2018 GNYADA Membership Directory

“do-not-call” lists independent of the national list, dealers must scrub telemarketing lists against both the FTC’s National Do Not Call Registry and applicable state do-not-call lists. Additionally, dealers are required to keep their own internal company-specific list of customers who indicate that they do not want to be contacted by telephone and their contact information must be deleted from marketing lists as well. If you share customer information with affiliates or third parties, make sure to scrub from the shared lists any customers who have opted out of being contacted in any medium of expression. Beyond do-not-call provisions, the TSR, among other things, requires a certain “prompt” disclosure at the outset of each sales call or sales pitch and certain other disclosures of important information before the consumer agrees to purchase any goods or services in a telemarketing transaction. The prompt disclosures include the seller’s identity and the call’s sales purpose. Among the required material disclosures are the total cost of the products or services; any restrictions, limitations, or conditions to purchase; full details of any “negative option” features whereby the consumer’s failure to act accepts the offer; and any sweepstakes information. These disclosures must be “clear and conspicuous” in a way that a consumer will notice and understand. The TSR separately prohibits any misrepresentations regarding this information. The TSR requires sellers to obtain a consumer’s “express verifiable authorization” confirming a telemarketing transaction, which means giving the consumer several prescribed items of information to complete and confirm the transaction. The TSR separately requires sellers to obtain the consumer’s “express informed consent” to a telemarketing transaction. The specific requirements of this “informed consent” standard differ depending on the details of the relationship between the seller and the consumer and the nature of the offer. The TSR’s list of prohibited abusive practices includes repeated calling with an intent to harass or annoy, calling before 8:00 a.m. or after 9:00 p.m., and restrictions on abandoned calls and prerecorded message telemarketing. The TSR generally prohibits abandoned calls but establishes a limited safe harbor allowing for restricted use of predictive dialers. A telemarketing call is abandoned if a live consumer answers the call and no live sales agent is available to speak to the consumer within two seconds. Predictive dialers can produce abandoned calls when the dialer calls more consumers than there are available sales agents. To take advantage of the safe harbor, callers may use a predictive dialer provided that it does not abandon more than three percent of all calls answered by a live consumer. For the permitted three percent of calls that can be abandoned, the caller must provide a recorded message identifying the caller by name and telephone number. As explained below, the FCC’s TCPA rule also regulates abandoned calls but establishes a stricter set of requirements for its safe harbor. The TSR requires the called consumer’s express agreement to deliver prerecorded telemarketing messages. This agreement must be in writing, must be signed by the consumer, must include the consumer’s telephone number, must identify the seller receiving the consent, and must explain what the consumer is agreeing to. Sellers are prohibited from requiring a consumer to provide this agreement as a condition of any purchase. In other words, consumers must be able to do business with the seller without providing this agreement to receive prerecorded telemarketing messages. As with respect to the call abandonment provision, the FCC’s TCPA rule also regulates in this area with standards that are stricter than the TSR’s. The FCC’s approach is set out below. Even when the seller has the consumer’s consent, all prerecorded telemarketing calls must include an automated interactive opt-out mechanism that allows the consumer to make a company-specific do-not-call request. This mechanism must be presented to the consumer within two seconds at the start of the call and must begin with the “prompt” disclosures required by the TSR. This opt-out mechanism must be available throughout the call and must disconnect from the consumer’s line immediately after the consumer uses the mechanism to opt out. For

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