This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

67287

Vol. 69, No. 221

Wednesday, November 17, 2004

1 16 CFR 310.4(b)(4)(i) (emphasis supplied). 2 16 CFR 310.4(b)(1)(iv).

FEDERAL TRADE COMMISSION 

RIN 3084–0098 

16 CFR Part 310 

Telemarketing Sales Rule

AGENCY: Federal Trade Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: In this document, the Federal 

Trade Commission (‘‘FTC’’ or 

‘‘Commission’’) addresses three issues. 

First, the Commission seeks comment 

on a proposed amendment of the 

Telemarketing Sales Rule (‘‘TSR’’) to 

create an additional call abandonment 

safe harbor to allow telemarketing calls 

that deliver a prerecorded message to 

consumers with whom the seller on 

whose behalf the calls are made has an 

established business relationship. 

Second, the Commission announces 

that, pending completion of this 

proceeding, the Commission will 

forbear from bringing any enforcement 

action for violation of the TSR’s call 

abandonment prohibition, 16 CFR 

310.4(b)(1)(iv), against a seller or 

telemarketer that places telephone calls 

to deliver prerecorded telephone 

messages to consumers with whom the 

seller on whose behalf the telemarketing 

calls are made has an established 

business relationship, as defined in the 

TSR, provided the seller or telemarketer 

conducts this activity in conformity 

with the terms of the proposed amended 

call abandonment safe harbor. Third 

and finally, the Commission seeks 

comment on a petition submitted by the 

Direct Marketing Association (‘‘DMA’’) 

to amend the TSR’s call abandonment 

safe harbor provision that currently 

requires use of ‘‘technology that ensures 

abandonment of no more than three (3) 

percent of all calls answered by a 

person, measured per day per calling 

campaign’’ 1 substituting instead the 

phrase ‘‘measured over a 30-day 

period.’’

DATES: Written comments must be 

received by January 10, 2005.

ADDRESSES: Interested parties are 

invited to submit written comments. 

Comments should refer to ‘‘Prerecorded 

Message EBR Telemarketing, Project No. 

R411001’’ to facilitate the organization 

of comments. A comment filed in paper 

form should include this reference both 

in the text and on the envelope, and 

should be mailed or delivered to the 

following address: Federal Trade 

Commission/Office of the Secretary, 

Room H–159 (Annex K), 600 

Pennsylvania Avenue, NW., 

Washington, DC 20580. Comments 

containing confidential material must be 

filed in paper form, as explained in the 

SUPPLEMENTARY INFORMATION section. 

The FTC is requesting that any comment 

filed in paper form be sent by courier or 

overnight service, if possible, because 

U.S. postal mail in the Washington area 

and at the Commission is subject to 

delay due to heightened security 

precautions. Comments filed in 

electronic form should be submitted by 

clicking on the following Weblink: 

https://secure.commentworks.com/ftctsr and following the instructions on the 

Web-based form. 

To ensure that the Commission 

considers an electronic comment, you 

must file it on the Web-based form at 

the https://secure.commentworks.com/

ftc-tsr Weblink. You may also visit 

http://www.regulations.gov to read this 

proposed Rule, and may file an 

electronic comment through that Web 

site. The Commission will consider all 

comments that regulations.gov forwards 

to it.

The FTC Act and other laws the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives, 

whether filed in paper or electronic 

form. Comments received will be 

available to the public on the FTC Web 

site, to the extent practicable, at http:/

/www.ftc.gov. As a matter of discretion, 

the FTC makes every effort to remove 

home contact information for 

individuals from public comments it 

receives before placing those comments 

on the FTC Web site. More information, 

including routine uses permitted by the 

Privacy Act, may be found in the FTC’s 

privacy policy, at http://www.ftc.gov/

ftc/Privacy.htm.

FOR FURTHER INFORMATION CONTACT:

Michael Goodman, (202) 326–3071, 

Division of Marketing Practices, Bureau 

of Consumer Protection, Federal Trade 

Commission, 600 Pennsylvania Avenue, 

NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 310.4(b)(1)(iv) of the amended 

Telemarketing Sales Rule (‘‘TSR’’ or 

‘‘Rule’’) prohibits telemarketers from 

abandoning calls. An outbound 

telephone call is ‘‘abandoned’’ under 

this section if a person answers it and 

the telemarketer does not connect the 

call to a sales representative within two 

seconds of the person’s completed 

greeting.2

Call abandonment is an unavoidable 

consequence of using ‘‘predictive 

dialers’’—telemarketing equipment that 

increases telemarketers’ productivity by 

calling multiple consumers for every 

available sales representative. Doing so 

maximizes the amount of time 

representatives spend speaking with 

consumers and minimizes the time 

representatives spend waiting to reach a 

prospective customer. An inevitable 

side effect of predictive dialers’ 

functionality, however, is that the dialer 

will reach more consumers than can be 

connected to available sales 

representatives. In those situations, the 

dialer will either disconnect the call 

(resulting in a ‘‘hang-up’’ call) or keep 

the consumer connected with no one on 

the other end of the line in case a sales 

representative becomes available 

(resulting in ‘‘dead air’’). The call 

abandonment provision is designed to 

remedy these abusive practices. 

Notwithstanding the prohibition on 

call abandonment, the TSR contains a 

safe harbor designed to preserve 

telemarketers’ ability to use predictive 

dialers. The safe harbor is available if 

the telemarketer or seller: abandons no 

more than three percent of all calls 

answered by a person; allows the 

telephone to ring for fifteen seconds or 

four rings; whenever a sales 

representative is unavailable within two 

seconds of a person’s answering the call, 

plays a prerecorded message stating the 

name and telephone number of the 

seller on whose behalf the call was 

67288 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Proposed Rules 

3The safe harbor provision is 16 CFR 310.4(b)(4).

4Starz Encore Group, The Spoken Hub, 

Copilevitz & Canter, and SoundBite 

Communications also have written to the 

Commission seeking compliance advice about this 

issue.

5 16 CFR 1.25.

6 16 CFR 310.2(n). Under this definition, 

‘‘ ‘[e]stablished business relationship’ means a 

relationship between a seller and a consumer based 

on: (1) The consumer’s purchase, rental, or lease of 

the seller’s goods or services or a financial 

transaction between the consumer and seller, 

within the eighteen (18) months immediately 

preceding the date of a telemarketing call; or (2) the 

consumer’s inquiry or application regarding a 

product or service offered by the seller, within the 

three (3) months immediately preceding the date of 

a telemarketing call.’’

7Statement of Basis and Purpose for the 

Amended TSR, 68 FR 4580, 4641 (Jan. 29, 2003). 8To support its assertion that consumers do not 

object to prerecorded message telemarketing when 

they have an established business relationship with 

the seller, VMBC states that in one typical campaign 

conducted for a major retailer, only .02 of 1% of the 

nearly 5.8 million calls resulted in the consumer 

asserting an entity-specific Do Not Call request.

