Case: 5:18-cv-00064-SL Doc #: 3 Filed: 01/10/18 1 of 3. PageID #: 12 

UNITED STATES DISTRICT COURT
 

NORTHERN DISTRICT OF OHIO
 

Case Number: 5:18-cv-64 

UNITED STATES OF AMERICA, District Judge Sara Lioi 

 Plaintiff, 

 v. 

INFOCISION, INC., a Delaware 

corporation, 

 Defendant. 

MOTION FOR ENTRY OF STIPULATED ORDER FOR PERMANENT 

INJUNCTION AND CIVIL PENALTY JUDGMENT 

The United States of America requests entry of the attached proposed Stipulated Order 

for Permanent Injunction and Civil Penalty Judgment (“Stipulated Order”). Both parties have 

agreed to entry of the Stipulated Order to resolve this case, as evidenced by their signatures. 

1
 
 

 

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Respectfully submitted, 

FOR THE FEDERAL TRADE 

COMMISSION: 

CHARLES A. HARWOOD 

Regional Director 

Northwest Region 

 

TINA E. KONDO 

Assistant Regional Director 

Northwest Region 

 

NADINE S. SAMTER 

SARAH A. SHIFLEY 

Attorneys 

Northwest Region 

Federal Trade Commission 

915 Second Avenue, Suite 2896 

Seattle, WA 98174 

(206) 220-6350 (voice) 

(206) 220-6366 (fax) 

nsamter@ftc.gov 

sshifley@ftc.gov 

 

FOR PLAINTIFF 

THE UNITED STATES OF AMERICA

CHAD A. READLER 

Acting Assistant Attorney General 

Civil Division 

U.S. Department of Justice 

ETHAN DAVIS 

Deputy Assistant Attorney General 

Civil Division 

GUSTAV W. EYLER 

Acting Director 

Consumer Protection Branch 

By: s/ Kathryn A. Schmidt_______ 

KATHRYN A. SCHMIDT 

Trial Attorney 

Consumer Protection Branch 

450 Fifth Street NW, 6th Floor South 

Washington, DC 20001 

(202) 598-8697 (voice) 

(202) 514-8742 (fax) 

kathryn.a.schmidt@usdoj.gov 

JUSTIN E. HERDMAN 

United States Attorney 

MICHELLE L. HEYER (0065723) 

Assistant U.S. Attorney 

801 West Superior Avenue, Suite 400 

Cleveland OH 44113 

(216) 622-3686 (voice) 

(216) 522-2404 (fax) 

michelle.heyer@usdoj.gov 

: 

Dated: January 10, 2017 

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CERTIFICATE OF SERVICE 

I hereby certify that on January 10, 2018, I emailed a copy of the foregoing 

Motion for Entry of Stipulated Order for Permanent Injunction and Civil Penalty Judgment to 

Mr. Terry M. Brennan and Mr. Michael D. Meuti, attorneys for Defendant InfoCision, Inc. Mr. 

Michael D. Meuti agreed to accept service of this document by email on behalf of Defendant: 

Terry M. Brennan 

Michael D. Meuti 

Baker Hostetler 

Key Tower 

127 Public Square, Suite 2000 

Cleveland, OH 44114-1214 

(216) 861-7709 (Meuti direct dial) 

(216) 696-0740 (fax) 

tbrennan@bakerlaw.com 

mmeuti@bakerlaw.com 

Attorneys for Defendant InfoCision, Inc. 

By: s/ Kathryn A. Schmidt_____ 

Kathryn A. Schmidt 

Trial Attorney 

Consumer Protection Branch 

450 Fifth Street NW, 6th Floor South 

Washington, DC 20001 

(202) 598-8697 (voice) 

(202) 514-8742 (fax) 

kathryn.a.schmidt@usdoj.gov 

3
 
 

 

 

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UNITED STATES DISTRICT COURT
 

NORTHERN DISTRICT OF OHIO
 

Case Number: 5:18-cv-64 

UNITED STATES OF AMERICA, District Judge Sara Lioi 

 Plaintiff, 

 v. 

INFOCISION, INC., a Delaware 

corporation, 

 Defendant. 

STIPULATED ORDER FOR PERMANENT
 

INJUNCTION AND CIVIL PENALTY JUDGMENT
 

Plaintiff, the United States of America, acting upon notification and authorization 

to the Attorney General by the Federal Trade Commission (“FTC” or “Commission”), filed its 

Complaint for Civil Penalties, Permanent Injunction, and Other Relief (“Complaint”), in this 

matter, pursuant to Sections 5(a), 5(m)(1)(A), 13(b), and 16(a) of the Federal Trade Commission 

Act (“FTC Act”), 15 U.S.C. §§ 45(a), 45(m)(1)(A), 53(b), and 56(a), and Section 6 of the 

Telemarketing and Consumer Fraud and Abuse Prevention Act (the “Telemarketing Act”), 15 

U.S.C. § 6105. Defendant has waived service of the summons and the Complaint. Plaintiff and 

InfoCision Stip. Order for Perm. Inj. – Page 1 
 

 

 

 

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Defendant stipulate to the entry of this Stipulated Final Order for Permanent Injunction and Civil 

Penalty Judgment (“Order”) to resolve all matters in dispute in this action between them. 

THEREFORE, IT IS ORDERED as follows: 

FINDINGS 

1. This Court has jurisdiction over this matter. 

2. The Complaint charges that Defendant engaged in deceptive acts or practices in 

violation of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and the FTC’s Telemarketing Sales 

Rule (the “TSR” or “Rule”), as amended, 16 C.F.R. Part 310, in telemarketing to solicit 

charitable contributions on behalf of charitable organizations. 

3. Defendant neither admits nor denies any of the allegations in the Complaint, 

except as specifically stated in this Order. Only for purposes of this action, Defendant admits the 

facts necessary to establish jurisdiction. 

4. Defendant waives any claim that it may have under the Equal Access to Justice 

Act, 28 U.S.C. § 2412, concerning the prosecution of this action through the date of this Order, 

and agrees to bear its own costs and attorneys’ fees. Defendant waives and releases any claims 

that it may have against Plaintiff, the Commission, and their agents that relate to this action. 

5. Defendant and Plaintiff waive all rights to appeal or otherwise challenge or 

contest the validity of this Order. 

DEFINITIONS 

For the purpose of this Order, the following definitions apply: 

A. “Charitable Contribution” means any donation or gift of money or any other 

thing of value. 

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B. “Clear(ly) and conspicuous(ly)” means that a required disclosure is difficult to 

miss (i.e., easily noticeable) and easily understandable by ordinary consumers, including in all of 

the following ways: 

1. In any communication that is solely visual or solely audible, the disclosure 

must be made through the same means through which the communication is 

presented. In any communication made through both visual and audible means, 

such as a television advertisement, the disclosure must be presented 

simultaneously in both the visual and audible portions of the communication even 

if the representation requiring the disclosure is made in only one means. 

2. A visual disclosure, by its size, contrast, location, the length of time it 

appears, and other characteristics, must stand out from any accompanying text or 

other visual elements so that it is easily noticed, read, and understood. 

3. An audible disclosure, including by telephone or streaming video, must be 

delivered in a volume, speed, and cadence sufficient for ordinary consumers to 

easily hear and understand it. 

4. In any communication using an interactive electronic medium, such as the 

Internet or software, the disclosure must be unavoidable; 

5. The disclosure must appear in each language in which the representation 

that requires the disclosure appears. 

6. The disclosure must comply with these requirements in each medium 

through which it is received, including all electronic devices and face-to-face 

communications. 

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7. The disclosure must not be contradicted or mitigated by, or inconsistent 

with, anything else in the communication. 

8. When the representation or sales practice targets a specific audience, such 

as children, the elderly, or the terminally ill, “ordinary consumers” includes 

reasonable members of that group. 

B. “Defendant” means InfoCision, Inc., and its successors and assigns. 

C. “Telemarketing” means a plan, program, or campaign which is conducted to 

induce the purchase of goods or services or a charitable contribution, by use of one or more 

telephones and which involves more than one interstate telephone call. 

