UNITED STATES DISTRJCT COURT 

FOR THE MIDDLE DISTRICT OF FLORIDA 

FEDERAL TRADE C01\t1Jv1ISSION, 

Plaintiff, 

vs. 

BENEFYTT TECHNOLOGIES, INC., f/k:/a 

HEAL TH INSURANCE INNOVATIONS, 

INC., a Delaware corporation; 

HEAL TH PLAN INTERMEDIARIES 

HOLDINGS, LLC, a Delaware limited 

liability company; 

HEALTHPOCKET, INC., d/b/a 

AGILEHEAL TIDNSURANCE, a Delaware 

corporation; 

GA VIN D. SOUTHWELL, individually and 

as a former officer, director, and manager of 

Benefytt Technologies, Inc., Health Plan 

Intermediaries Holdings, LLC, and 

HealthPocket, Inc.; and 

AMYE. BRADY, individually and as a 

former vice president and manager of 

Benefytt Technologies, Inc. and Health Plan 

Intermediaries Holdings, LLC. 

Defendants. 

STIPULATED ORDER FOR 

PERMANENT INJUNCTION 

AND OTHER RELIEF 

AGAINST DEFENDANT 

GA VIND. SOUTHWELL 

Plaintiff, the Federal Trade Commission ("Commission" or "FTC'1), filed its 

Complaint for Permanent Injunction, Monetary Relief, Civil Penalties, and Other 

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Relief ("Complaint") in this matter, pursuant to Sections 5(m)(l)(A), 13(b), and 19 

of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 45(m)(l)(A), 

53(b ), 57b, the Telemarketing and Consumer Fraud and Abuse Act ("Telemarketing 

Act"), 15 U.S.C. §§ 6101-6108, and Section 5 of the Restore Online Shoppers' 

Confidence Act ("ROSCA"), 15 U.S.C. § 8404. The Commission and Defendant 

Gavin D. Southwell ("Settling Individual Defendant") stipulate to the entry of this 

Stipulated Order for Permanent Injunction and Other Relief ("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 Defendants participated in deceptive, unfair, and 

abusive acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, 

the FTC's Telemarketing Sales Rule ("TSR"), 16 C.F.R. Part 310, as amended, and 

Section 4 of ROSCA, 15 U.S.C. § 8403, in connection with the advertising, 

marketing, telemarketing, promoting, offering for sale, or sale of association 

memberships and related health products, including short-term medical plans, 

limited benefit plans, and medical discount plans. 

3. Settling Individual Defendant neither admits nor denies any of the allegations 

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in the Complaint, except as specifically stated in this Order. Only for purposes of 

this action, Settling Individual Defendant admits the facts necessary to establish 

jurisdiction. 

4. Settling Individual Defendant waives any claim that he 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 his own costs and attorney 

fees. 

5. Settling Individual Defendant waives 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. "ACA" means the Patient Protection and Affordable Care Act of 2010, 

Pub. L. No 111-148, 124 Stat. 119. 

B. "Billing Information" means any data that enables any person to 

access a customer's account, such as a credit card, checking, savings, share or 

similar account, utility bill, mortgage loan account, or debit card. 

C. "Charge,'' "Charged," or "Charging" means any attempt to collect 

money or other consideration from a consumer, including causing Billing 

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Information to be submitted for payment, including against the consumer's credit 

card, debit card, bank account, telephone bill, or other account. 

D. HClear(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. 

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5. The disclosure must use diction and syntax understandable to 

ordinary consumers and 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-toface communications. 

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. 

E. "Defendants" means Individual Defendants and Corporate 

Defendants, individually, collectively, or in any combination. 

1. "Corporate Defendants" means Benefytt Technologies, Inc., 

f/k/a Health Insurance Innovations, Inc., Health Plan Intermediaries Holdings, LLC, 

HealthPocket, Inc. d/b/a AgileHealthlnsurance, and their successors and assigns. 

2. "Individual Defendants" means Gavin D. Southwell and Amy 

E. Brady. 

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F. "Entity-Specific Do Not Call List" means a list of telephone numbers 

maintained by a Seller or Telemarketer of persons who have previously stated that 

they do not wish to receive Outbound Telephone Calls made by or on behalf of the 

Seller or Telemarketer. 

G. "Established Business Relationshipu means a relationship between 

the Seller and a person based on: (a) the person's purchase, rental, or lease of the 

Seller's goods or services or a financial transaction between the person and Seller, 

within the 18 months immediately preceding the date of the Telemarketing call; or 

(b) the person's inquiry or application regarding a product or service offered by the 

Seller, within the 3 months immediately preceding the date of a Telemarketing call. 

H. "Healthcare-Related Product" means any program, plan, 

membership, card, product, insurance policy, or other good or service, that offers, 

or purports to offer, health insurance, discounts, savings, or benefits on healthcare, 

or access to such health insurance, discounts, savings, or benefits. 