9See 47 CFR 64.1200(a)(2)(iv). The FCC stated its 

rationale for retaining the established business 

relationship exemption when it revised its TCPA 

regulations last year, pursuant to the Do Not Call 

Implementation Act: ‘‘We believe that while 

consumers may find prerecorded voice messages 

intrusive, such messages do not necessarily impose 

the same costs on the recipients as, for example, 

unsolicited facsimile messages. Therefore, we retain 

the exemption for established business relationship 

calls from the ban on prerecorded messages.’’ 68 FR 

44158 (¶80) (July 25, 2003).

10The only other circumstance in which the 

TCPA permits prerecorded message telemarketing is 

in instances where the consumer has given prior 

consent. 47 CFR 64.1200(a)(6)(i).

11Public Law No. 108–10, 117 Stat. 557. Section 

4 of the DNCIA required, inter alia, that within 45 

days after the promulgation of final revised TCPA 

regulations by the FCC, the FTC and the FCC each 

transmit to the House Committee on Energy and 

Commerce and the Senate Committee on 

Commerce, Science, and Transportation a report to 

include: an analysis of the telemarketing rules 

promulgated by the FTC; an analysis of the 

telemarketing rules promulgated by the FCC; a 

discussion of inconsistencies between the rules 

promulgated by the FTC and the FCC; a discussion 

of the effect of any inconsistencies on consumers, 

and persons paying for access to the registry; and 

proposals to remedy any such inconsistencies. The 

FTC’s Report is accessible online at http://

www.ftc.gov/os/2003/09/dnciareport.pdf.

12 DNCIA Report, p. 35.

placed; and maintains records 

documenting compliance.3 Thus, to 

comply with this provision of the TSR, 

at least ninety-seven percent of a 

telemarketer’s calls that are answered by 

a person (rather than an answering 

machine) must be connected to a live 

sales representative. A telemarketing 

campaign that consists solely of 

prerecorded messages, therefore, would 

violate § 310.4(b)(1)(iv) and would not 

satisfy the safe harbor.

II. Voice Mail Broadcasting 

Corporation’s Submission Regarding 

the TSR’s Treatment of Telemarketing 

Calls To Deliver a Prerecorded Message 

to Consumers With Whom the Seller 

Has an Established Business 

Relationship 

Voice Mail Broadcasting Corporation 

(‘‘VMBC’’) submitted a request for an 

advisory opinion on the permissibility 

of prerecorded message telemarketing to 

consumers with whom the seller has an 

established business relationship.4 The 

Commission has decided to treat 

VMBC’s request as a petition to amend 

the TSR under § 1.25 of the FTC’s Rules 

of Practice.5

VMBC’s submission pertains to the 

impact of § 310.4(b)(1)(iv) on a 

telemarketer using a particular business 

model. As indicated above, that 

business model involves delivery of 

prerecorded telephone messages solely 

to consumers with whom the seller on 

whose behalf the telemarketing calls are 

performed has an ‘‘established business 

relationship.’’6 Additionally, under the 

business model in question, the 

prerecorded messages would give the 

called party an opportunity to assert an 

entity-specific Do Not Call request by 

speaking to a sales representative. The 

messages would either allow the called 

party to speak to a sales representative 

by pressing a button on the telephone 

keypad during the message, or, in the 

alternative, they would provide a tollfree number that the called party may 

call to speak to a sales representative.

VMBC asserts that the harms that 

prompted inclusion of the call 

abandonment provisions in the TSR 

would not be present in campaigns 

conducted according to the business 

model described above. Those harms 

were (1) ‘‘dead air’’ calls, in which there 

is a prolonged period of silence between 

a consumer answering a call and the 

connection of that call to a sales 

representative; and (2) ‘‘hang-up’’ calls, 

in which telemarketers hang up on 

consumers whom they have called 

without speaking to them.7 Nothing 

inherent in telemarketing calls that 

deliver prerecorded messages to 

consumers with whom the seller has an 

established business relationship would 

cause ‘‘dead air’’; nor would such calls 

necessarily result in any ‘‘hang-ups’’ on 

consumers. In fact, it appears that using 

prerecorded messages to consumers 

with whom the seller has an established 

business relationship would enable a 

telemarketer to preclude completely 

some of the odious side effects of 

predictive dialers. For instance, using a 

prerecorded message would make it 

unnecessary to subject a consumer who 

has answered a call to ‘‘dead air’’ time 

while waiting for a live sales 

representative to become available, or to 

a hang-up because no sales 

representative becomes available.

Moreover, the prerecorded messages 

in the business model VMBC describes 

would disclose the seller’s identity in 

every call, so the seller would not be 

engaging in recorded message 

telemarketing under the cloak of 

anonymity. In fact, according to VMBC, 

because the messages in question would 

be delivered only to existing customers, 

the ‘‘strong incentive to protect the 

goodwill of customers’’ would serve as 

a check on the potential for abuse.8

VMBC points out that the Federal 

Communications Commission (‘‘FCC’’) 

telemarketing rules under the 

Telephone Consumer Protection Act 

(‘‘TCPA’’)—which largely parallel the 

Do Not Call and certain other of the 

TSR’s provisions—have since the early 

1990s permitted prerecorded message 

telemarketing to consumers with whom 

a seller has an established business 

relationship.9 In virtually all other 

circumstances, the TCPA rules broadly 

prohibit prerecorded message 

telemarketing.10

VMBC points out that the FTC, in its 

Report to Congress Pursuant to the Do 

Not Call Implementation Act 11

(‘‘DNCIA Report’’), discussed the 

difference between the TSR and the 

TCPA regulations with respect to the 

treatment of prerecorded message 

telemarketing in instances where the 

seller has an established business 

relationship with the called consumer. 

In its DNCIA Report, the Commission 

suggested that ‘‘the incentive to nurture 

established business relationships may 

provide an adequate restraint on the 

growth of recorded message 

telemarketing.’’12

A. The Importance of Preserving the 

Consumer’s Ability To Assert a Do Not 

Call Request When Receiving a 

Prerecorded Message Telemarketing 

Call 

It appears that ‘‘dead air’’ and ‘‘hangup’’ calls are unlikely to result from the 

business model VMBC describes. At the 

same time, the Commission recognizes 

that it may be more economical for 

companies to contact consumers via 

prerecorded messages rather than using 

live telemarketers, so the volume of 

commercial calls that consumers receive 

may increase. Accordingly, the 

Commission believes that, if allowed, 

telemarketing calls that deliver 

prerecorded messages to consumers 

with whom a seller has an established 

business relationship must preserve the 

ability of those consumers to assert their 

Do Not Call rights quickly, effectively, 

Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Proposed Rules 67289

13Section 310.4(d) requires the following prompt 

oral disclosures in outbound commercial 

telemarketing calls: (1) The identity of the seller; (2) 

that the purpose of the call is to sell goods or 

services; (3) the nature of the goods or services; and 

(4) that no purchase or payment is necessary to be 

able to win a prize or participate in a prize 

promotion if a prize promotion is offered and that 

any purchase or payment will not increase the 

person’s chances of winning. Section 310.4(e) 

requires the following oral disclosures in outbound 

charitable solicitation calls: (1) The identity of the 

charitable organization on behalf of which the 

request is being made; and (2) that the purpose of 

the call is to solicit a charitable contribution.

