Telemarketing Sales Rule (Implementing the Telemarketing and Consumer Fraud and Abuse Protection Act)

Question 1

Sector

Answer 1

Marketing

Question 2

Year passed/amended

Answer 2

1995

Question 3

Original Purpose

Answer 3

Prevent fraud and harassment in telemarketing

Question 4

Primary requirements

Answer 4

Telemarketing organizations must:

(a) call only between 8am and 9pm;
(b) check the DNC list;
(c) Display caller ID info;
(d) identify themselves and why they are calling;
(e) disclose all material information and terms;
(f) comply with special rules for prizes and promotions;
(g) respect requests to call back;
(h) retain records for at least 24 hours;
(i) comply with special rules for automated dialers, e.g. not abandon calls;
(j) not bill without express, informed consent.

Also applies to text messages

Question 5

Entities subject to the law

Answer 5

Entities that telemarket, defined as 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 one or more interstate telephone calls.”

Question 6

Term for relevant PII or regulated data

Answer 6

Telemarketing and sales calls

Question 7

Definition of relevant PII or regulated data

Answer 7

calls “conducted to induce the purchase of goods or services or a charitable contribution, by use of one or more telephones and which involves one or more interstate telephone calls.”

Question 8

Civil or criminal?

Answer 8

Civil only

Question 9

Enforcing authority - civil

Answer 9

FTC; for the Do Not Call registry, FTC, FCC and state Attorneys General

Question 10

Penalties - civil

Answer 10

Do Not Call: up to $40,654 per violation; injunctions

Question 11

Preemption?

Answer 11

No–state laws still apply

Question 12

Private right of action?

Answer 12

No

Question 13

FIP Individual Rights addressed

Answer 13

Choice and consent (not notice or access, whatever that would mean in this context)

Question 14

Choice and consent provisions

Answer 14

Opt-out: National Do Not Call registry. Telemarketers have to check the registry before placing calls, and must update list every 31 days.

Opt-out: consumers can ask specific entities not to call them again. Sellers/telemarketers must maintain internal suppression lists to respect that. Note: separate divisions are normally considered separate for opt-out-consent purposes

TCPA: express prior written consent required for robocalls to residential lines, unless made by HIPAA-regulated entities

Question 15

Exceptions for consent

Answer 15

Do Not Call does not apply to:

(a) nonprofits calling on their own behalf;
(b) calls to customers with an existing relationship within the last 18 months;
(c) calls to prospects who made an application or inquiry about caller’s goods or services within 3 months;
(d) inbound calls, unless there is an “upsell” on the call;
(e) most business-to-business calls;
(f) express written consent for a particular company to call a particular customer (must be opt-in, and “please call me” may not be pre-checked”)

Question 16

FIP Information Controls addressed

Answer 16

None

Question 17

FIP Information Lifecycle principles addressed

Answer 17

None

Question 18

FIP Information Management principles addressed

Answer 18

Administration, monitoring and enforcement (i.e. both)

Question 19

Administration provisions

Answer 19

Do Not Call safe harbor: callers aren’t subject to sanctions if they have a written policy and process, and have trained their employees to honor DNC, and they actually do check and update the list, and the call is a result of error.

Question 20

Monitoring and enforcement provisions

Answer 20

DNC safe harbor requires monitoring and enforcement of DNC-compliant policies.