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The FTC unanimously approves a final rule that amends the agency’s Telemarketing Sales Rule (TSR).  Among other things this new rulemaking modifies the TSR’s current recordkeeping obligations to require telemarketers to retain call detail records, evidence of consent to make calls, records demonstrating compliance with the National Do Not Call Registry, and a written agreement allocating responsibility between sellers and telemarketers for the recordkeeping required under the TSR.  The rule also prohibits business-to-business telemarketing calls that qualify as misrepresentations under the Rule.  

“Today’s changes provide important new protections for small business and will help ensure that the FTC can take action against deceptive marketers who use AI robocalls and other emerging technology,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection. “We look forward to comments from the public on the additional proposals that would deter tech support scams and aid the Commission’s efforts to put money back into the pockets of defrauded consumers.”

The final rule announced implements updates that updates the TSR’s recordkeeping requirements: The final rule will make several modifications to the recordkeeping amendments. The primary substantive modifications relate to new recordkeeping requirements for call detail records and its corresponding safe harbor, records of consent, records of compliance with the DNC Registry, and the provision allowing sellers and telemarketers to allocate responsibility for recordkeeping.

The final rule also prohibits deceptive and abusive practices in all business-to-business calls: The original TSR exempted business-to-business calls (other than those selling office and cleaning supplies, which the Commission considered the “most significant business-to-business problem area” at the time). The final rule announced expands prohibitions against misrepresentations to business-to-business telemarketing.

The new rule states there will be a grace period of 180 days after publication in the Federal Register for the updated recordkeeping requirements.

Additionally, the new rule adds some clarification on the required recordkeeping around consent. The FTC said it  “wanted to make clear that common practices previously employed by telemarketers or sellers, such as maintaining a list of IP address and timestamps as proof of consent, are insufficient to demonstrate that a consumer has, in fact, provided consent to receive robocalls or receive telemarketing calls when the consumer has registered her phone number on the DNC Registry.”

Under the new rule, a record of each telemarketing call made must include the following  requirements:

1. The name of the telemarketer that placed or received the call
2. The seller for which the telemarketing call is placed or received
3. The good, service, or charitable purpose that is the subject of the telemarketing call
4. Whether the telemarketing call is to an individual consumer or a business consumer
5. Whether the telemarketing call is an outbound telephone call
6. Whether the telemarketing call utilizes a prerecorded message
7. The calling number, the called number, date, time and duration of the telemarketing call
8. The telemarketing script and prerecorded message, if any, used during the call
9. The caller ID number and caller ID name (if transmitted), any contracts or proof of authorization to use that telephone number and name, and the time that the authorization applies
10. The disposition of the call, including but not limited to, what’s the call connected, dropped, or transferred. If transferred, the number and name of the party the call was transferred to.

These ten items are necessary for every call, unless “an individual telemarketer” is “manually entering a single telephone number to initiate the call”. Then, the telemarketer doesn’t have to retain the caller ID information or the disposition of the call information. But the other eight still apply.

We will keep you posted of more updates!

Final Rule  (03/07/2024)  
FTC Final Rule Press Release
See:  16 CFR Part 310
RIN 3084-AB19