14See 47 CFR 64.1200(b)(2).

15Prior to adoption of the amended TSR, Article 

#38 of DMA’s ethical guidelines recommended 

allowing the phone to ring at least four times or for 

twelve seconds before disconnecting a call. 68 FR 

4580, 4644 (Jan. 29, 2003). Since adoption of the 

amended TSR, DMA has issued revised guidelines. 

Article #45 of these revised ethical guidelines now 

tracks the TSR in urging that ‘‘[m]arketers using 

automated dialing equipment should allow 15 

seconds or 4 rings before disconnecting an 

unanswered call.’’ http://www.the-dma.org/

guidelines/ethicalguidelines.shtml#tele.

and efficiently, so that consumers retain 

an effective right to decide whether to 

receive commercial calls, including 

prerecorded messages. Asserting an 

entity-specific Do Not Call request 

should be no more difficult in the case 

of prerecorded message telemarketing 

than it is in the case of telemarketing 

that uses live sales representatives. 

Although consumers who have placed 

their telephone numbers on the National 

Do Not Call Registry may receive 

telemarketing calls from sellers with 

whom they have an established business 

relationship, consumers may 

immediately request that their number 

be placed on the seller’s entity-specific 

do not call list. This request prevents 

future calls from that seller. Consumers 

should have the same ability to 

immediately assert a Do Not Call request 

when they receive a prerecorded 

telemarketing call pursuant to the 

established business relationship 

exemption. 

When a consumer is contacted by a 

live sales representative, the consumer 

may interrupt the sales pitch 

immediately to make a Do Not Call 

request, and the sales representative 

must take that request without delay. 

The Commission believes that, 

similarly, prerecorded messages must 

present an entity-specific Do Not Call 

option immediately after the prompt 

disclosures required by § 310.4(d) and 

(e) are delivered at the outset of the 

call.13 Nevertheless, the Commission 

seeks information and data about the 

costs and benefits of requiring that the 

disclosure of how to make a Do Not Call 

request be made at the outset of the call. 

The Commission also seeks information 

about alternative approaches that the 

Commission might use in this area and 

the costs and benefits of these 

alternatives.

Moreover, the Commission believes 

that the Do Not Call option should allow 

consumers to assert their Do Not Call 

rights during the message. Although 

FCC rules allow prerecorded messages 

to provide a toll-free number that 

consumers may call to make a Do Not 

Call request,14 this requires consumers 

to be prepared with pen and paper at 

the ready when they answer the phone, 

to take down the number, and to place 

a separate call in order to assert a Do 

Not Call request. This approach 

encumbers consumers’ assertions of 

company-specific Do Not Call rights.

The business model described in 

VMBC’s letter contemplates some 

prerecorded messages that would enable 

consumers to speak with a sales 

representative during the call by 

pressing a button on their telephone 

keypads. The Commission believes this 

type of interactive feature (pressing a 

button during the message to connect to 

a sales representative or an automated 

system to make a Do Not Call request) 

would be ideal in the established 

business relationship prerecorded 

message context as a means to protect 

consumers’ Do Not Call rights under the 

TSR. 

The Commission has, therefore, 

incorporated this feature into the 

proposed amendment to the call 

abandonment safe harbor provision that 

would permit telemarketing calls to 

consumers with whom a seller has an 

established business relationship to 

deliver a prerecorded message. 

Nevertheless, the Commission seeks 

information and data about the 

technical feasibility and costs of 

implementing such a feature in 

outbound telemarketing calls that 

deliver prerecorded messages to 

established customers. The Commission 

also seeks comment on alternative 

methods of preserving the consumer’s 

ability to assert a Do Not Call request 

when receiving a prerecorded message 

telemarketing call. 

B. The Commission’s Proposal To 

Amend the TSR’s Call Abandonment 

Safe Harbor Provision To Permit 

Prerecorded Message Telemarketing to 

Consumers With Whom a Seller Has an 

Established Business Relationship 

Because the harms that the call 

abandonment provisions were intended 

to remedy seem unlikely to arise from 

calls made pursuant to the business 

model at issue in VMBC’s petition, the 

Commission proposes to amend the TSR 

to add a new call abandonment safe 

harbor, as indicated below: 

(5) A seller or telemarketer initiating 

an outbound telephone call that delivers 

a prerecorded message to a person with 

whom the seller has an established 

business relationship will not be liable 

for violating 310.4(b)(1)(iv) if: 

(i) The seller or telemarketer, for each 

such telemarketing call placed, allows 

the telephone to ring for at least fifteen 

(15) seconds or four (4) rings before 

disconnecting an unanswered call; 

(ii) Within two (2) seconds after the 

person’s completed greeting, the seller 

or telemarketer promptly plays a 

prerecorded message that: 

(a) Presents an opportunity to assert 

an entity-specific Do Not Call request 

pursuant to § 310.4(b)(1)(iii)(A) at the 

outset of the message, with only the 

prompt disclosures required by 

§§ 310.4(d) or (e) preceding such 

opportunity; and

(b) Complies with all other 

requirements of this Rule and other 

applicable federal and state laws. 

Proposed § 310.4(b)(5) would create a 

new safe harbor for sellers and 

telemarketers calling consumers with 

whom the seller has an established 

business relationship for the purpose of 

delivering a prerecorded message. There 

are four criteria that a seller or 

telemarketer placing such calls would 

be required to meet to take advantage of 

the safe harbor and avoid liability for 

violating the TSR’s prohibition against 

call abandonment in § 310.4(b)(1)(iv). 