ORDER 

I. PROHIBITION 

IT IS ORDERED that, in connection with Telemarketing, Defendant and its officers, 

agents, employees and those persons in active concert or participation with them who receive 

actual notice of this Order by personal service or otherwise, when acting as Telemarketers, are 

permanently restrained and enjoined from engaging in, causing others to engage in, or assisting 

and facilitating others engaging in, any of the following practices: 

A. Making a false or misleading statement to induce any person to pay for goods or 

services or to induce a Charitable Contribution; 

B. In outbound telephone calls to induce a Charitable Contribution, from failing to 

disclose truthfully, promptly, and in a clear and conspicuous manner to the person receiving the 

call, the following information: 

InfoCision Stip. Order for Perm. Inj. – Page 4 
 

 

 

 

 

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1.	 The identity of the charitable organization on behalf of which the request is 

being made; 

2.	 That the purpose of the call is to solicit a Charitable Contribution; and 

3.	 Whether the requested Charitable Contribution is a donation, a gift of money, 

or any other thing of value; and 

C. Violating the Telemarketing Sales Rule, 16 C.F.R. Part 310, attached as Appendix A. 

II. MONETARY JUDGMENT FOR CIVIL PENALTY
 

IT IS FURTHER ORDERED that:
 

A. Judgment in the amount of Two Hundred and Fifty Thousand Dollars 

($250,000.00) is entered in favor of Plaintiff against Defendant as a civil penalty. 

B. Defendant is ordered to pay to Plaintiff, by making payment to the Treasurer of 

the United States, Two Hundred and Fifty Thousand Dollars ($250,000.00), which, as Defendant 

stipulates, its undersigned counsel holds in escrow for no purpose other than payment to 

Plaintiff. Such payment must be made within seven (7) days of entry of this Order by electronic 

fund transfer in accordance with instructions previously provided by a representative of Plaintiff. 

III. ADDITIONAL MONETARY PROVISIONS
 

IT IS FURTHER ORDERED that:
 

A. Defendant relinquishes dominion and all legal and equitable right, title, and 

interest in all assets transferred pursuant to this Order and may not seek the return of any assets. 

B. The facts alleged in the Complaint will be taken as true, without further proof, in 

any subsequent civil litigation by or on behalf of the Commission to enforce its rights to any 

payment or monetary judgment pursuant to this Order. 

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C. Defendant acknowledges that its Taxpayer Identification Number (Employer 

Identification Number) may be used for collecting and reporting on any delinquent amount 

arising out of this Order, in accordance with 31 U.S.C. § 7701. 

IV. ORDER ACKNOWLEDGMENTS 

IT IS FURTHER ORDERED that Defendant obtain acknowledgments of receipt of this 

Order: 

A. Defendant, within seven (7) days of entry of this Order, must submit to the 

Commission an acknowledgment of receipt of this Order sworn under penalty of perjury. 

B. For five (5) years after entry of this Order, Defendant must deliver a copy of this 

Order to: (1) all principals, officers, directors, and LLC managers and members; (2) all account 

staff and supervisory staff involved in telemarketing for Charitable Contributions; and (3) any 

business entity resulting from any change in structure as set forth in the Section titled 

Compliance Reporting. Delivery must occur within seven (7) days of entry of this Order for 

current personnel. For all others, delivery must occur before they assume their responsibilities. 

C. From each individual or entity to which Defendant delivered a copy of this Order, 

Defendant must obtain, within thirty (30) days, a signed and dated acknowledgment of receipt of 

this Order. 

V. COMPLIANCE REPORTING 

IT IS FURTHER ORDERED that Defendant make timely submission to the Commission: 

A. One year after entry of this Order, Defendant must submit a compliance report, 

sworn under penalty of perjury, in which Defendant must: (1) identify the primary physical, 

postal, and email address and telephone number, as designated points of contact, which 

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representatives of the Commission and Plaintiff may use to communicate with Defendant; (2) 

identify all Defendant’s businesses by all of their names, telephone numbers, and physical, 

postal, email, and Internet addresses; (3) describe the activities of each business related to 

telemarketing for Charitable Contributions; (4) describe in detail whether and how Defendant is 

in compliance with each Section of this Order; and (5) provide a copy of each Order 

Acknowledgment obtained pursuant to this Order, unless previously submitted to the 

Commission. 

B. For ten (10) years after entry of this Order, Defendant must submit a compliance 

notice, sworn under penalty of perjury, within fourteen (14) days of any change in the following: 

(1) any designated point of contact; or (b) the structure of Defendant or any entity that Defendant 

has any ownership interest in or controls directly or indirectly that may affect compliance 

obligations arising under this Order, including: creation, merger, sale, or dissolution of the entity 

or any subsidiary, parent, or affiliate that engages in any acts or practices subject to this Order. 

C. Defendant must submit to the Commission notice of the filing of any bankruptcy 

petition, insolvency proceeding, or similar proceeding by or against Defendant within fourteen 

(14) days of its filing. 

D. Any submission to the Commission required by this Order to be sworn under 

penalty of perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by 

concluding: “I declare under penalty of perjury under the laws of the United States of America 

that the foregoing is true and correct. Executed on ________________” and supplying the date, 

signatory’s full name, title (if applicable), and signature. 

InfoCision Stip. Order for Perm. Inj. – Page 7 
 

 

 

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E. Unless otherwise directed by a Commission representative in writing, all 

submissions to the Commission pursuant to this Order must be emailed to Debrief@ftc.gov or 

sent by overnight courier (not the U.S. Postal Service) to: Associate Director for Enforcement, 

Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, 

Washington, DC 20580. The subject line must begin: FTC v. InfoCision, Inc. 

VI. RECORDKEEPING 

IT IS FURTHER ORDERED that Defendant must create certain records for ten (10) years 

after entry of the Order, and retain each such record for five (5) years. Specifically, Defendant 

must create and retain the following records related to telemarketing for charitable contributions: 

A. Accounting records showing InfoCision’s revenues from all Charitable 

Contributions solicited; 

B. Personnel records showing, for each person providing services related to 

telemarketing for Charitable Contributions, whether as an employee or otherwise, that person’s: 

name; addresses; telephone numbers; job title or position; dates of service; and (if applicable) the 

reason for termination; 

C. All records necessary to demonstrate full compliance with each provision of this 

Order, including all submissions to the Commission; and 

D. A copy of each unique telemarketing script and recordings of all calls made for 

each script used in telemarketing for Charitable Contributions for at least 90 days subsequent to 

the making of the call. 

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VII. COMPLIANCE MONITORING 

IT IS FURTHER ORDERED that, for the purpose of monitoring Defendant’s 

compliance with this Order: 

A. Within thirty (30) days of receipt of a written request from a representative of the 

Commission or Plaintiff, Defendant must: submit additional compliance reports or other 

requested information, which must be sworn under penalty of perjury; appear for depositions; and 

produce documents for inspection and copying. The Commission and Plaintiff are also 

authorized to obtain discovery, without further leave of the Court, using any of the procedures 

prescribed by Federal Rules of Civil Procedure 29, 30 (including telephonic depositions), 31, 33, 

34, 36, 45, and 69. 

B. For matters concerning this Order, the Commission and Plaintiff are authorized to 

communicate directly with Defendant. Defendant must permit representatives of the Commission 

and Plaintiff to interview any employee or other person affiliated with Defendant who has agreed 

to such an interview. The person interviewed may have counsel present. 

C. The Commission and Plaintiff may use all other lawful means, including posing, 

through its representatives as consumers, suppliers, or other individuals or entities, to Defendant 

or to any individual or entity affiliated with Defendant, without the necessity of identification or 

prior notice. Nothing in this Order limits the Commission’s lawful use of compulsory process, 

pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1. 

VIII. RETENTION OF JURISDICTION 

IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for purposes of 

construction, modification, and enforcement of this Order. 

InfoCision Stip. Order for Perm. Inj. – Page 9 
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SO ORDERED this __ day of _____ , 201_. 

