FTC Announces Potential Changes to Telemarketing Sales Rule

On April 28, 2022, the Federal Trade Commission (FTC) held an Open Commission Meeting to address the Notice of Proposed Rulemaking (NPRM) and the Advance Notice of Proposed Rulemaking (ANPR) regarding the Telemarketing Sales Rule (TSR).

NPRM vs. ANPR

The NPRM lays out how the FTC plans to address a specific problem and requests comments on the plan. After the NPRM is published in the Federal Register and after public hearings, if the FTC holds them, they can proceed to a final rule or, if the comments warrant, develop a different rule and re-propose it.

An ANPR is a document the FTC may choose to issue before it is ready to issue an NPRM. It may also be called a “notice of intent” or simply a “request for comments.” The ANPR is used by the FTC as a vehicle for obtaining public participation in the formulation of a regulatory change before the agency has done significant research or investigation on its own. If an agency chooses to use an ANPR, it still must issue an NPRM before issuing a final rule on that subject.

During the April 28th Open Commission Meeting, the Bureau’s Division of Marketing Practices presented an overview of the proposed amendments. The proposal has two pieces:

1. NPRM proposing the following amendments to the TSR:

• Require all Business-to-Business (B2B) telemarketing calls to comply with the TSR’s existing prohibitions on misrepresentations/false/misleading statements
• Enhance the TSR’s record-keeping requirements, which require retention of:
  • a copy of each unique prerecorded message
  • call detail records of telemarketing campaigns
  • records sufficient to show a seller has an established business relationship with a consumer
  • records sufficient to show a consumer is a previous donor to a particular charitable organization
  • records of the service providers that a telemarketer uses to deliver outbound calls
  • records of a seller or charitable organization’s entity-specific (internal) do-not-call (DNC) list
  • records of the Commission’s DNC Registry that were used to ensure compliance
• Change the time period of existing TSR record-keeping requirements from 2 years to 5 years

2. ANPR seeking comments on three issues:

• Whether to modify or repeal the B2B exemption entirely
• Whether the TSR should apply to inbound tech support calls
• Whether the TSR should require a simple notice and cancellation mechanism for negative-option sales.

None of the changes are official yet, but the NPRM and ANPR were both passed unanimously by the FTC. Comments on the NPRM and the ANPR are due within 60 days after publication in the Federal Register, which is expected in the coming days.

Please reach out to us at connect@compliancepoint.com if you have any questions about these potential changes or how CompliancePoint can assist your organization with managing your marketing compliance.