The first criterion is that the seller or 

telemarketer (1) must allow the 

telephone to ring for at least fifteen 

seconds or four rings before 

disconnecting an unanswered call. This 

‘‘ring time’’ element is identical to the 

analogous element of the existing safe 

harbor in § 310.4(b)(4)(ii). The ring time 

standard is intended to give consumers, 

including the elderly or infirm who may 

struggle to get to the telephone, a 

reasonable opportunity to answer 

telemarketing calls while preventing the 

undesirable result of consumers’ privacy 

being disrupted by ringing phones with 

no caller present on the other end of the 

line. The ring time standard is modeled 

on DMA’s ethical guidelines for its 

members.15

The second criterion of the proposed 

safe harbor is that the seller or 

telemarketer must play the prerecorded 

message within two seconds after the 

person’s completed greeting. The 

purpose of this element of the safe 

harbor is to minimize ‘‘dead air.’’ This 

element follows the analogous element 

in § 310.4(b)(4)(iii), allowing no more 

than two seconds of dead air. As noted, 

where there is no wait for a live sales 

representative because a prerecorded 

message is being delivered by a 

67290 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Proposed Rules 

16Footnote 7 of the amended TSR states: ‘‘This 

provision does not affect any seller’s or 

telemarketer’s obligation to comply with relevant 

state and federal laws, including but not limited to 

the TCPA, 47 U.S.C. 227, and 47 CFR part 64.1200.’’

The final element of the proposed new safe harbor 

incorporates the same concept without duplicating 

this footnote.

17 DMA petition at 1 (available at http://

www.ftc.gov/os/2004/10/041019dmapetition.pdf). 18 68 FR 4643 (Jan. 29, 2003) (footnotes omitted).

machine, telemarketers should have no 

problem meeting this standard. The 

Commission, however, specifically 

seeks information on whether the 

maximum amount of dead air should be 

less than two seconds in the new safe 

harbor, since the rationale for allowing 

two seconds may be inapposite to 

telemarketing that uses prerecorded 

messages rather than live sales 

representatives. The Commission also 

seeks information on the relative costs 

and benefits of a standard that would set 

the maximum amount of dead air at a 

level lower than two seconds. 

The third criterion of the proposed 

new safe harbor is self-explanatory. Its 

purpose is to ensure the same Do Not 

Call rights for consumers receiving 

telemarketing calls that deliver a 

prerecorded message that are enjoyed by 

consumers receiving telemarketing calls 

from live sales representatives. It 

requires that the prerecorded message 

present, ‘‘at the outset,’’ preceded only 

by the prompt oral disclosures required 

by the TSR, an opportunity for the 

called party to assert an entity-specific 

Do Not Call request pursuant to 

§ 310.4(b)(1)(iii)(A). 

Under the business model VMBC 

describes, some telemarketing 

campaigns would employ messages 

with an entity-specific Do Not Call 

mechanism, providing the called party 

with an opportunity to speak to a sales 

representative during the message by 

pressing a button on the telephone 

keypad. This approach allows 

consumers to exercise their Do Not Call 

rights in a manner that closely tracks 

consumers’ experience when called by a 

live sales representative, and would 

therefore satisfy the proposed safe 

harbor. The Commission seeks 

information about the costs to industry 

of requiring this mechanism in each 

message, and whether the costs are 

outweighed by the benefits to 

consumers who want to assert an entityspecific Do Not Call request 

immediately, without having to write 

down a toll-free number and call back. 

The fourth and final element of the 

proposed new safe harbor provision 

makes it explicit that it does not obviate 

or negate any other provision of the TSR 

or other federal or state laws. This 

proposed safe harbor provision would 

preserve consistency with the existing 

TSR safe harbor governing predictive 

dialers 16 and put sellers and 

telemarketers on notice that other 

applicable regulations may be stricter 

than what the Commission’s proposal 

provides.

C. FTC Enforcement Policy Pending 

Completion of This Proceeding 

In consideration of VMBC’s petition 

and similar requests from other parties, 

the Commission now believes that, 

under certain limited circumstances, 

enforcement of the call abandonment 

provision would serve only to deter 

conduct that does not cause the harms 

to consumers that prompted adoption of 

that provision. Therefore, the 

Commission has determined that, 

pending completion of this proceeding, 

the Commission will forbear from 

bringing any enforcement action for 

violation of the TSR’s call abandonment 

prohibition, 16 CFR 310.4(b)(1)(iv), 

against a seller or telemarketer that 

places telephone calls to deliver 

prerecorded telemarketing messages to 

consumers with whom the seller on 

whose behalf the telemarketing calls are 

placed has an established business 

relationship, as defined in the TSR, 

provided the seller or telemarketer 

conducts this activity in conformity 

with the terms of the proposed amended 

call abandonment safe harbor. In the 

event the record that develops in this 

proceeding tends to disprove the 

Commission’s tentative conclusions 

regarding prerecorded message 

telemarketing to consumers with whom 

the seller has an established business 

relationship, the Commission will 

announce a revised enforcement policy 

that will apply to subsequent 

enforcement actions. 

III. DMA’s Petition 

On May 18, 2004, DMA submitted a 

petition asking that the Commission 

‘‘revise its current method for 

calculating abandoned calls from a per 

day, per calling campaign measurement 

* * * to the per 30 day measurement 

adopted by the Federal Communications 

Commission (FCC) in its revisions to its 

telemarketing rules * * *.’’17 DMA 

states that ‘‘meeting the 3% benchmark 

under the FTC’s per day, per calling 

campaign standard presents a much 

greater compliance obstacle than 

meeting the FCC’s abandoned call 

standard. Marketers who use predictive 

dialing technology are having difficulty 

configuring their software to comply 

with the FTC’s per day, per calling 

campaign 3% standard.’’ DMA’s letter 

does not explain why this would be so. 

The letter, however, does quote a DMA 

member as follows:

The FTC requires the 3% abandon average 

per campaign per day, which is virtually 

impossible for vendors who run multiple 

campaigns each day. On a typical day, we 

may run more than 100 individual client 

campaigns. The system manages the 

efficiency as an average of all campaigns per 

day, so it is inevitable that certain logins 

would end the day at say, 3.1% and others 

at 2.9%, yet the overall average would still 

be 3% or less.

Nevertheless, DMA’s letter does not 

explain why a telemarketer’s system 

cannot dynamically maintain a steady 

level of no more than three percent call 

abandonment for all calls being placed. 

In fact, the paragraph quoted above 

suggests that telemarketers engage in 

precisely the practice the Commission 

was concerned about when it adopted 

the ‘‘per day, per campaign’’ method of 

calculating the maximum level of 

abandoned calls. The Commission 

stated:

The ‘‘per day per campaign’’ unit of 

measurement is consistent with DMA’s 

guidelines addressing its members’ use of 

predictive dialer equipment. Under this 

standard, a telemarketer running two or more 

calling campaigns simultaneously cannot 

offset a six percent abandonment rate on 

behalf of one seller with a zero percent 

abandonment rate for another seller in order 

to satisfy the Rule’s safe harbor provision. 