SO STIPULATED AND AGREED: 

FOR PLAINTIFF: 

THE UNITED STATES OF AMERICA 

CHAD A. READLER 

Acting Assistant Attorney General, Civil Division 

U.S. Department of Justice 

ETHAN DAVIS 

Deputy Assistant Attorney General, Civil Division 

. GUSTAV W. EYLER 

Acting Director, Consumer Protection Branch 

KAT· 

By: ~ RYN :vsCHMIDT 

,ai.duMh 

Trial Attorney, Consumer Protection Branch 

P.O. Box 386 

Washington, DC 20044 

Phone: (202) 598-8697 

Fax: (202) 514-8742 

Email: kathryn .a. schmidt@usdoj.gov 

.

JUSTIN E. HERDMAN 

United States Attorney 

MICHELLE L. HEYER (0065723) 

Assistant U.S. Attorney 

801 West Superior Avenue, Suite 400 

Cleveland, OH 44113 

Phone: (216) 622-3686 

Fax: (216) 522-2404 

Email: michelle.heyer@usdoj.gov 

FEDERAL TRADE COMMISSION 

UNITED STATES DISTRICT JUDGE 

lnfoCision Stip. Order for Perm. Inj. -Page 10 
91 S Second Avenue, Suite 2896 

Seattle, WA 98174 

(206) 220-44 79 (Samter direct dial) 

(206) 220-4475 (Shifley direct dial) 

(206) 220-6366 (fax) 

nsarnter@ftc.gov 

sshifley@ftc.gov 

FOR DEFENDANT: 

ITRR Y l31IBNNAN 

MICHAEL MEUTI 

Artomeys for Defendant TrifoCision, Inc. 

Baker Hostetler Key Tower 

127 Public Square, Suite 2000 

Cleveland, OH 441 14-1214 

(216) 861-7709 (Mcuti direct dial) 

(216) (fax) 

tbrennan@bakerlaw.com 

mmeutj@bakerlaw.com 

FOR DEFENDANT INFOCISION, INC. 

/ 

InfoCision Stip. Order for Perm. lnj . - Page 11 

Date: 

- ------

Date: 

---- -----' as an officer of lnfoCision, Inc. 

------
NADINE S. SAMTER 

SARAH A. SHIFLEY 

Attorneys 

Northwest Region 

Federal Trade Commission 

915 Second Avenue, Suite 2896 

Seattle, WA 9817 4 

(206) 220-4479 (Samter direct dial) 

(206) 220-4475 (Shifley direct dial) 

(206) 220-6366 (fax) 

nsamter0Jftc.gov 

ssh iflev@ftc.gov 

Attorneys for Defendant InfoCision, Inc. 

Baker Hostetler 

Key Tower 

127 Public Square, Suite 2000 

Cleveland, OH 44114-1214 

(216) 861-7709 (Meuti direct dial) 

(216) (fax) 

tbrenna11ra1 bakerlavv .com 

mmeuti@bakerlaw.com 

FOR DEFENDANT INFO~NC. 

~~--· Date: 

Vi/k{ Jk.cZ-:~n officer ofinfoCision, Inc. 

InfoCision Stip. Order for Perm. Inj. -Page 11 

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Appendix A
 
 

 

 

 

 

 

 

 

 

 

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ELECTRONIC CODE OF FEDERAL REGULATIONS 

e-CFR data is current as of December 19, 2017 

Title 16 → Chapter I → Subchapter C → Part 310 

Title 16: Commercial Practices 

PART 310—TELEMARKETING SALES RULE 16 CFR PART 310 

Contents 

§310.1 Scope of regulations in this part.
 

§310.2 Definitions.
 

§310.3 Deceptive telemarketing acts or practices.
 

§310.4 Abusive telemarketing acts or practices.
 

§310.5 Recordkeeping requirements.
 

§310.6 Exemptions.
 

§310.7 Actions by states and private persons.
 

§310.8 Fee for access to the National Do Not Call Registry.
 

§310.9 Severability.
 

AUTHORITY: 15 U.S.C. 6101-6108. 

SOURCE: 75 FR 48516, Aug. 10, 2010, unless otherwise noted.

 Back to Top 

§310.1 Scope of regulations in this part. 

This part implements the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. 6101-6108, as 

amended.

 Back to Top 

§310.2 Definitions. 

(a) Acquirer means a business organization, financial institution, or an agent of a business organization or financial 

institution that has authority from an organization that operates or licenses a credit card system to authorize merchants to 

accept, transmit, or process payment by credit card through the credit card system for money, goods or services, or anything 

else of value. 

(b) Attorney General means the chief legal officer of a state. 

(c) Billing information means any data that enables any person to access a customer's or donor's account, such as a credit 

card, checking, savings, share or similar account, utility bill, mortgage loan account, or debit card. 

(d) Caller identification service means a service that allows a telephone subscriber to have the telephone number, and, 

where available, name of the calling party transmitted contemporaneously with the telephone call, and displayed on a device in 

or connected to the subscriber's telephone. 

(e) Cardholder means a person to whom a credit card is issued or who is authorized to use a credit card on behalf of or in 

addition to the person to whom the credit card is issued. 

(f) Cash-to-cash money transfer means the electronic (as defined in section 106(2) of the Electronic Signatures in Global 

and National Commerce Act (15 U.S.C. 7006(2)) transfer of the value of cash received from one person to another person in a 

different location that is sent by a money transfer provider and received in the form of cash. For purposes of this definition, 

money transfer provider means any person or financial institution that provides cash-to-cash money transfers for a person in the 

normal course of its business, whether or not the person holds an account with such person or financial institution. The term 

cash-to-cash money transfer includes a remittance transfer, as defined in section 919(g)(2) of the Electronic Fund Transfer Act 

(“EFTA”), 15 U.S.C. 1693a, that is a cash-to-cash transaction; however it does not include any transaction that is: 

(1) An electronic fund transfer as defined in section 903 of the EFTA; 

(2) Covered by Regulation E, 12 CFR 1005.20, pertaining to gift cards; or 

(3) Subject to the Truth in Lending Act, 15 U.S.C. 1601 et seq. 

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(g) Cash reload mechanism is a device, authorization code, personal identification number, or other security measure that 

makes it possible for a person to convert cash into an electronic (as defined in section 106(2) of the Electronic Signatures in 

Global and National Commerce Act (15 U.S.C. 7006(2)) form that can be used to add funds to a general-use prepaid card, as 

defined in Regulation E, 12 CFR 1005.2, or an account with a payment intermediary. For purposes of this definition, a cash 

reload mechanism is not itself a general-use prepaid debit card or a swipe reload process or similar method in which funds are 

added directly onto a person's own general-use prepaid card or account with a payment intermediary. 

(h) Charitable contribution means any donation or gift of money or any other thing of value. 

(i) Commission means the Federal Trade Commission. 

(j) Credit means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment. 

(k) Credit card means any card, plate, coupon book, or other credit device existing for the purpose of obtaining money, 

property, labor, or services on credit. 

(l) Credit card sales draft means any record or evidence of a credit card transaction. 

(m) Credit card system means any method or procedure used to process credit card transactions involving credit cards 

issued or licensed by the operator of that system. 

(n) Customer means any person who is or may be required to pay for goods or services offered through telemarketing. 

(o) Debt relief service means any program or service represented, directly or by implication, to renegotiate, settle, or in any 

way alter the terms of payment or other terms of the debt between a person and one or more unsecured creditors or debt 

collectors, including, but not limited to, a reduction in the balance, interest rate, or fees owed by a person to an unsecured 

creditor or debt collector. 

(p) Donor means any person solicited to make a charitable contribution. 

(q) Established 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. 

(r) Free-to-pay conversion means, in an offer or agreement to sell or provide any goods or services, a provision under 

which a customer receives a product or service for free for an initial period and will incur an obligation to pay for the product or 

service if he or she does not take affirmative action to cancel before the end of that period. 

(s) Investment opportunity means anything, tangible or intangible, that is offered, offered for sale, sold, or traded based 

wholly or in part on representations, either express or implied, about past, present, or future income, profit, or appreciation. 

(t) Material means likely to affect a person's choice of, or conduct regarding, goods or services or a charitable contribution. 

(u) Merchant means a person who is authorized under a written contract with an acquirer to honor or accept credit cards, or 

to transmit or process for payment credit card payments, for the purchase of goods or services or a charitable contribution. 

