
- has maintain and recorded and entity-specific DNC list
- uses and maintains records documenting, a process to prevent calls to any telephone # on an entity-specific DNC list or National DNC Registry
- monitors and enforces compliance with entity’s written DNC procedure
Define:
What does the Telephone Consumer Protection Act of 1991 (TCPA) cover and who is it enforced by?
- restrictions on unsolicited advertising by telephone or facsimile, robocalls or robotexts
- enforced by FCC
Define:
robocallers and auto-dialers
under TCPA
- robocalls: prerecorded calls
- autodialers: automatic telephone dialing systems (does not include text message campaigns)
TCPA rules on robocalls and autodialers
- must get prior express written consent for all robocalls to residential lines even if have established business relationship
- consumers can opt out of future robocalls during a robocall
TCPA rules on robotexts
- robotexts prohibited absent express consent
- consent can be revoked by consumer at any time by any reasonable means
- mere fact that consumer’s wireless number appears in contact list of another wireless customer not sufficient to establish consent
- when caller has consent for wireless number and number has been reassigned, caller isn’t liable for the first call but will be liable for subsequent calls if new consumer makes caller aware of the change
Define:
prior written consent under the TCPA
robocalls and robotexts
prior written consent now means the consent obtained must include a clear and conspicuous disclosure that telemarketing calls or texts can be made with an autodialer or artificial voice AND consent can’t be obtained as requirement of purchase
fax marketing under TCPA
TCPA also prohibits unsolicited commercial fax transmissions without consent
Junk Fax Prevention Act (JFPA)
- 2005 amendment to TCPA
- specifically provides that consent can be inferred from an EBR and permits sending commercial faxes to recipients based on an EBR as long as the sender offers an opt-out in accordance with the act
Is there a private right of action under the Junk Fax Prevention Act?
private right of action and statutory damages of up to $500 per fax
What does the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003 cover?
covers transmission of commercial email messages with a primary purpose of advertising or promoting a product or service
Who does CAN-SPAM apply to?
any entity that advertises products or services by e-mail directed to or originating from US
Who is CAN-SPAM enforced by and is there a private right of action?
- enforced primarily by FTC and carries fines of up to $50,120/violation
- state AGs, other federal regulators and other state officials can also enforce
- ISPs adversely affected by violation may sue violators for injunctive relief and monetary damages
- no right of action for other parties
What does CAN-SPAM generally require of commercial emails?
- prohibits false or misleading headers
- prohibits deceptive subject lines
- requires commercial emails to contain a functioning, clearly and conspicuously displayed return email address that allows the recipient to contact the sender
- requires all commercial emails to include clear and conspicuous notice of the opportunity to opt out along with a cost-free mechanism for exercising the opt-out
- prohibits sending commercial email (following grace period of 10 business days) to an individual who has asked not to receive future email
- requires all commercial email to include (1) clear and conspicuous identification that the message is a commercial message (unless the recipient has provided prior affirmative consent to receive the email) and (2) a valid physical postal address of the sender
- prohibits aggravated violations
- requires all commercial email containing sexually oriented material to include a warning label
Define:
transaction or relationship message
under CAN-SPAM
message with a primary purpose to:
- facilitate or to confirm an agreed-upon commercial transaction
- provide warranty or safety information about a product purchased or used by the recipient
- provide certain information regarding ongoing commercial relationship
- provide information related to employment or a related benefit plan
- deliver goods or services to which the recipient is entitled under the terms of an agreed-upon transaction
(is NOT commercial email message)
Define:
sender
under CAN-SPAM
anyone who initiates an email message and whose product or service is advertised or promoted by the message
Does CAN-SPAM preempt state laws?
CAN-SPAM preempts most state laws that restrict email communications
Define:
mobile service commercial message (MSCM)
under CAN-SPAM
commercial electronic mail message that is transmitted directly to a wireless device that is utilized by a subscriber of a commercial mobile service
- must use a unique electronic address that includes a reference to internet domain
- covers messages sent using SMS technology but not phone-to-phone messages
How does CAN-SPAM regulate MSCMs?
CAN-SPAM Act prohibits senders from sending any MSCMs without the subscriber’s express prior authorization
What must an authorization contain?