Each calling campaign must record a 

maximum abandonment rate of three percent 

per day to satisfy the safe harbor.18

DMA’s petition concedes that ‘‘the 

former DMA Guidelines for Ethical 

Business Practices (The DMA 

Guidelines) used the per day standard 

for the maximum number of abandoned 

calls per campaign that companies who 

use predictive dialing equipment must 

satisfy as a condition of membership in 

the DMA.’’ DMA points to the fact that 

the permissible abandonment rate in the 

DMA Guidelines was five percent, 

instead of the three percent level 

incorporated in the TSR’s call 

abandonment safe harbor. Nevertheless, 

DMA provides no facts to support the 

proposition that the per day per 

campaign method was feasible at a five 

percent level, but not at the three 

percent level. 

DMA mentions two other factors in 

support of its petition. The first factor is 

that the California Public Utilities 

Commission—whose three percent call 

abandonment rate the Commission cited 

in adopting the TSR’s call abandonment 

safe harbor—measures abandoned calls 

on a per 30-day basis, according to 

DMA. Second, DMA argues the FTC 

Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Proposed Rules 67291

19 Mainstream Mktg. Serv., Inc. v. FTC, 283 F. 

Supp. 2d 1151, 1170 (D. Colo. 2003) (‘‘[T]he court 

finds no basis to conclude that the FCC has 

exclusive jurisdiction to regulate the practice of 

abandoning calls’’); U.S. Security v. FTC, 282 F. 

Supp. 2d 1285, 1292 (W.D. Okla. 2003) (‘‘The 

[TSR’s] restriction on abandoned calls is a 

permissible regulation of this most (and 

undisputedly) invasive and abusive practice, and its 

promulgation, which is in no way hindered or 

hobbled by the FCC’s grant of authority, has carried 

into effect congressional intent as expressed by the 

[Telemarketing Act]’’); Nat’l. Fed’n. of the Blind v. 

FTC, 303 F. Supp. 2d 707 at 716 (D. Md. 2004).

20 DNCIA Report, p. 31.

21Commission Rule 4.2(d), 16 CFR 4.2(d). The 

comment must be accompanied by an explicit 

request for confidential treatment, including the 

factual and legal basis for the request, and must 

identify the specific portions of the comment to be 

withheld from the public record.

should defer to the FCC’s determination 

on how the permissible call 

abandonment rate should be calculated, 

because the issue ‘‘lies closer to the core 

expertise of the FCC than of the FTC.’’

The Commission does not believe these 

factors are sufficient to require the 

requested change in the TSR. It is not 

impossible for entities subject to both 

the TSR and either the FCC’s TCPA 

rules or the California Public Utilities 

Commission’s rules to comply with 

both; compliance with the FTC’s more 

precise standard would constitute 

acceptable compliance with either or 

both of those other sets of regulations. 

Moreover, recent court decisions 

controvert DMA’s argument that the 

FTC’s expertise or legal authority 

regarding the acceptable level of call 

abandonment is inferior to that of the 

FCC.19

DMA provides no information that 

would tend to counter the concern 

about the shortcomings of a ‘‘per 30-

day’’ standard that the Commission set 

forth at length in its DNCIA Report.20

The concern is that the FCC’s approach 

to measuring the three percent call 

abandonment rate over a 30-day period 

could enable telemarketers to target call 

abandonments at certain less valued 

groups of consumers, resulting in their 

receipt of more than their share of 

abandoned calls. Under such a scenario, 

predictive dialers could be set to 

abandon calls at a higher rate to one 

subset of the population and a lower 

rate to another subset of the population. 

For example, a telemarketer could offset 

a high abandonment rate in a multi-day 

cold-call campaign to persons who 

never previously purchased from the 

seller, and make up the difference by 

abandoning no calls in a subsequent 

campaign targeting its most valued 

existing customers. Telemarketers could 

also offset a high abandonment rate in 

low income zip codes and make up the 

difference by abandoning no calls in 

affluent ones. The FTC’s per day per 

campaign measure reduces the potential 

for concentrating abuse by ensuring an 

even distribution of abandoned calls to 

all segments of the public, regardless of 

their purchasing history or demographic 

characteristics. Given the detrimental 

impact of call abandonment on 

consumers, the FTC does not believe 

that variations in telemarketing 

campaigns (such as calling times, 

number of operators available, and the 

number of telephone lines used by the 

call centers) justify allowing call 

abandonment to fall disproportionately 

on particular groups of consumers.

Therefore, the Commission believes 

that DMA has not provided an adequate 

factual basis that would compel 

modification of the TSR’s method for 

measuring the maximum allowable 

abandonment rate. Nonetheless, the 

Commission is receptive to any factual 

information that would establish that 

such a change is warranted, and 

encourages commenters to include such 

information in their submissions. In 

particular, the Commission is interested 

in any elaboration on the problems 

telemarketers who are running multiple 

campaigns at the same time face in 

attempting to comply with the current 

requirement. The Commission is also 

interested in any information 

demonstrating that callers who make a 

relatively small number of calls per day 

may be differentially disadvantaged by 

the current requirements. Finally, the 

Commission seeks information and data 

demonstrating that it need not be 

concerned that, if additional flexibility 

were provided, telemarketers would 

intentionally set the abandonment rates 

above 3 percent on some campaigns or 

on calls directed to certain consumers 

and use lower rates of abandonment on 

other campaigns or calls to satisfy the 

overall 3 percent requirement. 

IV. Invitation To Comment 

All persons are hereby given notice of 

the opportunity to submit written data, 

views, facts, and arguments addressing 

the issues raised by this Notice. Written 

comments must be received on or before 

January 10, 2005. Comments should 

refer to: ‘‘Prerecorded Message EBR 

Telemarketing, Project No. R411001’’ to 

facilitate the organization of comments. 

A comment filed in paper form should 

include this reference both in the text 

and on the envelope, and should be 

mailed or delivered to the following 

address: Federal Trade Commission/

Office of the Secretary, Room H–159 

(Annex K), 600 Pennsylvania Avenue, 

NW., Washington, DC 20580. If the 

comment contains any material for 

which confidential treatment is 

requested, it must be filed in paper 

(rather than electronic) form, and the 

first page of the document must be 

clearly labeled ‘‘Confidential.’’ 21 The 

FTC is requesting that any comment 

filed in paper form be sent by courier or 

overnight service, if possible, because 

U.S. postal mail in the Washington area 

and at the Commission is subject to 

delay due to heightened security 

precautions.

To ensure that the Commission 

considers an electronic comment, you 

must file it on the Web-based form at 

the https://secure.commentworks.com/

ftc-tsr Weblink. You may also visit 

http://www.regulations.gov to read this 

proposed Rule, and may file an 

electronic comment through that Web 

site. The Commission will consider all 

comments that regulations.gov forwards 

to it. 

