Tuesday, the FTC announced two amendments to the Telemarketing Sales Rule (TSR) related to prerecorded calls. The changes are a result of a rulemaking proceeding initiated in 2004. The first amendment bars telemarketing calls that deliver prerecorded messages, unless a consumer has expressly agreed to receive such calls. The second amendment modifies the current method under the TSR for calculating maximum permissible levels of “call abandonment.”
Under the first amendment, prerecorded solicitations are prohibited whether a live person answers the phone, or a voicemail or other answering service picks up the call. Sellers are allowed, however, to obtain signed, written agreements by consumers to receive prerecorded sales calls. The prohibition does not apply to “informational” prerecorded messages, such as reminders of appointments or status of flights (calls to members of or previous donors to non-profits are also exempt). Previously, the FTC had in effect a safe harbor that permitted prerecorded calls to existing customers. The new amendment puts the FTC at odds with similar regulations administered by the FCC. In response to this discrepancy, the FTC notes that the issue was raised in comments, but was considered and rejected by the Commission when it considered adopting a prerecorded call safe harbor, and that there is nothing new in the more recent comments that would warrant reconsideration of the Commission's previous conclusions.
With regard to the second amendment, the TSR now sets a limit on how often telemarketers can call consumers when no sales representative is actually available. “Call abandonment” is a common side-effect when telemarketers place automated calls in anticipation of a sales associate being available to speak to the recipient within a certain number of seconds after the call is picked up. The new amendment requires that at least 97% of telemarketers’ calls that are answered in person be connected to a live salesperson within two seconds of the consumer answering the call. The amendment retains the current 3% permissible abandonment rate, but calculates the rate over a period of 30 days, rather than the current daily basis.
The provision requiring written permission from consumers to receive prerecorded solicitations will become effective on September 1, 2009. The amendment modifying the method for calculating call abandonment rates becomes effective October 1, 2008. As of December 1, 2008, all prerecorded telemarketing calls must provide an automated interactive opt-out option for consumers to end the call.