UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580

Division of Marketing Practices

February 4, 2010 

Joan Mullen

Creative Compliance Consulting

9505 Golf Course Lane

Elk Grove, CA 95758

Request for Advisory Opinion:

Transfer of Consumer-Initiated Call to Prerecorded Message

Dear Ms. Mullen:

You have requested an informal staff opinion on the applicability of the recent

amendments to the Telemarketing Sales Rule (“TSR”) to calls that are transferred to a

prerecorded solicitation. The amendments at issue impose new restrictions on the use of

prerecorded messages in telemarketing. Specifically, these amendments, as of September 1,

2009, generally prohibit initiating an outbound telephone call that delivers a prerecorded

message to induce the purchase of any good or service 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. 16 C.F.R. § 310.4(b)(1)(v)

(2009); 73 Fed. Reg. 15204 (Aug. 29, 2008). Your letter asks whether this amendment prohibits

use of a prerecorded message in the follow scenario:

A consumer calls in to [sic] a call center with a customer service need or to

purchase something. At the conclusion of the primary purpose of the call the

consumer is advised by a live agent to “hold the line[”] while the call is

transferred to a rewards center. The call is then transferred to an automated sales

line and one or more [prerecorded] “pitches” are made. The consumer has no

opportunity to give permission for the prerecorded pitches.

The staff of the Federal Trade Commission has concluded that 16 C.F.R.

§ 310.4(b)(1)(v)(A) does not apply to the delivery of prerecorded messages in the manner

described in your letter. The provisions on prerecorded messages in 16 C.F.R. § 310.4(b)(1)(v)

restrict initiating an “outbound telephone call” and such a call is defined as “a telephone call

initiated by a telemarketer to induce the purchase of goods or services or to solicit a charitable

contribution.” Id. § 310.2(u) (italics added). In the circumstances described in your letter, the

customer initiates the telephone call and the transfer of the call that is initiated by the call center

is a continuation of the same telephone call. Because call was initiated by the consumer, and not

by a seller or telemarketer, 16 C.F.R. § 310.4(b)(1)(v)(A) does not apply to the call.
Joan Mullen 

Creative Compliance Consulting 

Request for Advisory Opinion 

January 29,2010 

Page 2 

We note that in 2002, the Commission proposed modifying the definition of "outbound 

telephone call" in the Telemarketing Sales Rule so that the definition would include situations in 

which a telephone call is "transferred to a telemarketer other than the original telemarketer." 67 

Fed. Reg. 4491, 4500, 4541 (2002). The Commission decided not to expand the Rule's 

definition of "outbound telephone call" by adding this language. 68 Fed. Reg. 4579, 4594-95 

(2003). After considering public comments on the proposal, the Commission observed that 

expanding the definition in this manner would have unintended and undesirable consequences 

because it would make upselling transactions subject to all the provisions of the Telemarketing 

Sales Rule relating to outbound calls, including the calling time restrictions and national "donot-call" provisions. Id. In the same document, the Commission explained that the definition of 

"outbound telephone call" includes situations in which the telemarketer disconnects or 

"abandons" a call answered by a person without delivering a sales pitch. "A telemarketer 

initiates a telephone call," the Commission observed, "by causing the called consumer's 

telephone to ring." 68 Fed. Reg. at 4643. These statements in the Statement of Basis and 

Purpose accompanying the Commission's adoption of the current definition of "outbound 

telephone call" reinforce our conclusion that the situation described in your letter - in which the 

telemarketer does not cause the consumer's telephone to ring but transfers a call initiated by the 

consumer after the primary purpose of the call has been completed - is not an "outbound 

telephone call" and, therefore, is not subject to 16 C.F.R. § 31 O.4(b)(1 )(v). 

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

your letter and applies only to the practice described in your letter. Moreover, this opinion only 

addresses the issue that you presented, namely the applicability of 16 C.F.R. § 31O.4(b )(1 )(v). 

Other provisions ofthe Telemarketing Sales Rule that are not limited to outbound telephone 

calls may apply to the situation that you describe. In particular, provisions of the TSR 

concerning "upselling" would apply to the telephone call that you describe, even though the call 

is not an outbound telephone call. 16 C.F .R. § 31 0.3( d). 

In addition, please be advised 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. Staff opinions concerning the TSR are routinely posted 

on the FTC website at http://www.ftc.gov/bcp/telemarketing/staffopinions.shtm. 

~~lY~ 

Lois Greisman 

Associate Director 

Division of Marketing Practices