The FTC Act and other laws the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives, 

whether filed in paper or electronic 

form. Comments received will be 

available to the public on the FTC Web 

site, to the extent practicable, at http:/

/www.ftc.gov. As a matter of discretion, 

the FTC makes every effort to remove 

home contact information for 

individuals from the public comments it 

receives before placing those comments 

on the FTC Web site. More information, 

including routine uses permitted by the 

Privacy Act, may be found in the FTC’s 

privacy policy, at http://www.ftc.gov/

ftc/privacy.htm. 

V. Communications by Outside Parties 

to Commissioners or Their Advisors 

Written communications and 

summaries or transcripts of oral 

communications respecting the merits 

of this proceeding from any outside 

party to any Commissioner or 

Commissioner’s advisor will be placed 

on the public record. See 16 CFR 

1.26(b)(5). 

VI. Paperwork Reduction Act 

The information collection 

requirements contained in the TSR were 

reviewed by OMB under the Paperwork 

Reduction Act and cleared on July 24, 

2003, under OMB Control Number 

3084–0097. The proposed rule 

amendment, as discussed above, 

provides a safe harbor from the TSR’s 

prohibition on call abandonment for 

sellers and telemarketers that call only 

67292 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Proposed Rules 

22These numbers represent the size standards for 

most retail and service industries ($6 million total 

receipts) and manufacturing industries (500 

employees). A list of the SBA’s size standards for 

all industries can be found at http://www.sba.gov/

size/summary-whatis.html.

23See 68 FR 4580, 4667 (Jan. 29, 2003) (noting 

that Census data on small entities conducting 

telemarketing does not distinguish between those 

entities that conduct exempt calling, such as survey 

calling, those that receive inbound calls, and those 

that conduct outbound calling campaigns. 

Moreover, sellers who act as their own 

telemarketers are not accounted for in the Census 

data.).

24See 68 FR 4580, 4667 (Jan. 29, 2003): 68 FR 

45134, 45143 (July 31, 2003) (noting, in the final 

amended rules, that comment was requested, but 

not received, regarding the number of small entities 

subject to the National Do Not Call Registry 

provisions of the amended TSR).

consumers with whom the seller has an 

established business relationship, as 

defined in the Rule. Thus, the proposed 

rule amendment does not impose any 

new, or affect any existing, record 

submission, recordkeeping, or public 

disclosure requirement that would be 

subject to review and approval by OMB 

pursuant to the Paperwork Reduction 

Act, 44 U.S.C. 3501–3520. 

VII. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

(‘‘RFA’’), 5 U.S.C. 601–612, requires an 

agency to provide an Initial Regulatory 

Flexibility Analysis (‘‘IRFA’’) with a 

proposed rule and a Final Regulatory 

Flexibility Analysis (‘‘FRFA’’) with the 

final rule, if any, unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. See 

5 U.S.C. 603–605.

The Commission has determined that 

it is appropriate to publish an IRFA in 

order to inquire into the impact of the 

proposed rule on small entities. 

Therefore, the Commission has prepared 

the following analysis. 

A. Reasons for the Proposed Rule 

The proposed modification of the 

TSR, discussed above, responds to 

requests from the telemarketing industry 

to provide a safe harbor to allow sellers 

and telemarketers calling persons with 

whom the seller has an established 

business relationship to deliver a 

prerecorded message. 

B. Statement of Objectives and Legal 

Basis 

The objectives of the proposed rule 

are discussed above. The legal basis for 

the proposed rule is the Telemarketing 

and Consumer Fraud and Abuse 

Prevention Act, 15 U.S.C. 6102. 

C. Description of and, Where Feasible, 

an Estimate of the Number of Small 

Entities to Which the Proposed Rule 

Will Apply 

This proposed rule will impact sellers 

that make interstate telephone calls to 

consumers (outbound calls) with whom 

the seller has an established business 

relationship for the purpose of 

delivering a prerecorded message in an 

attempt to sell their products or 

services. Also affected may be firms that 

provide prerecorded message 

telemarketing services to others on a 

contract basis. For the majority of 

entities subject to the proposed rule, a 

small business is defined by the Small 

Business Administration as one whose 

average annual receipts do not exceed 

$6 million or that has fewer than 500 

employees.22

In the proceedings to amend the TSR 

in 2002, the Commission sought public 

comment and information on the 

number of small business sellers and 

telemarketers that would be impacted 

by those amendments, which were 

broader in scope than those at issue in 

the instant proceeding. In its requests, 

the Commission noted the lack of 

publicly available data regarding the 

number of small entities that might be 

impacted by the proposed Rule.23 The 

Commission received no information in 

response to its requests.24

The requests for clarification 

regarding the operation of the 

abandoned call provision of the TSR 

that have led to this rulemaking 

proceeding provide no data regarding 

the number of small entities that may be 

affected by the outcome of the 

proceeding. Based on the absence of 

available data in this and related 

proceedings, the Commission believes 

that a precise estimate of the number of 

small entities that fall under the 

proposed rule is not currently feasible, 

and specifically requests information or 

comment on this issue.

D. Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the 

Proposed Rule 

The proposed rule does not impose 

any new, or affect any existing, 

reporting, disclosure, or specific 

recordkeeping requirements within the 

meaning of the Paperwork Reduction 

Act. The Commission does not believe 

that modifying the Rule to create a safe 

harbor that would allow sellers and 

telemarketers calling to deliver a 

prerecorded message to persons with 

whom they have an established business 

relationship will create a significant 

burden on sellers or telemarketers that 

have already established systems to 

comply with the existing TSR. The 

Commission also does not believe that 

this modification of the Rule will 

increase or otherwise modify any 

existing compliance costs, and may in 

fact reduce them for small entities that 

are able to take advantage of the safe 

harbor. 

E. Identification of Other Duplicative, 

Overlapping, or Conflicting Federal 

Rules 

The FTC has not identified any other 

federal statutes, rules, or policies that 

would conflict with the proposed safe 

harbor that would allow telemarketing 

calls that deliver a prerecorded message 

to persons with whom the seller has an 

established business relationship. The 

FCC rules pursuant to the TCPA contain 

a safe harbor that allows telemarketing 

calls that deliver a prerecorded message 

to persons with whom the seller has an 

established business relationship. The 

FTC’s proposed modification would 

harmonize the TSR to the FCC’s TCPA 

rules on this issue. With respect to the 

issue of calculating callers’

abandonment rate on a ‘‘per day’’ or 

‘‘per 30-day’’ basis, the FTC does not 

propose to modify its Rule to make it 

consistent with the relevant FCC TCPA 

rule. As explained in Section III above, 

compliance with the FTC’s more precise 

standard would constitute acceptable 

compliance with the FCC rule, so there 

is no conflict between these rules. 

