UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580

Federal Trade Commission

Division of Marketing Practices

September 11, 2009

Mr. Michael Bills, CEO

Call Assistant, LLC

1925 West Indiana Avenue

Salt Lake City, Utah 84104

Dear Mr. Bills:

You have requested an informal staff opinion as to the applicability to 2008 amendments

to the Telemarketing Sales Rule (“TSR”) to a particular technology used by CallAssistant, L.C.

(“CallAssistant”). The amendments at issue impose new restrictions on the use of prerecorded

messages in telemarketing. 16 C.F.R. § 310.4(b)(1)(v); 73 Fed. Reg. 15204 (Aug. 29, 2008). 

Specifically, these amendments require, as of December 1, 2008, that any outbound

telemarketing call that delivers a prerecorded message include: (1) if the call could be answered

in person by a consumer, an automated interactive voice and/or keypress-activated opt-out

mechanism that the call recipient can use at any time during the message to assert a Do Not Call

request pursuant to § 310.4(b)(1)(iii)(A); and (2) if the call could be answered by an answering

machine or voicemail service, a toll-free telephone number that the call recipient can use to

assert a Do Not Call request pursuant to § 310.4(b)(1)(iii)(A). Additionally, as of September 1,

2009, the amendments prohibit any outbound telemarketing call that delivers a prerecorded

message unless the seller has obtained from the recipient of the call an express agreement, in

writing, that evidences the willingness of the recipient of the call to receive calls that deliver

prerecorded messages by or on behalf of that seller and includes such person’s telephone number

and signature. 

As described in your letter, CallAssistant uses technology that enables its calling agents

to interact with the recipient of a call using his or her own voice or by substituting appropriate

audio recording of a response. According to your letter, when used to place outbound

telemarketing calls, this technology works as follows:

A live agent using the System places a call to a consumer and hears the consumer

greeting. In response to the greeting, the agent may elect to speak to the call

recipient using his or her voice, or may press a button to play an appropriate

recorded script segment. After the agent’s response, the agent listens to the

consumer customer’s reply. After listening to the consumer’s reply, the live

agent again chooses whether to speak to the call recipient in his or her own voice,

or another recording. At all times, even during the playing of any recorded

segment, the agent retains the power to interrupt any recorded message to listen to

the consumer and respond appropriately. 
Mr. Michael Bills

Page 2 of 3 Pages

 In adopting the 2008 amendments, the Commission recognized that in the future prerecorded 1

message might eliminate the objections that prompted the adoption of the these rules and justify

exemptions permitting interactive prerecorded messages:

 [T]he Commission notes that it is aware that the technology used in making prerecorded

messages interactive is rapidly evolving, and that affordable technological advances may

eventually permit the widespread use of interactive messages that are essentially

indistinguishable from conversing with a human being. Accordingly, nothing in this

notice should be interpreted to foreclose the possibility of petitions seeking further

amendment of the TSR or exemption from the provisions adopted here. 

73 Fed. Reg. 51180 (Aug. 29, 2008).

Furthermore, according to your description, “live agents hear every word spoken by the call

recipient, and determine what is said” in response. A single agent always stays with a call from

beginning to end.

You seek an opinion as to whether the amended TSR provisions on the use of

prerecorded messages in telemarketing apply to CallAssistant’s calls that employ the technology

summarized above. Based on the description of the technology included in your letter, the staff

of the Federal Trade Commission has concluded that the 2008 TSR amendments cited above do

not prohibit telemarketing calls using this technology if the calls that otherwise comply with the

TSR and other applicable law. The 2008 amendments at 16 C.F.R. § 310.4(b)(1)(v) prohibit

calls that deliver a prerecorded message and do not allow interaction with call recipients in a

manner virtually indistinguishable from calls conducted by live operators. Unlike the

technology that you describe, the delivery of prerecorded messages in such calls does not

involve a live agent who controls the content and continuity of what is said to respond to

concerns, questions, comments – or demands – of the call recipient. 

In adopting the 2008 TSR amendments, the Commission noted that the intrusion of a

telemarketing call on a consumer’s right to privacy “may be exacerbated immeasurably when

there is no human being on the other end of the line.” 73 Fed. Reg. at 51180. The Commission

observed that special restrictions on prerecorded telemarketing messages were warranted

because they “convert the telephone from an instrument for two-way conversations into a oneway device for transmitting advertisements.” Id. Consequently, in Staff’s view, the concerns 1

about prerecorded messages addressed in the 2008 TSR amendments do not apply to the calls

described above, in which a live human being continuously interacts with the recipient of a call

in a two-way conversation, but is permitted to respond by selecting recorded statements.

Nevertheless, the use of such technology in a campaign to induce the sales of goods or

services, or charitable donations is “telemarketing” under the Telemarketing and Consumer

Fraud and Abuse Prevention Act, 15 U.S.C. § 6106(4), and therefore must comply with the

Rule’s other requirements and prohibitions. In particular, the technology must connect an

outbound telephone call to a live agent within two seconds of the call recipient’s completed

greeting. 16 C.F.R. § 310.4(b)(1)(iv). The agents making calls using this technology must
Mr. Michael Bills 

Page 3 of 3 Pages 

disclose the purpose of the call, the identity of the seller, make other required disclosures, and 

comply with other TSR provisions preventing deceptive and abusive conduct. Id. §§ 310.3 and 

310.4. 

Please be advised that this opinion is based exclusively on all the information furnished 

in your request. This opinion applies only to the extent that actual company practices conform to 

the material submitted for review. Please be advised further that the views expressed in this 

letter are those of the FTC staff. They have not been reviewed, approved, or adopted by the 

Commission, and they are not binding upon the Commission. However, they do reflect the 

opinions of the staff members charged with enforcement of the TSR. 

S:C/:lY, 

~~{:- Lois Greisman 

Associate Director 

\ 

Division of Marketing Practices