GNYADA 2019 Membership Directory & Services Guide

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 telemarketingmessages. 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 prerecorded telemarketing calls delivered to a consumer’s voicemail, where the opt-out mechanism would not be operational, the message must provide a toll-free number that connects to an automated opt-out mechanism. Note that the TSR offers a partial exemption for telemarketing calls that require a face-to-face sales presentation before the transaction is completed. Some but not all TSR provisions apply to these calls. As noted above, the FCC also regulates telemarketing under the TCPA. Some of these standards mirror the TSR’s, and others do not. The FCC’s standards for complying with the national do-not-call list are similar to the TSR’s. The FCC, like the TSR, establishes company-specific do-not-call rights for consumers, but the standards are different. Most significantly, the FCC’s approach requires callers to have a written do-not-call compliance policy that is available upon request to anyone who asks to see it. Other than do-not-call provisions, the second key element of the FCC’s telemarketing standards regulates the use of auto dialers and prerecorded messages. This is primarily a consent standard. Callers must have “prior express written consent”to use an auto dialer or a prerecorded message to place a telemarketing call to a cell phone or to

2019 membership directory & services guide / hot topics

PG 177