F. Discussion of Significant Alternatives 

to the Proposed Rule That Would 

Accomplish the Stated Objectives and 

Minimize Any Significant Economic 

Impact of the Proposed Rule on Small 

Entities 

The proposed safe harbor would 

allow telemarketing calls that deliver a 

prerecorded message to persons with 

whom the seller has an established 

business relationship, but require that 

the prerecorded message include an 

opportunity during the call for the 

recipient of the call to assert an entityspecific Do Not Call request. Other 

regulatory options under consideration 

include requiring instead that the 

prerecorded message include a toll-free 

number that call recipients could 

contact to assert an entity-specific Do 

Not Call request. Also, the proposed safe 

harbor requires that the prerecorded 

message begin within two seconds after 

the recipient of the call completes his or 

her greeting. Other regulatory options 

under consideration include requiring 

that the prerecorded message begin 

sooner than two seconds after the 

recipient of the call completes his or her 

greeting. The proposed safe harbor is 

intended to be available to all entities 

subject to the Rule, and it does not 

Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Proposed Rules 67293

appear that a delayed effective date for 

small entities or other alternatives to the 

current proposal would either be 

appropriate or necessarily result in any 

further reduction in the compliance 

burdens of the Rule for small entities. 

The Commission nonetheless seeks 

comments and information on what 

other alternative formulations, if any, of 

the proposed safe harbor might further 

minimize compliance burdens for small 

entities, without compromising the 

intent and purpose of the Rule to 

prevent abusive telemarketing practices.

VIII. Specific Issues for Comment 

The Commission seeks comment on 

various aspects of the proposed 

amendment to the call abandonment 

safe harbor provision of the TSR. 

Without limiting the scope of issues on 

which it seeks comment, the 

Commission is particularly interested in 

receiving comments on the questions 

that follow. In responding to these 

questions, include detailed, factual 

supporting information whenever 

possible. 

A. General Questions for Comment 

Please provide comment, including 

relevant data, statistics, consumer 

complaint information, or any other 

evidence, on (a) the proposed safe 

harbor to allow telemarketing calls that 

deliver a prerecorded message to 

persons with whom the seller has an 

established business relationship, and 

(b) DMA’s request to substitute a ‘‘per 

30-day period’’ for the current ‘‘per day 

per campaign’’ method of measuring the 

maximum allowable rate of call 

abandonment under the existing safe 

harbor in 16 CFR 310.4(b)(4)(i). Please 

include answers to the following 

questions: 

1. What is the effect (including any 

benefits and costs), if any, on 

consumers? 

2. What is the impact (including any 

benefits and costs), if any, on individual 

firms that must comply with the Rule? 

3. What is the impact (including any 

benefits and costs), if any, on industry, 

including those who may be affected by 

these proposals but not obligated to 

comply with the Rule? 

4. What changes, if any, should be 

made to the proposed Rule to minimize 

any cost to industry, individual firms 

that must comply with the Rule, or 

consumers? 

5. How would each suggested change 

affect the benefits that might be 

provided by the proposed Rule to 

industry, individual firms that must 

comply with the Rule, or consumers? 

6. How would the proposed Rule 

affect small business entities with 

respect to costs, profitability, 

competitiveness, and employment? 

B. Questions on Proposed Specific 

Provisions 

In response to each of the following 

questions, please provide: (1) Detailed 

comment, including data, statistics, 

consumer complaint information, and 

other evidence, regarding the issue 

referred to in the question; (2) comment 

as to whether the proposed changes do 

or do not provide an adequate solution 

to the problems they were intended to 

address, and why; and (3) suggestions 

for additional changes that might better 

maximize consumer protections or 

minimize the burden on industry. 

1. Are ‘‘hang-up’’ calls and ‘‘dead 

air’’—the two harms that prompted 

adoption of the current call 

abandonment provisions—likely to arise 

from telemarketing calls that deliver a 

prerecorded message to consumers with 

whom the seller has an established 

business relationship? Are there other 

consumer harms that may result from 

such calls, and if so, what are they? 

Could the proposed safe harbor be 

crafted to eliminate such harms, and if 

so, how? If not, why not? 

2. What are the costs and benefits to 

consumers of receiving telemarketing 

calls from companies with whom they 

have an established business 

relationship via prerecorded messages 

as opposed to live sales representatives? 

Is there any data as to how many 

consumers choose to act on the 

telemarketing calls that they receive via 

prerecorded messages? Is it likely that 

consumers will receive more 

telemarketing calls under this proposed 

new safe harbor in § 310.4(b)(5)? Is it 

likely that consumers will receive more 

unwanted telemarketing calls under this 

proposed new safe harbor? 

3. What are the costs and benefits of 

obtaining consumers’ prior consent 

before contacting them with 

prerecorded telemarketing messages? 

4. Is there any data as to how many 

consumers choose to opt out of 

prerecorded telemarketing calls 

currently? What mechanisms are used to 

allow consumers to opt out of 

prerecorded telemarketing messages? At 

what point in the course of the message 

are consumers given the opportunity to 

opt out? Does the industry follow a 

standard practice as to when in the call 

a consumer must be given the 

opportunity to opt out? 

5. How much, if any, ‘‘dead air’’

should be permitted between the 

completion of the answering consumer’s 

greeting and the beginning of the 

prerecorded message in the proposed 

new call abandonment safe harbor for 

telemarketing calls delivering a 

prerecorded message to consumers with 

whom the seller has an established 

business relationship? Because using 

prerecorded messages obviates the need 

to wait for an available live sales 

representative, is there any reason that 

the prerecorded message could not start 

less than two seconds after completion 

of the answering consumer’s greeting? 

What would be the costs and benefits of 

starting the prerecorded message less 

than two seconds after completion of 

the answering consumer’s greeting? 

6. What would be the costs to 

industry of requiring that each 

prerecorded message include a 

mechanism that would enable the 

consumer receiving the call to assert a 

Do Not Call request during the call, for 

example, by pressing a number on the 

keypad, or by stating aloud the wish not 

to receive future calls? Specifically, 

what would be the incremental expense 

of such a requirement? What would be 

the overall costs and benefits to 

consumers of such a requirement? What 

would be the comparative costs and 

benefits to industry and consumers of 

providing a toll-free number in a 

prerecorded message that call recipients 

could call to assert a Do Not Call 

request? Are there other alternative 

means of preserving the consumer’s 

ability to assert a Do Not Call request 

that would strike a better balance of 

costs and benefits than requiring an 

opportunity during the prerecorded 

message to assert a Do Not Call request? 

7. Is it appropriate that the proposed 

new safe harbor in § 310.4(b)(5) 

specifies that the seller or telemarketer 

must use a prerecorded message that 

presents an opportunity to assert an 

entity-specific Do Not Call request at the 

outset of the message, with only the 

prompt disclosures required by 

§ 310.4(d) or (e) preceding it? Why or 

why not? What are the costs and 

benefits of this approach? In the 

alternative, would it be better to specify 

that the information about how to assert 

an entity-specific Do Not Call request be 

given within a certain length of time 

after the beginning of the pre-recorded 

message? If so, how much time should 

be allowed before the information must 

be given? What are the costs and 

benefits of this approach? 