(v) Merchant agreement means a written contract between a merchant and an acquirer to honor or accept credit cards, or 

to transmit or process for payment credit card payments, for the purchase of goods or services or a charitable contribution. 

(w) Negative option feature means, in an offer or agreement to sell or provide any goods or services, a provision under 

which the customer's silence or failure to take an affirmative action to reject goods or services or to cancel the agreement is 

interpreted by the seller as acceptance of the offer. 

(x) Outbound telephone call means a telephone call initiated by a telemarketer to induce the purchase of goods or services 

or to solicit a charitable contribution. 

(y) Person means any individual, group, unincorporated association, limited or general partnership, corporation, or other 

business entity. 

(z) Preacquired account information means any information that enables a seller or telemarketer to cause a charge to be 

placed against a customer's or donor's account without obtaining the account number directly from the customer or donor 

during the telemarketing transaction pursuant to which the account will be charged. 

(aa) Prize means anything offered, or purportedly offered, and given, or purportedly given, to a person by chance. For 

purposes of this definition, chance exists if a person is guaranteed to receive an item and, at the time of the offer or purported 

offer, the telemarketer does not identify the specific item that the person will receive. 

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(bb) Prize promotion means: 

(1) A sweepstakes or other game of chance; or 

(2) An oral or written express or implied representation that a person has won, has been selected to receive, or may be 

eligible to receive a prize or purported prize. 

(cc) Remotely created payment order means any payment instruction or order drawn on a person's account that is created 

by the payee or the payee's agent and deposited into or cleared through the check clearing system. The term includes, without 

limitation, a “remotely created check,” as defined in Regulation CC, Availability of Funds and Collection of Checks, 12 CFR 

229.2(fff), but does not include a payment order cleared through an Automated Clearinghouse (ACH) Network or subject to the 

Truth in Lending Act, 15 U.S.C. 1601 et seq., and Regulation Z, 12 CFR part 1026. 

(dd) Seller means any person who, in connection with a telemarketing transaction, provides, offers to provide, or arranges 

for others to provide goods or services to the customer in exchange for consideration. 

(ee) State means any state of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, and 

any territory or possession of the United States. 

(ff) Telemarketer means any person who, in connection with telemarketing, initiates or receives telephone calls to or from a 

customer or donor. 

(gg) Telemarketing means a plan, program, or campaign which is conducted to induce the purchase of goods or services 

or a charitable contribution, by use of one or more telephones and which involves more than one interstate telephone call. The 

term does not include the solicitation of sales through the mailing of a catalog which: contains a written description or illustration 

of the goods or services offered for sale; includes the business address of the seller; includes multiple pages of written material 

or illustrations; and has been issued not less frequently than once a year, when the person making the solicitation does not 

solicit customers by telephone but only receives calls initiated by customers in response to the catalog and during those calls 

takes orders only without further solicitation. For purposes of the previous sentence, the term “further solicitation” does not 

include providing the customer with information about, or attempting to sell, any other item included in the same catalog which 

prompted the customer's call or in a substantially similar catalog. 

(hh) Upselling means soliciting the purchase of goods or services following an initial transaction during a single telephone 

call. The upsell is a separate telemarketing transaction, not a continuation of the initial transaction. An “external upsell” is a 

solicitation made by or on behalf of a seller different from the seller in the initial transaction, regardless of whether the initial 

transaction and the subsequent solicitation are made by the same telemarketer. An “internal upsell” is a solicitation made by or 

on behalf of the same seller as in the initial transaction, regardless of whether the initial transaction and subsequent solicitation 

are made by the same telemarketer. 

[75 FR 48516, Aug. 10, 2010, as amended at 80 FR 77557, Dec. 14, 2015]

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§310.3 Deceptive telemarketing acts or practices. 

(a) Prohibited deceptive telemarketing acts or practices. It is a deceptive telemarketing act or practice and a violation of this 

Rule for any seller or telemarketer to engage in the following conduct: 

(1) Before a customer consents to pay659 for goods or services offered, failing to disclose truthfully, in a clear and 

conspicuous manner, the following material information: 

659 When a seller or telemarketer uses, or directs a customer to use, a courier to transport payment, the seller or telemarketer must 

make the disclosures required by §310.3(a)(1) before sending a courier to pick up payment or authorization for payment, or directing a 

customer to have a courier pick up payment or authorization for payment. In the case of debt relief services, the seller or telemarketer 

must make the disclosures required by §310.3(a)(1) before the consumer enrolls in an offered program. 

(i) The total costs to purchase, receive, or use, and the quantity of, any goods or services that are the subject of the sales 

offer;660 

660 For offers of consumer credit products subject to the Truth in Lending Act, 15 U.S.C. 1601 et seq., and Regulation Z, 12 CFR 226, 

compliance with the disclosure requirements under the Truth in Lending Act and Regulation Z shall constitute compliance with §310.3(a) 

(1)(i) of this Rule. 

(ii) All material restrictions, limitations, or conditions to purchase, receive, or use the goods or services that are the subject 

of the sales offer; 

(iii) If the seller has a policy of not making refunds, cancellations, exchanges, or repurchases, a statement informing the 

customer that this is the seller's policy; or, if the seller or telemarketer makes a representation about a refund, cancellation, 

exchange, or repurchase policy, a statement of all material terms and conditions of such policy; 

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(iv) In any prize promotion, the odds of being able to receive the prize, and, if the odds are not calculable in advance, the 

factors used in calculating the odds; that no purchase or payment is required to win a prize or to participate in a prize promotion 

and that any purchase or payment will not increase the person's chances of winning; and the no-purchase/no-payment method 

of participating in the prize promotion with either instructions on how to participate or an address or local or toll-free telephone 

number to which customers may write or call for information on how to participate; 

(v) All material costs or conditions to receive or redeem a prize that is the subject of the prize promotion; 

(vi) In the sale of any goods or services represented to protect, insure, or otherwise limit a customer's liability in the event 

of unauthorized use of the customer's credit card, the limits on a cardholder's liability for unauthorized use of a credit card 

pursuant to 15 U.S.C. 1643; 

(vii) If the offer includes a negative option feature, all material terms and conditions of the negative option feature, 

including, but not limited to, the fact that the customer's account will be charged unless the customer takes an affirmative action 

to avoid the charge(s), the date(s) the charge(s) will be submitted for payment, and the specific steps the customer must take to 

avoid the charge(s); and 

(viii) In the sale of any debt relief service: 

(A) the amount of time necessary to achieve the represented results, and to the extent that the service may include a 

settlement offer to any of the customer's creditors or debt collectors, the time by which the debt relief service provider will make 

a bona fide settlement offer to each of them; 

(B) to the extent that the service may include a settlement offer to any of the customer's creditors or debt collectors, the 

amount of money or the percentage of each outstanding debt that the customer must accumulate before the debt relief service 

provider will make a bona fide settlement offer to each of them; 

(C) to the extent that any aspect of the debt relief service relies upon or results in the customer's failure to make timely 

payments to creditors or debt collectors, that the use of the debt relief service will likely adversely affect the customer's 

creditworthiness, may result in the customer being subject to collections or sued by creditors or debt collectors, and may 

increase the amount of money the customer owes due to the accrual of fees and interest; and 

(D) to the extent that the debt relief service requests or requires the customer to place funds in an account at an insured 

financial institution, that the customer owns the funds held in the account, the customer may withdraw from the debt relief 

service at any time without penalty, and, if the customer withdraws, the customer must receive all funds in the account, other 

than funds earned by the debt relief service in compliance with §310.4(a)(5)(i)(A) through (C). 

