The national "Do-Not-Call" registry and other recent changes to the Federal Trade Commission's Telemarketing Sales Rule

Army Lawyer, April, 2004 by Carissa D. Gregg

Partially Exempt Calls

Certain other calls are only required to follow particular provisions of the TSR. Such phone calls include:

(a) calls relating to the sale of 900 number pay per call services; (27)

(b) calls relating to the sale of franchises or certain business opportunities; (28) and

(c) calls that require a face-to-face presentation to complete the sale. (29)

When making one of these calls, the seller must follow the following provisions of the TSR:

(a) they cannot call numbers on the do-not-call registry or interfere with a consumer's right to register on the list;

(b) they cannot call before 0800 and after 2100 hours;

(c) they cannot abandon calls; (30)

(d) they must still transmit caller identification information; and

(e) they must not annoy, abuse, harass, threaten, intimidate, or use obscene language to the person called. (31)

Special Protection Telemarketing Requirements

As mentioned in the opening scenario, the TSR requires telemarketers to disclose the Fair Credit Billing Act's (FCBA) (32) fifty dollar limit on unauthorized credit card use when trying to sell a credit card loss protection plan. (33) Additionally, if the telemarketer's offer includes a negative option feature, (34) the telemarketer must disclose the following to the consumer:

(a) that the consumer's account will be charged unless the consumer takes an affirmative step to avoid the charges;

(b) the date the account will be charged; and

(c) the specific steps the consumer must take to prevent the charges. (35)

Charity Rules

As previously discussed, the TSR requires telemarketers calling on behalf of charities to disclose the charitable organization's identity and that the purpose of the call is to solicit a charitable contribution. (36) The amended TSR further states that it is a deceptive act or practice if a telemarketer acting on behalf of a charity misrepresents:

(a) the nature, purpose or mission of the charity; (37)

(b) that the contribution is tax deductible in whole or part; (38)

(c) the purpose for which the contribution will be used; (39)

(d) the percentage of the contribution that will go to the charity; (40)

(e) any material aspect of a prize promotion; (41) or

(f) either the charity's or the telemarketer's affiliation with any person or government agency. (42)

Additional Protections to Restrict Unauthorized Billing

The new TSR provisions specifically list unauthorized billing as an abusive practice. (43) Additionally, the TSR expands previous consumer protections established by the FCBA (44) and the Electronic Funds Transfer Act (EFTA). (45) The TSR protects those transactions that fall outside of the protections of the FCBA and EFTA, such as demand drafts, by requiting telemarketers to obtain express, verifiable authorization from the consumer before billing the consumer. (46)

Submitting billing information for payment without the consumer's express verifiable authorization is also a deceptive business practice or act. (47) The TSR requires that

(a) the customer's express written authorization have the consumer's signature; (48)