8. Does the proposed new safe harbor 

in § 310.4(b)(5) provide industry with 

sufficient guidance as to the 

circumstances under which prerecorded 

message telemarketing calls would be 

permissible? If not, how could the 

provision be crafted to accomplish that 

purpose more effectively? 

9. Would the proposed new safe 

harbor in § 310.4(b)(5) complicate 

67294 Federal Register / Vol. 69, No. 221 / Wednesday, November 17, 2004 / Proposed Rules 

8This provision does not affect any seller’s or 

telemarketer’s obligation to comply with relevant 

state and federal laws, including but not limited to 

the TCPA, 47 U.S.C. 227, and 47 CFR part 64.1200.

enforcement efforts against a seller or 

telemarketer who violates the TSR and 

claims falsely that it has an established 

business relationship with called 

consumers?

10. Is it appropriate that the proposed 

new safe harbor in § 310.4(b)(5) 

specifies that the seller or telemarketer 

must allow the telephone to ring for at 

least fifteen seconds or four rings before 

disconnecting an unanswered call? If 

not, is there some other more 

appropriate element that should be 

included in the safe harbor to preclude 

the problem of premature ‘‘hang-ups’’

before consumers can reach the 

telephone? 11. Is it appropriate that the proposed 

new safe harbor in § 310.4(b)(5) 

specifies that the seller or telemarketer 

must comply with all other 

requirements of the TSR and other 

applicable federal and state laws? If not, 

why not? 12. Is the burden on telemarketers in 

meeting the three percent maximum 

abandoned call level per day per 

telemarketing campaign outweighed by 

benefits to consumers in having call 

abandonment distributed evenly at a 

uniformly low level to all called 

consumers? What, if any, characteristics 

of the telemarketing equipment 

currently in use might make compliance 

with the ‘‘per day per campaign’’

standard problematic? What, if any, 

costs would result from having the 

equipment adjusted or replaced to 

eliminate problems? 13. According to DMA, ‘‘marketers 

who use predictive dialing technology 

are having difficulty configuring their 

software to comply with the FTC’s per 

day, per calling campaign 3% 

[maximum abandoned call] standard.’’

Is this statement accurate? If so, why? 

And if so, how widespread is this 

difficulty? If this statement is not 

accurate, why not? Were similar 

problems encountered in meeting the 

DMA’s former guideline of no more than 

five percent of calls abandoned per day 

per telemarketing campaign? Why or 

why not? 14. If the three percent maximum call 

abandonment rate were measured over a 

30-day period, instead of per day per 

telemarketing campaign, what effect, if 

any, would this change have on actual 

call abandonment rates? What would 

prevent a telemarketer from targeting 

call abandonments at certain less valued 

groups of consumers, resulting in their 

receipt of more than their share of 

abandoned calls? What would prevent 

setting predictive dialers to abandon 

calls at a higher rate to one subset of the 

population and a lower rate to another 

subset of the population? Is it 

appropriate that some segments of the 

population should be subjected to a 

higher rate of call abandonment than 

other segments of the population? If so, 

why? 15. Can telemarketing equipment be 

programmed to dynamically maintain a 

steady level of no more than three 

percent call abandonment for all calls 

being placed? What, specifically, is the 

equipment that has that capacity to be 

programmed in such a manner, if any? 

What are the costs associated with this 

equipment?

IX. Proposed Rule

List of Subjects in 16 CFR Part 310 

Telemarketing, Trade practices.

Accordingly, the Commission 

proposes to amend title 16, Code of 

Federal Regulations, as follows:

PART 310—TELEMARKETING SALES 

RULE 

1. The authority citation for part 310 

continues to read as follows:

Authority: 15 U.S.C. 6101–6108.

2. Amend § 310.4 by adding a new 

paragraph (b)(5).

§ 310.4 Abusive telemarketing acts or 

practices. 

* * * 

(b) * * * 

(5) A seller or telemarketer initiating 

an outbound telephone call that delivers 

a prerecorded message to a person with 

whom the seller has an established 

business relationship will not be liable 

for violating § 310.4(b)(1)(iv) if: 

(i) The seller or telemarketer, for each 

such telemarketing call placed, allows 

the telephone to ring for at least fifteen 

(15) seconds or four (4) rings before 

disconnecting an unanswered call; (ii) Within two (2) seconds after the 

person’s completed greeting, the seller 

or telemarketer promptly plays a 

prerecorded message that: (A) Presents an opportunity to assert 

an entity-specific Do Not Call request 

pursuant to § 310.4(b)(1)(iii)(A) at the 

outset of the message, with only the 

prompt disclosures required by 

§ 310.4(d) or (e) preceding such 

opportunity; and (B) Complies with all other 

requirements of this part and other 

applicable federal and state laws.8 ***

By direction of the Commission. 

Donald S. Clark, 

Secretary.

[FR Doc. 04–25470 Filed 11–16–04; 8:45 am] 

BILLING CODE 675–01–P

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[CGD08–04–042] 

RIN 1625–AA09 

Drawbridge Operation Regulation; Gulf 

Intracoastal Waterway, Cypremort, LA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Coast Guard proposes to 

change the regulation governing the 

operation of the State Route 319 

(Louisa) bridge across the Gulf 

Intracoastal Waterway, mile 134.0 west 

of Harvey Lock, near Cypremort, 

Louisiana. A new high-level, double-leaf 

bascule bridge that will require limited 

openings is replacing the low-level 

swing bridge across the waterway. This 

proposed regulation change would 

remove the regulation governing the tobe-removed bridge and replace it with a 

regulation for the operation of the new 

bascule bridge.

DATES: Comments and related material 

must reach the Coast Guard on or before 

January 18, 2005.

ADDRESSES: You may mail comments 

and related material to Commander 

(obc), Eighth Coast Guard District, 500 

Poydras Street, New Orleans, Louisiana 

70130–3310. The Commander, Eighth 

Coast Guard District, Bridge 

Administration Branch maintains the 

public docket for this rulemaking. 

Comments and material received from 

the public, as well as documents 

indicated in this preamble as being 

available in the docket, will become part 

of this docket and will be available for 

inspection or copying at the Bridge 

Administration office between 7 a.m. 

and 3 p.m., Monday through Friday, 

except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

David Frank, Bridge Administration 

Branch, telephone 504–589–2965.

SUPPLEMENTARY INFORMATION: 

Request for Comments 

We encourage you to participate in 

this rulemaking by submitting 

comments and related material. If you 

do so, please include your name and 

address, identify the docket number for 

this rulemaking (CGD08–04–042),