(2) Misrepresenting, directly or by implication, in the sale of goods or services any of the following material information: 

(i) The total costs to purchase, receive, or use, and the quantity of, any goods or services that are the subject of a sales 

offer; 

(ii) Any material restriction, limitation, or condition to purchase, receive, or use goods or services that are the subject of a 

sales offer; 

(iii) Any material aspect of the performance, efficacy, nature, or central characteristics of goods or services that are the 

subject of a sales offer; 

(iv) Any material aspect of the nature or terms of the seller's refund, cancellation, exchange, or repurchase policies; 

(v) Any material aspect of a prize promotion including, but not limited to, the odds of being able to receive a prize, the 

nature or value of a prize, or that a purchase or payment is required to win a prize or to participate in a prize promotion; 

(vi) Any material aspect of an investment opportunity including, but not limited to, risk, liquidity, earnings potential, or 

profitability; 

(vii) A seller's or telemarketer's affiliation with, or endorsement or sponsorship by, any person or government entity; 

(viii) That any customer needs offered goods or services to provide protections a customer already has pursuant to 15 

U.S.C. 1643; 

(ix) Any material aspect of a negative option feature including, but not limited to, the fact that the customer's account will be 

charged unless the customer takes an affirmative action to avoid the charge(s), the date(s) the charge(s) will be submitted for 

payment, and the specific steps the customer must take to avoid the charge(s); or 

(x) Any material aspect of any debt relief service, including, but not limited to, the amount of money or the percentage of 

the debt amount that a customer may save by using such service; the amount of time necessary to achieve the represented 

results; the amount of money or the percentage of each outstanding debt that the customer must accumulate before the 

provider of the debt relief service will initiate attempts with the customer's creditors or debt collectors or make a bona fide offer 

to negotiate, settle, or modify the terms of the customer's debt; the effect of the service on a customer's creditworthiness; the 

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effect of the service on collection efforts of the customer's creditors or debt collectors; the percentage or number of customers 

who attain the represented results; and whether a debt relief service is offered or provided by a non-profit entity. 

(3) Causing billing information to be submitted for payment, or collecting or attempting to collect payment for goods or 

services or a charitable contribution, directly or indirectly, without the customer's or donor's express verifiable authorization, 

except when the method of payment used is a credit card subject to protections of the Truth in Lending Act and Regulation Z,661 

or a debit card subject to the protections of the Electronic Fund Transfer Act and Regulation E.662 Such authorization shall be 

deemed verifiable if any of the following means is employed: 

661 Truth in Lending Act, 15 U.S.C. 1601 et seq., and Regulation Z, 12 CFR part 226. 

662 Electronic Fund Transfer Act, 15 U.S.C. 1693 et seq., and Regulation E, 12 CFR part 205. 

(i) Express written authorization by the customer or donor, which includes the customer's or donor's signature;663 

663 For purposes of this Rule, the term “signature” shall include an electronic or digital form of signature, to the extent that such form 

of signature is recognized as a valid signature under applicable federal law or state contract law. 

(ii) Express oral authorization which is audio-recorded and made available upon request to the customer or donor, and the 

customer's or donor's bank or other billing entity, and which evidences clearly both the customer's or donor's authorization of 

payment for the goods or services or charitable contribution that are the subject of the telemarketing transaction and the 

customer's or donor's receipt of all of the following information: 

(A) An accurate description, clearly and conspicuously stated, of the goods or services or charitable contribution for which 

payment authorization is sought; 

(B) The number of debits, charges, or payments (if more than one); 

(C) The date(s) the debit(s), charge(s), or payment(s) will be submitted for payment; 

(D) The amount(s) of the debit(s), charge(s), or payment(s); 

(E) The customer's or donor's name; 

(F) The customer's or donor's billing information, identified with sufficient specificity such that the customer or donor 

understands what account will be used to collect payment for the goods or services or charitable contribution that are the 

subject of the telemarketing transaction; 

(G) A telephone number for customer or donor inquiry that is answered during normal business hours; and 

(H) The date of the customer's or donor's oral authorization; or 

(iii) Written confirmation of the transaction, identified in a clear and conspicuous manner as such on the outside of the 

envelope, sent to the customer or donor via first class mail prior to the submission for payment of the customer's or donor's 

billing information, and that includes all of the information contained in §§310.3(a)(3)(ii)(A)-(G) and a clear and conspicuous 

statement of the procedures by which the customer or donor can obtain a refund from the seller or telemarketer or charitable 

organization in the event the confirmation is inaccurate; provided, however, that this means of authorization shall not be 

deemed verifiable in instances in which goods or services are offered in a transaction involving a free-to-pay conversion and 

preacquired account information. 

(4) Making a false or misleading statement to induce any person to pay for goods or services or to induce a charitable 

contribution. 

(b) Assisting and facilitating. It is a deceptive telemarketing act or practice and a violation of this Rule for a person to 

provide substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing 

that the seller or telemarketer is engaged in any act or practice that violates §§310.3(a), (c) or (d), or §310.4 of this Rule. 

(c) Credit card laundering. Except as expressly permitted by the applicable credit card system, it is a deceptive 

telemarketing act or practice and a violation of this Rule for: 

(1) A merchant to present to or deposit into, or cause another to present to or deposit into, the credit card system for 

payment, a credit card sales draft generated by a telemarketing transaction that is not the result of a telemarketing credit card 

transaction between the cardholder and the merchant; 

(2) Any person to employ, solicit, or otherwise cause a merchant, or an employee, representative, or agent of the 

merchant, to present to or deposit into the credit card system for payment, a credit card sales draft generated by a 

telemarketing transaction that is not the result of a telemarketing credit card transaction between the cardholder and the 

merchant; or 

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(3) Any person to obtain access to the credit card system through the use of a business relationship or an affiliation with a 

merchant, when such access is not authorized by the merchant agreement or the applicable credit card system. 

(d) Prohibited deceptive acts or practices in the solicitation of charitable contributions. It is a fraudulent charitable 

solicitation, a deceptive telemarketing act or practice, and a violation of this Rule for any telemarketer soliciting charitable 

contributions to misrepresent, directly or by implication, any of the following material information: 

(1) The nature, purpose, or mission of any entity on behalf of which a charitable contribution is being requested; 

(2) That any charitable contribution is tax deductible in whole or in part; 

(3) The purpose for which any charitable contribution will be used; 

(4) The percentage or amount of any charitable contribution that will go to a charitable organization or to any particular 

charitable program; 

(5) Any material aspect of a prize promotion including, but not limited to: the odds of being able to receive a prize; the 

nature or value of a prize; or that a charitable contribution is required to win a prize or to participate in a prize promotion; or 

(6) A charitable organization's or telemarketer's affiliation with, or endorsement or sponsorship by, any person or 

government entity. 

[75 FR 48516, Aug. 10, 2010, as amended at 80 FR 77558, Dec. 14, 2015]

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§310.4 Abusive telemarketing acts or practices. 

(a) Abusive conduct generally. It is an abusive telemarketing act or practice and a violation of this Rule for any seller or 

telemarketer to engage in the following conduct: 

(1) Threats, intimidation, or the use of profane or obscene language; 

(2) Requesting or receiving payment of any fee or consideration for goods or services represented to remove derogatory 

information from, or improve, a person's credit history, credit record, or credit rating until: 

(i) The time frame in which the seller has represented all of the goods or services will be provided to that person has 

expired; and 

(ii) The seller has provided the person with documentation in the form of a consumer report from a consumer reporting 

agency demonstrating that the promised results have been achieved, such report having been issued more than six months 

after the results were achieved. Nothing in this Rule should be construed to affect the requirement in the Fair Credit Reporting 

Act, 15 U.S.C. 1681, that a consumer report may only be obtained for a specified permissible purpose; 

(3) Requesting or receiving payment of any fee or consideration from a person for goods or services represented to 

recover or otherwise assist in the return of money or any other item of value paid for by, or promised to, that person in a 

previous transaction, until seven (7) business days after such money or other item is delivered to that person. This provision 

shall not apply to goods or services provided to a person by a licensed attorney; 

(4) Requesting or receiving payment of any fee or consideration in advance of obtaining a loan or other extension of credit 

when the seller or telemarketer has guaranteed or represented a high likelihood of success in obtaining or arranging a loan or 

other extension of credit for a person; 

(5)(i) Requesting or receiving payment of any fee or consideration for any debt relief service until and unless: 

(A) The seller or telemarketer has renegotiated, settled, reduced, or otherwise altered the terms of at least one debt 

pursuant to a settlement agreement, debt management plan, or other such valid contractual agreement executed by the 

customer; 

(B) The customer has made at least one payment pursuant to that settlement agreement, debt management plan, or other 

valid contractual agreement between the customer and the creditor or debt collector; and 

(C) To the extent that debts enrolled in a service are renegotiated, settled, reduced, or otherwise altered individually, the 

fee or consideration either: 

(1) Bears the same proportional relationship to the total fee for renegotiating, settling, reducing, or altering the terms of the 

entire debt balance as the individual debt amount bears to the entire debt amount. The individual debt amount and the entire 

debt amount are those owed at the time the debt was enrolled in the service; or 

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(2) Is a percentage of the amount saved as a result of the renegotiation, settlement, reduction, or alteration. The 

percentage charged cannot change from one individual debt to another. The amount saved is the difference between the 

amount owed at the time the debt was enrolled in the service and the amount actually paid to satisfy the debt. 