CAN-SPAM MSCMs
each authorization must include certain req’d disclosures stating that:
- subscriber is agreeing to receive MSCMs sent to their wireless device from a particular (identified) sender
- subscriber may be charged by their wireless provider in connection with receipt of such messages
- subscriber may revoke authorization at any time
authorization must be specific to sender and must clearly identify the entity that is being authorized to send the MSCMs
How can a consumer revoke authorization or opt-out?
CAN-SPAM MSCMs
- senders must enable consumers to revoke authorizations using same means they used to grant
- MSCMs must include functioning return email addresses or other internet-based mechanism that is clearly and conspicuously displayed for purpose of receiving opt-out requests
Define:
What does the Telecommunications Act of 1996 govern?
Section 222 of the act governs the privacy of customer information provided to and obtained by telecommunications carriers
Define:
CPNI
under Telecommunications Act
information collected by telecommunications carriers related to their subscribers
- includes subscription information, services used, network and billing info, call log data
- certain PI such as name, telephone number and address NOT considered CPNI
Opt-In Rule for CPNI
under Telecommunications Act
carriers must obtain express consent before CPNI can be shared with third parties unless with a joint venture or independent contractor for non-marketing purposes (opt-out within 30 days of notice)
Who is subject to CPNI requirements?
telecommunications carriers and voice-over-internet protocol (VoIP) providers that are interconnected with telephone service
- streaming video companies exempt
What does the Cable Communications Policy Act of 1984 require?
- must furnish privacy notice to customers initially and annually
- may only collect PI that is necessary to render cable services or to detect the unauthorized reception of cable services
- cannot disseminate PI without written or electronic consent of subscriber, unless exception
- must destroy PI when no longer needed for purpose it was collected for
Does the Cable Communications Policy Act provide for a private right of action?
yes, allows for actual or statutory damages, punitive damages and reasonable attorneys’ fees and court costs
Define:
privacy notice requirement
under Cable Communications Policy Act
when entering into agreement to provide cable services and on annual basis thereafter, cable service providers are required to give subscribers a privacy notice that “clearly and conspicuously” informs subscribers of:
1. the nature of the PI collected
2. how such info will be used
3. the retention period of such information, and
4. the manner by which a subscriber can access and correct such information
dissemination of PI requirement and exceptions
under Cable Communications Policy Act
cable service providers cannot disseminate PI without “written or electronic consent” of the subscriber, unless the disclosure is subject to a specific exception:
- to the extent necessary to render services or conduct other legitimate business activities
- subject to a court order with notice to the subscriber, or
- if the disclosure is limited to names and addresses and the subscriber is given an option to opt out
Define:
video tape service provider
under Video Privacy Protection Act of 1988
anyone engaged in business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials as well as individuals who receive personal info in ordinary course of a videotape service provider’s business or for marketing purposes
What does the Video Privacy Protection Act of 1988 require?
- prohibits video tape service providers from disclosing customer PI unless enumerated exception applies
- PI should be destroyed as soon as practicable and no later than 1 year from date info is no longer necessary for purpose for which it was collected
What are the exceptions to the disclosure rule?
under Video Privacy Protection Act
if discloure:
- made to consumer themselves
- made to contemporaneous written consent of the consumer
- made to law enforcement pursuant to a warrant, subpoena or other court order
- includes only the names and addresses of consumers
- includes only names, addresses and subject matter descriptions and the disclosure is used only for the marketing of goods or services to the consumers
- is for order fulfillment, request processing, transfer of ownership or debt collection
- is pursuant to a court order in a civil proceeding and the consumer is granted a right to object
Is there a private right of action under the Video Privacy Protection Act?
yes, actual or statutory damages ($2500), punitive damages and reasonable attorneys’ fees and court costs
Define:
California Online Privacy Protection Act (CalOPPA)
first law to require operators of commercial websites, including mobile apps, to conspicuously post a privacy notice if they collect personally identifiable information from those living in CA
Define:
California Age-Appropriate Design Code Act
requires online platforms to consider the “best interest” of child users and to set defaults to protect these users’ privacy
What are examples of self-regulation by companies for digital advertising?
- Digital Advertising Alliance (DAA) Self-Regulatory Principles for Online Behavioral Advertising
- Network Advertising Initiative (NAI) Code of Conduct
Define:
online behavior advertising
advertising that is targeted at individuals based on the observation of their behavior over time by tracking person across the internet
