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The new amendments to the Telemarketing Sales Rule (“TSR”) from the Federal Trade Commission (“Commission”) (FTC) includes several changes to recordkeeping requirements. One area which had significant changes is the area of recordkeeping for consent.

The TSR required a seller or telemarketer to keep “All verifiable authorizations or records of express informed consent or express agreement required to be provided or received under this Rule.” 

Excerpt from FTC Press Release:

“Get ready. It’s almost Store Your Records Day for telemarketers everywhere. You’re probably asking, what do telemarketers have to do with folks lining up outside of their local record stores to buy limited edition vinyl releases? Doesn’t Record Store Day happen in April and November? And, importantly, will there ever be a release that compares to the vinyl edition of Taylor Swift’s Long Pond Studio Sessions or Olivia Rodrigo’s Secret Tracks? Well, October 15 is a different kind of record store day. It’s the day that the Telemarketing Sales Rule (TSR) will begin requiring sellers and telemarketers to store the records of their telemarketing calls (insert drum riff here).”

Under the new rule, there is now a five year record retention period. And the scope of what is needed has been expanded. The expansion was necessary to allow the Commission to “clarify what constitutes a complete record of consent sufficient for a telemarketer or seller to assert an affirmative defense.”

The new rule, which will be in 16 C.F.R. § 310.5(a)(8), requires a complete record of consent to be retained. This complete record must include the following items:

• the name and telephone number of the person providing consent;
• a copy of the request for consent in the same manner and format in which it was presented to the person providing consent;
• the purpose for which consent is requested and given;
  a copy of the consent provided;
• the date consent was given; and
  documentation specific to consent around billing information required by other sections of the TSR.

Consent obtained via websites:

The seller or telemarketer must retain copies of the websites that were used to request the consent. Screenshots of the websites would suffice for this requirement, if they “accurately reflects what a consumer submitted in provided consent.”

In addressing the change, the Commission stated providing the categories of information required for consent gave businesses sufficient guidance, whereas not requiring a particular format gives the businesses the most flexibility. However, the Commission explicitly calls out “an IP address with a timestamp is not sufficient as a record of consent.”

Consent provided verbally:

If a telemarketer is gathering consent verbally, the telemarketer must “retain a recording of the consent requested as well as the consent provided…the recording must make clear the purpose for the which the consent was provided.”  Note that the rule does not require the whole call be recorded and retained unless other required in the TSR.

List of records that must be retained:

• The Telemarketing Sales Rule requires an expanded list of records to be kept for all telemarketing calls (both inbound and outbound):
• The name of the telemarketer that placed or received the call
• The seller for which the telemarketing call is placed or received
• The good, service, or charitable purpose that is the subject of the telemarketing call
• Whether the telemarketing call is to an individual consumer or a business consumer
• Whether the telemarketing call is an outbound telephone call
• Whether the telemarketing call utilizes a prerecorded message
• The calling number, the called number, date, time and duration of the telemarketing call
• The telemarketing script and prerecorded message, if any, used during the call
• 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 period that the authorization applies
• 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

Records for proper consent include:

• the name and telephone number of the person providing consent;
• a copy of the request for consent in the same manner and format in which it was presented to the person providing consent;
• the purpose for which consent is requested and given;
  a copy of the consent provided;
• the date consent was given; and
• documentation specific to consent around billing information required by other sections of the TSR.

Recordkeeping responsibility:

Ultimately, the seller is responsible for the records. Make sure you have developed adequate processes to update and retain the necessary records.  

{***} “….If by written agreement the telemarketer bears the responsibility for the recordkeeping requirements of this section, the seller must establish and implement practices and procedures to ensure the telemarketer is complying with the requirements of this section…..

FTC Press Release  (10/11/2024)

Telemarketing Sales Rule (TSR)