(ii) Nothing in §310.4(a)(5)(i) prohibits requesting or requiring the customer to place funds in an account to be used for the 

debt relief provider's fees and for payments to creditors or debt collectors in connection with the renegotiation, settlement, 

reduction, or other alteration of the terms of payment or other terms of a debt, provided that: 

(A) The funds are held in an account at an insured financial institution; 

(B) The customer owns the funds held in the account and is paid accrued interest on the account, if any; 

(C) The entity administering the account is not owned or controlled by, or in any way affiliated with, the debt relief service; 

(D) The entity administering the account does not give or accept any money or other compensation in exchange for 

referrals of business involving the debt relief service; and 

(E) The customer may withdraw from the debt relief service at any time without penalty, and must receive all funds in the 

account, other than funds earned by the debt relief service in compliance with §310.4(a)(5)(i)(A) through (C), within seven (7) 

business days of the customer's request. 

(6) Disclosing or receiving, for consideration, unencrypted consumer account numbers for use in telemarketing; provided, 

however, that this paragraph shall not apply to the disclosure or receipt of a customer's or donor's billing information to process 

a payment for goods or services or a charitable contribution pursuant to a transaction; 

(7) Causing billing information to be submitted for payment, directly or indirectly, without the express informed consent of 

the customer or donor. In any telemarketing transaction, the seller or telemarketer must obtain the express informed consent of 

the customer or donor to be charged for the goods or services or charitable contribution and to be charged using the identified 

account. In any telemarketing transaction involving preacquired account information, the requirements in paragraphs (a)(7)(i) 

through (ii) of this section must be met to evidence express informed consent. 

(i) In any telemarketing transaction involving preacquired account information and a free-to-pay conversion feature, the 

seller or telemarketer must: 

(A) Obtain from the customer, at a minimum, the last four (4) digits of the account number to be charged; 

(B) Obtain from the customer his or her express agreement to be charged for the goods or services and to be charged 

using the account number pursuant to paragraph (a)(7)(i)(A) of this section; and, 

(C) Make and maintain an audio recording of the entire telemarketing transaction. 

(ii) In any other telemarketing transaction involving preacquired account information not described in paragraph (a)(7)(i) of 

this section, the seller or telemarketer must: 

(A) At a minimum, identify the account to be charged with sufficient specificity for the customer or donor to understand what 

account will be charged; and 

(B) Obtain from the customer or donor his or her express agreement to be charged for the goods or services and to be 

charged using the account number identified pursuant to paragraph (a)(7)(ii)(A) of this section; 

(8) Failing to transmit or cause to be transmitted the telephone number, and, when made available by the telemarketer's 

carrier, the name of the telemarketer, to any caller identification service in use by a recipient of a telemarketing call; provided 

that it shall not be a violation to substitute (for the name and phone number used in, or billed for, making the call) the name of 

the seller or charitable organization on behalf of which a telemarketing call is placed, and the seller's or charitable organization's 

customer or donor service telephone number, which is answered during regular business hours; 

(9) Creating or causing to be created, directly or indirectly, a remotely created payment order as payment for goods or 

services offered or sold through telemarketing or as a charitable contribution solicited or sought through telemarketing; or 

(10) Accepting from a customer or donor, directly or indirectly, a cash-to-cash money transfer or cash reload mechanism as 

payment for goods or services offered or sold through telemarketing or as a charitable contribution solicited or sought through 

telemarketing. 

(b) Pattern of calls. (1) It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer to 

engage in, or for a seller to cause a telemarketer to engage in, the following conduct: 

(i) Causing any telephone to ring, or engaging any person in telephone conversation, repeatedly or continuously with intent 

to annoy, abuse, or harass any person at the called number; 

(ii) Denying or interfering in any way, directly or indirectly, with a person's right to be placed on any registry of names 

and/or telephone numbers of persons who do not wish to receive outbound telephone calls established to comply with 

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paragraph (b)(1)(iii)(A) of this section, including, but not limited to, harassing any person who makes such a request; hanging 

up on that person; failing to honor the request; requiring the person to listen to a sales pitch before accepting the request; 

assessing a charge or fee for honoring the request; requiring a person to call a different number to submit the request; and 

requiring the person to identify the seller making the call or on whose behalf the call is made; 

(iii) Initiating any outbound telephone call to a person when: 

(A) That person previously has stated that he or she does not wish to receive an outbound telephone call made by or on 

behalf of the seller whose goods or services are being offered or made on behalf of the charitable organization for which a 

charitable contribution is being solicited; or 

(B) That person's telephone number is on the “do-not-call” registry, maintained by the Commission, of persons who do not 

wish to receive outbound telephone calls to induce the purchase of goods or services unless the seller or telemarketer: 

(1) Can demonstrate that the seller has obtained the express agreement, in writing, of such person to place calls to that 

person. Such written agreement shall clearly evidence such person's authorization that calls made by or on behalf of a specific 

party may be placed to that person, and shall include the telephone number to which the calls may be placed and the 

signature664 of that person; or 

664For purposes of this Rule, the term “signature” shall include an electronic or digital form of signature, to the extent that such form of 

signature is recognized as a valid signature under applicable federal law or state contract law. 

(2) Can demonstrate that the seller has an established business relationship with such person, and that person has not 

stated that he or she does not wish to receive outbound telephone calls under paragraph (b)(1)(iii)(A) of this section; or 

(iv) Abandoning any outbound telephone call. 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 (2) seconds of the person's 

completed greeting. 

(v) Initiating any outbound telephone call that delivers a prerecorded message, other than a prerecorded message 

permitted for compliance with the call abandonment safe harbor in §310.4(b)(4)(iii), unless: 

(A) In any such call to induce the purchase of any good or service, the seller has obtained from the recipient of the call an 

express agreement, in writing, that: 

(i) The seller obtained only after a clear and conspicuous disclosure that the purpose of the agreement is to authorize the 

seller to place prerecorded calls to such person; 

(ii) The seller obtained without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing 

any good or service; 

(iii) Evidences the willingness of the recipient of the call to receive calls that deliver prerecorded messages by or on behalf 

of a specific seller; and 

(iv) Includes such person's telephone number and signature;665 and 

665 For purposes of this Rule, the term “signature” shall include an electronic or digital form of signature, to the extent that such form 

of signature is recognized as a valid signature under applicable federal law or state contract law. 

(B) In any such call to induce the purchase of any good or service, or to induce a charitable contribution from a member of, 

or previous donor to, a non-profit charitable organization on whose behalf the call is made, the seller or telemarketer: 

(i) Allows the telephone to ring for at least fifteen (15) seconds or four (4) rings before disconnecting an unanswered call; 

and 

(ii) Within two (2) seconds after the completed greeting of the person called, plays a prerecorded message that promptly 

provides the disclosures required by §310.4(d) or (e), followed immediately by a disclosure of one or both of the following: 

(A) In the case of a call that could be answered in person by a consumer, that the person called can use an automated 

interactive voice and/or keypress-activated opt-out mechanism to assert a Do Not Call request pursuant to §310.4(b)(1)(iii)(A) at 

any time during the message. The mechanism must: 

(1) Automatically add the number called to the seller's entity-specific Do Not Call list; 

(2) Once invoked, immediately disconnect the call; and 

(3) Be available for use at any time during the message; and 

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(B) In the case of a call that could be answered by an answering machine or voicemail service, that the person called can 

use a toll-free telephone number to assert a Do Not Call request pursuant to §310.4(b)(1)(iii)(A). The number provided must 

connect directly to an automated interactive voice or keypress-activated opt-out mechanism that: 

(1) Automatically adds the number called to the seller's entity-specific Do Not Call list; 

(2) Immediately thereafter disconnects the call; and 

(3) Is accessible at any time throughout the duration of the telemarketing campaign; and 

(iii) Complies with all other requirements of this part and other applicable federal and state laws. 

