As blogged about recently, on March 7, 2024, the Federal Trade Commission announced a final rule extending telemarketing fraud protections to businesses and updating the Telemarketing Sales Rule’s recordkeeping requirements. Specifically, the final rule implements updates that prohibit deceptive and abusive practices in all business-to business calls; updates the TSR’s recordkeeping requirements; and proposed an amendment to the TSR that would extend the TSR to over inbound telemarketing calls involving technical support services.
The new FTC attorney recordkeeping requirements (have a limited exemption) are by-and-large required in order to assert a DNC safe harbor defense. For example and without limitation, records such as: (i) the calling number’ (ii) the number called; (iii) if the call was placed to an individual or a business; (iv) certain customer information; (v) certain records establishing the existence of an established business relationship (if relied upon by the caller); (vi) certain records establishing consent, including verbal consent (if relied upon by the caller); (vii) whether the call was pre-recorded (and copies pre-recorded messages), (ix) the time date and length of the call, (x) certain records pertaining to opt-out requests, (xi) and the outcome of the call, including information pertaining to the products or services purchased.
Importantly, certain records of the National DNC version utilized and the service providers used to disseminate outbound calls must also be maintained. Applicable records must now be maintained for five (5) years.
With regard to the safe harbor, the new rule provides for a safe harbor of thirty (30) days from the date of discovery of a failure to maintain accurate records in order to fix unintentional deficiencies. Note that the failure to maintain proper records is deemed a violation of the TSR and subject to monetary civil penalties of up to $51,744, per violation/call. So, relying upon a tenuous safe harbor rather than ensuring the implementation of compliance protocols is risky business.
Takeaway: Telemarketers and lead generators should consult with an experienced FTC attorney to discuss recent changes to the Telemarketing Sales Rule and Telephone Consumer Protection Act in order to implement robust compliance, training and audit processes, including recordkeeping.
Richard B. Newman is an FTC defense lawyer at Hinch Newman LLP. Follow FTC defense lawyer on National Law Review.
Informational purposes only. Not legal advice. May be considered attorney advertising.
