UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580

Division of Marketing Practices

February 4, 2010 

Jean L. Kiddoo

Bingham McCutchen LLP

2020 K Street, N.W.

Washington, DC 20006-1806

Request for Advisory Opinion:

Prerecorded Message to Customers Regarding 

Availability of Free Services for a Limited Time Period

Dear Ms. Kiddoo:

You have requested an informal staff opinion that telephone calls which deliver

prerecorded messages to existing customers of your client, RCN, a cable and open video services

provider, do not meet the definition of “telemarketing” in the Telemarketing Sales Rule, 16

C.F.R. § 310.2(cc). The telephone calls at issue deliver prerecorded messages that notify RCN

customers of the existence and availability of a specific programming channel, and the fact that

the channel will be available for free for a certain time period.

RCN provides cable and open video services in Boston, Chicago, Lehigh Valley and

suburban Philadelphia, Pennsylvania, New York City, and Washington, D.C. RCN expanded its

foreign language offerings in 2008, and now offers channels that provide programming in 15

different languages. RCN has used telephone calls delivering prerecorded messages

(“robocalls”) to notify its customers about the existence of programming offerings or changes to

channel line-ups. RCN has found that the use of foreign language speakers to conduct live-calls

to subscribers to inform them of RCN’s offerings is “cost prohibitive” because of the large

number of different language channels offered by RCN and the relatively few international

customers in each language.

RCN would like to place telephone calls delivering prerecorded messages to notify

current subscribers about its expanded foreign-language channels. The messages would notify

the subscribers that a specific foreign-language network that is not available on the subscribers’

current tiers of service is available for viewing temporarily at no additional charge. As an

example, your letter describes the following proposed telephone calls:

[A] robocall in Japanese would be sent to RCN’s Chicago customers to inform

them that the TV Japan network is available on Channel 504 without cost for the

next 30 days. This type of robocall does not provide any information about how

to subscribe to the channel after the 30-day period or the price of the channel, or
Jean L. Kiddoo February 4, 2010

Bingham McCutchen LLP Page 2

Request for Advisory Opinion

in any way “induce them to purchase any goods or services,” but instead simply

informs and educates the existing customer about the current availability of a

programming service and the time period during which the customer may freely

access the channel. The customer is then able to enjoy the free programming

without obligation, payment or any further requirements whatsoever. Information

about how to continue receiving the channel after the free preview ends would not

be provided in the robocall message and would only be available when the

programming is watched by the subscriber.

The staff of the Federal Trade Commission has concluded that the telephone calls

described in your letter are calls made in connection with “telemarketing” within the meaning of

the TSR because the calls are part of a campaign to induce the sale of services to the recipients

of the calls. Consequently, 16 C.F.R. § 310.4(b)(1)(v)(A) prohibits outbound telephone calls to

deliver such messages 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.

The Telemarketing and Consumer Fraud and Abuse Prevention Act defines

“telemarketing,” in relevant part, as “a plan, program, or campaign which is conducted to induce

purchases of goods or services . . . by use of one or more telephones and which involves more

than one interstate telephone call.” 15 U.S.C. § 6106(4). The Commission has adopted a

virtually identical definition in the TSR. Id. § 310.2(cc); Prohibition of Deceptive and Abusive

Telemarketing Acts, Final Rule, 60 Fed. Reg. 43,842, 43,844 (1995). Consequently,

“telemarketing” under the statute and its implementing regulations is not limited to activities in

which a sale or offer for sale is communicated during a telephone call. In rejecting an argument

that “telemarketing” does not include telephone calls designed to setup a meeting at which sales

may take place, the Commission observed:

[T]he definition of “telemarketing” does not require that the purchase be made

during the telephone conversation. The definition simply states that the call be

“conducted to induce the purchase of goods or services.” The inducement could

be made during the telephone call, or it could be in the form of setting up a

subsequent face-to-face meeting at which an additional sales presentation could

take place.
Jean L. Kiddoo February 4, 2010

Bingham McCutchen LLP Page 3

Request for Advisory Opinion

See also 68 Fed. Reg. at 4587 (2003) (“Thus, a sales call using a prerecorded message 1

may be ‘telemarketing’ if it is part of a plan, program, or campaign for the purpose of inducing

the purchase of goods or services or inducing a donation to a charitable organization, is

conducted by use of one or more telephones, and involves more than one interstate call.”)

See, e.g., United States v. Voice-Mail Broadcasting Corp., Civ. No. 2:08-cv-00521 2

(C.D. Cal., filed Jan. 15, 2004) (prerecorded messages promoting retail sales); United States v.

The Broadcast Team, Civ. No. 6:05-cv-01920 (M.D. Fla., filed Dec. 29, 2005) (prerecorded

messages promoting attendance at conferences). 

Telemarketing Sales Rule, Final Rule, 68 Fed. Reg. 4579, 4655-56 (2003). Consistent with this

1

interpretation of the term “telemarketing,” the Commission has brought enforcement actions

against telemarketers who delivered prerecorded messages that are not designed to make sales

over the telephone, but to induce consumers to purchase goods or services by other means, such

as sales events at retail stores. 

2

Although the Commission has observed that “telemarketing” does not include

“informational messages,” it has stressed that the TSR does cover messages that combine an

informational message with direct or indirect solicitation. See Telemarketing Sales Rule, Final

Rule Amendments, 73 Fed. Reg. at 51173 (2008); Telemarketing Sales Rule, 71 Fed. Reg. 58725,

n.107 (2006). Examples of messages that provide information but are also part of a campaign to

induce sales include invitations to special retail sales and events, ticket offers for musical events,

and announcements of local promotions. 73 Fed. Reg. at 51,173 n.113. 

We conclude that the proposed prerecorded messages announcing temporary access to

RCN channels, followed by subsequent communications concerning how RCN subscribers may

purchase continued access to these channels, are part of a plan, program or campaign to induce

sales and are not purely informational. Therefore, even though details regarding price and how

RCN subscribers can purchase access to the channels described in the messages are conveyed

through the programming, rather than through the prerecorded messages, the telephone calls fall

within the statutory and regulatory language defining “telemarketing.” A person who initiates

such calls is doing so “in connection with telemarketing,” 16 C.F.R. § 310.2(bb), and, therefore,

is a “telemarketer” subject to the restrictions on the delivery of prerecorded messages in 16

C.F.R. § 310.4(b)(1)(v)(A). The TSR also prohibits a seller from causing a telemarketer to

engage in initiating telephone calls to deliver such messages.

As noted above, 16 C.F.R. § 310.4(b)(1)(v)(A) permits telemarketers and sellers to make

outbound telephone calls to deliver prerecorded messages if the seller has obtained from the

recipient of the call an express agreement that evidences the willingness of the recipient to

receive calls that deliver prerecorded messages by or on behalf of a specific seller. Such an

authorization is not valid if the seller requires, directly or indirectly, that the agreement be
Jean L. Kiddoo 

Bingham McCutchen LLP 

Request for Advisory Opinion 

February 4,2010 

Page 4 

executed as a condition of purchasing any good or service, including services such as those that 

RCN provides to subscribers. !d. § 31O.4(b)(I)(v)(A)(ii). 

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

your letter. 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.govlbcp/telemarketing/staffopinions.shtm. 

V~0:A . LOIS Greism!n~ Associate Director 

Division of Marketing Practices