(C) Any call that complies with all applicable requirements of this paragraph (v) shall not be deemed to violate §310.4(b)(1) 

(iv) of this part. 

(D) This paragraph (v) shall not apply to any outbound telephone call that delivers a prerecorded healthcare message 

made by, or on behalf of, a covered entity or its business associate, as those terms are defined in the HIPAA Privacy Rule, 45 

CFR 160.103. 

(2) It is an abusive telemarketing act or practice and a violation of this Rule for any person to sell, rent, lease, purchase, or 

use any list established to comply with §310.4(b)(1)(iii)(A), or maintained by the Commission pursuant to §310.4(b)(1)(iii)(B), for 

any purpose except compliance with the provisions of this Rule or otherwise to prevent telephone calls to telephone numbers 

on such lists. 

(3) A seller or telemarketer will not be liable for violating §310.4(b)(1)(ii) and (iii) if it can demonstrate that, as part of the 

seller's or telemarketer's routine business practice: 

(i) It has established and implemented written procedures to comply with §310.4(b)(1)(ii) and (iii); 

(ii) It has trained its personnel, and any entity assisting in its compliance, in the procedures established pursuant to §310.4 

(b)(3)(i); 

(iii) The seller, or a telemarketer or another person acting on behalf of the seller or charitable organization, has maintained 

and recorded a list of telephone numbers the seller or charitable organization may not contact, in compliance with §310.4(b)(1) 

(iii)(A); 

(iv) The seller or a telemarketer uses a process to prevent telemarketing to any telephone number on any list established 

pursuant to §310.4(b)(3)(iii) or 310.4(b)(1)(iii)(B), employing a version of the “do-not-call” registry obtained from the Commission 

no more than thirty-one (31) days prior to the date any call is made, and maintains records documenting this process; 

(v) The seller or a telemarketer or another person acting on behalf of the seller or charitable organization, monitors and 

enforces compliance with the procedures established pursuant to §310.4(b)(3)(i); and 

(vi) Any subsequent call otherwise violating paragraph (b)(1)(ii) or (iii) of this section is the result of error and not of failure 

to obtain any information necessary to comply with a request pursuant to paragraph (b)(1)(iii)(A) of this section not to receive 

further calls by or on behalf of a seller or charitable organization. 

(4) A seller or telemarketer will not be liable for violating §310.4(b)(1)(iv) if: 

(i) The seller or telemarketer employs technology that ensures abandonment of no more than three (3) percent of all calls 

answered by a person, measured over the duration of a single calling campaign, if less than 30 days, or separately over each 

successive 30-day period or portion thereof that the campaign continues. 

(ii) The seller or telemarketer, for each telemarketing call placed, allows the telephone to ring for at least fifteen (15) 

seconds or four (4) rings before disconnecting an unanswered call; 

(iii) Whenever a sales representative is not available to speak with the person answering the call within two (2) seconds 

after the person's completed greeting, the seller or telemarketer promptly plays a recorded message that states the name and 

telephone number of the seller on whose behalf the call was placed666; and 

666 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. 

(iv) The seller or telemarketer, in accordance with §310.5(b)-(d), retains records establishing compliance with §310.4(b)(4) 

(i)-(iii). 

(c) Calling time restrictions. Without the prior consent of a person, it is an abusive telemarketing act or practice and a 

violation of this Rule for a telemarketer to engage in outbound telephone calls to a person's residence at any time other than 

between 8:00 a.m. and 9:00 p.m. local time at the called person's location. 

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(d) Required oral disclosures in the sale of goods or services. It is an abusive telemarketing act or practice and a violation 

of this Rule for a telemarketer in an outbound telephone call or internal or external upsell to induce the purchase of goods or 

services to fail to disclose truthfully, promptly, and in a clear and conspicuous manner to the person receiving the call, the 

following information: 

(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. This disclosure must 

be made before or in conjunction with the description of the prize to the person called. If requested by that person, the 

telemarketer must disclose the no-purchase/no-payment entry method for the prize promotion; provided, however, that, in any 

internal upsell for the sale of goods or services, the seller or telemarketer must provide the disclosures listed in this section only 

to the extent that the information in the upsell differs from the disclosures provided in the initial telemarketing transaction. 

(e) Required oral disclosures in charitable solicitations. It is an abusive telemarketing act or practice and a violation of this 

Rule for a telemarketer, in an outbound telephone call to induce a charitable contribution, to fail to disclose truthfully, promptly, 

and in a clear and conspicuous manner to the person receiving the call, the following information: 

(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. 

[75 FR 48516, Aug. 10, 2010, as amended at 76 FR 58716, Sept. 22, 2011; 80 FR 77559, Dec. 14, 2015]

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§310.5 Recordkeeping requirements. 

(a) Any seller or telemarketer shall keep, for a period of 24 months from the date the record is produced, the following 

records relating to its telemarketing activities: 

(1) All substantially different advertising, brochures, telemarketing scripts, and promotional materials; 

(2) The name and last known address of each prize recipient and the prize awarded for prizes that are represented, directly 

or by implication, to have a value of $25.00 or more; 

(3) The name and last known address of each customer, the goods or services purchased, the date such goods or services 

were shipped or provided, and the amount paid by the customer for the goods or services;667 

667 For offers of consumer credit products subject to the Truth in Lending Act, 15 U.S.C. 1601 et seq., and Regulation Z, 12 CFR 226, 

compliance with the recordkeeping requirements under the Truth in Lending Act, and Regulation Z, shall constitute compliance with 

§310.5(a)(3) of this Rule. 

(4) The name, any fictitious name used, the last known home address and telephone number, and the job title(s) for all 

current and former employees directly involved in telephone sales or solicitations; provided, however, that if the seller or 

telemarketer permits fictitious names to be used by employees, each fictitious name must be traceable to only one specific 

employee; and 

(5) All verifiable authorizations or records of express informed consent or express agreement required to be provided or 

received under this Rule. 

(b) A seller or telemarketer may keep the records required by §310.5(a) in any form, and in the same manner, format, or 

place as they keep such records in the ordinary course of business. Failure to keep all records required by §310.5(a) shall be a 

violation of this Rule. 

(c) The seller and the telemarketer calling on behalf of the seller may, by written agreement, allocate responsibility between 

themselves for the recordkeeping required by this Section. When a seller and telemarketer have entered into such an 

agreement, the terms of that agreement shall govern, and the seller or telemarketer, as the case may be, need not keep 

records that duplicate those of the other. If the agreement is unclear as to who must maintain any required record(s), or if no 

such agreement exists, the seller shall be responsible for complying with §§310.5(a)(1)-(3) and (5); the telemarketer shall be 

responsible for complying with §310.5(a)(4). 

(d) In the event of any dissolution or termination of the seller's or telemarketer's business, the principal of that seller or 

telemarketer shall maintain all records as required under this section. In the event of any sale, assignment, or other change in 

ownership of the seller's or telemarketer's business, the successor business shall maintain all records required under this 

section. 

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§310.6 Exemptions. 

(a) Solicitations to induce charitable contributions via outbound telephone calls are not covered by §310.4(b)(1)(iii)(B) of 

this Rule. 

(b) The following acts or practices are exempt from this Rule: 

(1) The sale of pay-per-call services subject to the Commission's Rule entitled “Trade Regulation Rule Pursuant to the 

Telephone Disclosure and Dispute Resolution Act of 1992,” 16 CFR part 308, provided, however, that this exemption does not 

apply to the requirements of §§310.4(a)(1), (a)(7), (b), and (c); 

(2) The sale of franchises subject to the Commission's Rule entitled “Disclosure Requirements and Prohibitions Concerning 

Franchising,” (“Franchise Rule”) 16 CFR part 436, and the sale of business opportunities subject to the Commission's Rule 

entitled “Disclosure Requirements and Prohibitions Concerning Business Opportunities,” (“Business Opportunity Rule”) 16 CFR 

part 437, provided, however, that this exemption does not apply to the requirements of §§310.4(a)(1), (a)(7), (b), and (c); 

(3) Telephone calls in which the sale of goods or services or charitable solicitation is not completed, and payment or 

authorization of payment is not required, until after a face-to-face sales or donation presentation by the seller or charitable 

organization, provided, however, that this exemption does not apply to the requirements of §§310.4(a)(1), (a)(7), (b), and (c); 

(4) Telephone calls initiated by a customer or donor that are not the result of any solicitation by a seller, charitable 

organization, or telemarketer, provided, however, that this exemption does not apply to any instances of upselling included in 

such telephone calls; 

(5) Telephone calls initiated by a customer or donor in response to an advertisement through any medium, other than direct 

mail solicitation, provided, however, that this exemption does not apply to: 

(i) Calls initiated by a customer or donor in response to an advertisement relating to investment opportunities, debt relief 

services, business opportunities other than business arrangements covered by the Franchise Rule or Business Opportunity 

Rule, or advertisements involving offers for goods or services described in §310.3(a)(1)(vi) or §310.4(a)(2) through (4); 

(ii) The requirements of §310.4(a)(9) or (10); or 

(iii) Any instances of upselling included in such telephone calls; 

(6) Telephone calls initiated by a customer or donor in response to a direct mail solicitation, including solicitations via the 

U.S. Postal Service, facsimile transmission, electronic mail, and other similar methods of delivery in which a solicitation is 

directed to specific address(es) or person(s), that clearly, conspicuously, and truthfully discloses all material information listed in 

§310.3(a)(1), for any goods or services offered in the direct mail solicitation, and that contains no material misrepresentation 

regarding any item contained in §310.3(d) for any requested charitable contribution; provided, however, that this exemption 

does not apply to: 

(i) Calls initiated by a customer in response to a direct mail solicitation relating to prize promotions, investment 

opportunities, debt relief services, business opportunities other than business arrangements covered by the Franchise Rule or 

Business Opportunity Rule, or goods or services described in §310.3(a)(1)(vi) or §310.4(a)(2) through (4); 

(ii) The requirements of §310.4(a)(9) or (10); or 

(iii) Any instances of upselling included in such telephone calls; and 

(7) Telephone calls between a telemarketer and any business to induce the purchase of goods or services or a charitable 

contribution by the business, except calls to induce the retail sale of nondurable office or cleaning supplies; provided, however, 

that §§310.4(b)(1)(iii)(B) and 310.5 shall not apply to sellers or telemarketers of nondurable office or cleaning supplies. 

[75 FR 48516, Aug. 10, 2010, as amended at 80 FR 77559, Dec. 14, 2015]

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§310.7 Actions by states and private persons. 

(a) Any attorney general or other officer of a state authorized by the state to bring an action under the Telemarketing and 

Consumer Fraud and Abuse Prevention Act, and any private person who brings an action under that Act, shall serve written 

notice of its action on the Commission, if feasible, prior to its initiating an action under this Rule. The notice shall be sent to the 

Office of the Director, Bureau of Consumer Protection, Federal Trade Commission, Washington, DC 20580, and shall include a 

copy of the state's or private person's complaint and any other pleadings to be filed with the court. If prior notice is not feasible, 

the state or private person shall serve the Commission with the required notice immediately upon instituting its action. 

(b) Nothing contained in this Section shall prohibit any attorney general or other authorized state official from proceeding in 

state court on the basis of an alleged violation of any civil or criminal statute of such state. 

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§310.8 Fee for access to the National Do Not Call Registry. 

(a) It is a violation of this Rule for any seller to initiate, or cause any telemarketer to initiate, an outbound telephone call to 

any person whose telephone number is within a given area code unless such seller, either directly or through another person, 

first has paid the annual fee, required by §310.8(c), for access to telephone numbers within that area code that are included in 

the National Do Not Call Registry maintained by the Commission under §310.4(b)(1)(iii)(B); provided, however, that such 

payment is not necessary if the seller initiates, or causes a telemarketer to initiate, calls solely to persons pursuant to §§310.4 

(b)(1)(iii)(B)(i) or (ii), and the seller does not access the National Do Not Call Registry for any other purpose. 

(b) It is a violation of this Rule for any telemarketer, on behalf of any seller, to initiate an outbound telephone call to any 

person whose telephone number is within a given area code unless that seller, either directly or through another person, first 

has paid the annual fee, required by §310.8(c), for access to the telephone numbers within that area code that are included in 

the National Do Not Call Registry; provided, however, that such payment is not necessary if the seller initiates, or causes a 

telemarketer to initiate, calls solely to persons pursuant to §§310.4(b)(1)(iii)(B)(i) or (ii), and the seller does not access the 

National Do Not Call Registry for any other purpose. 

(c) The annual fee, which must be paid by any person prior to obtaining access to the National Do Not Call Registry, is $62 

for each area code of data accessed, up to a maximum of $17,021; provided, however, that there shall be no charge to any 

person for accessing the first five area codes of data, and provided further, that there shall be no charge to any person 

engaging in or causing others to engage in outbound telephone calls to consumers and who is accessing area codes of data in 

the National Do Not Call Registry if the person is permitted to access, but is not required to access, the National Do Not Call 

Registry under this Rule, 47 CFR 64.1200, or any other Federal regulation or law. No person may participate in any 

arrangement to share the cost of accessing the National Do Not Call Registry, including any arrangement with any telemarketer 

or service provider to divide the costs to access the registry among various clients of that telemarketer or service provider. 

(d) Each person who pays, either directly or through another person, the annual fee set forth in paragraph (c) of this 

section, each person excepted under paragraph (c) from paying the annual fee, and each person excepted from paying an 

annual fee under §310.4(b)(1)(iii)(B), will be provided a unique account number that will allow that person to access the registry 

data for the selected area codes at any time for the twelve month period beginning on the first day of the month in which the 

person paid the fee (“the annual period”). To obtain access to additional area codes of data during the first six months of the 

annual period, each person required to pay the fee under paragraph (c) of this section must first pay $62 for each additional 

area code of data not initially selected. To obtain access to additional area codes of data during the second six months of the 

annual period, each person required to pay the fee under paragraph (c) of this section must first pay $31 for each additional 

area code of data not initially selected. The payment of the additional fee will permit the person to access the additional area 

codes of data for the remainder of the annual period. 

* * * * * 

(e) Access to the National Do Not Call Registry is limited to telemarketers, sellers, others engaged in or causing others to 

engage in telephone calls to consumers, service providers acting on behalf of such persons, and any government agency that 

has law enforcement authority. Prior to accessing the National Do Not Call Registry, a person must provide the identifying 

information required by the operator of the registry to collect the fee, and must certify, under penalty of law, that the person is 

accessing the registry solely to comply with the provisions of this Rule or to otherwise prevent telephone calls to telephone 

numbers on the registry. If the person is accessing the registry on behalf of sellers, that person also must identify each of the 

sellers on whose behalf it is accessing the registry, must provide each seller's unique account number for access to the national 

registry, and must certify, under penalty of law, that the sellers will be using the information gathered from the registry solely to 

comply with the provisions of this Rule or otherwise to prevent telephone calls to telephone numbers on the registry. 

[75 FR 48516, Aug. 10, 2010; 75 FR 51934, Aug. 24, 2010, as amended at 77 FR 51697, Aug. 27, 2012; 78 FR 53643, Aug. 30, 2013; 79 

FR 51478, Aug. 29, 2014; 80 FR 77560, Dec. 14, 2016; 81 FR 59845, Aug. 31, 2016; 82 FR 39534, Aug. 21, 2017]

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§310.9 Severability. 

The provisions of this Rule are separate and severable from one another. If any provision is stayed or determined to be 

invalid, it is the Commission's intention that the remaining provisions shall continue in effect.

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