I. "National Do Not Call Registry" means the "do-not-call" registry of 

telephone numbers maintained by the Commission pursuant to 16 C.F .R. § 

310.4(b )( 1 )(iii)(B). 

J. "Negative Option Feature" means, in an offer or agreement to sell or 

provide any good or service, a provision under which the consumer's silence or 

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failure to take affirmative action to reject a good or service or to cancel the 

agreement is interpreted by the seller or provider as acceptance or continuing 

acceptance of the offer. 

K. "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. 

L. "Seller" means any person who, in connection with a Telemarketing 

transaction, provides, offers to provide, or an·anges for others to provide goods or 

services to the customer in exchange for consideration. 

M. "Settling Individual Defendant" means Gavin D. Southwell. 

N. "Telemarketer" means any person who, in connection with 

Telemarketing, initiates or receives telephone calls to or from a customer or donor. 

0. "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. 

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ORDER 

I. BAN ON HEALTHCARE-RELATED PRODUCTS 

IT IS THEREFORE ORDERED that Settling Individual Defendant is 

pennanently restrained and enjoined from advertising, marketing, promoting, 

offering for sale, or selling, or assisting in the advertising, marketing, promoting, 

offering for sale, or selling, of any Healthcare-Related Product. 

II. PROHIBITED BUSINESS PRACTICES 

IT IS FURTHER ORDERED that Settling Individual Defendant, Settling 

Individual Defendant's officers, agents, employees, and attorneys, and all other 

persons in active concert or participation with any of them, who receive actual 

notice of this Order, whether acting directly or indirectly, in connection with 

advertising, marketing, promoting, or offering for sale any good or service, are 

permanently restrained and enjoined from: 

A. Misrepresenting or assisting others in misrepresenting, expressly or by 

implication: 

1. any cost to the consumer to purchase, receive, use, or return the 

good or service; 

2. that any good or service is included at no additional cost with 

the purchase of another good or service; 

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3. that any good or service is a qualified health plan under the 

ACA or is "Obamacare"; 

4. that any good or service provides benefits equivalent to a 

qualified health plan under the ACA; 

5. that any good or service is comprehensive health insurance or 

major medical insurance, or provides benefits equivalent to such 

insurance; or 

6. any other fact material to consumers concerning any good or 

service, such as: the total costs; any material restrictions, limitations, 

or conditions; or any material aspect of its performance, efficacy, 

nature, or central characteristics; 

B. Making any representation, or assisting others in making any 

representation, expressly or by implication, unless the representation is 

non-misleading, and, at the time such representation is made, Settling Individual 

Defendant possesses and relies upon competent and reliable evidence that is 

sufficient in quality and quantity to substantiate that the representation is true, 

regarding any good or service; 

C. Failing to disclose, or assisting others in failing to disclose, Clearly and 

Conspicuously, before requesting any Billing Information from a consumer: 

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I. the complete name of each good or service to be purchased, the 

name of the seller or provider of each good or service to be purchased, 

and, if the name of the seller or provider will not appear on billing 

statements, the billing descriptor that will appear on such statements; 

2. a description of each good or service; 

3. all costs and fees, itemized by each good or service to be 

purchased; 

4. all applicable exclusions, limitations, or waiting periods related 

to the use of any good or service; 

5. the terms of any refund, cancellation, exchange, or repurchase 

policy for any good or service, including the extent to which the 

consumer must take affirmative action to avoid any Charges; and 

6. the simple cancellation method to stop any recurring Charges, as 

required by Subsection II.G; 

D. Causing any consumer to be billed for any good or service without 

having previously obtained the consumer's express informed consent; 

E. Failing to send the consumer: 

1. Immediately after the consumer's submission of an online order, 

written confirmation of the transaction by email if Settling Individual 

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Defendant is in possession of the consumer's email address. The 

email must Clearly and Conspicuously disclose all the information 

required by Subsection II.C, and contain a subject line reading "Order 

Confirmation" along with the name of the good(s) or service(s), and no 

additional information. If Settling Individual Defendant is not in 

possession of the conslll1ler's email address, such Defendant must 

provide confirmation to online purchasers or cancel the transaction as 

set forth in Subsection II.E.2; or 

2. Within 2 days after receipt of the consumer's order by mail or 

telephone, or where a consumer who submitted an order online did not 

provide Settling Individual Defendant with an email address, a written 

confirmation of the transaction, either by email or first class mail. 

The email or letter must Clearly and Conspicuously disclose all the 

information required by Subsection II.C. The subject line of the email 

must Clearly and Conspicuously state "Order Confirmation" along 

with the name of the good(s) or service(s), and nothing else. The 

outside of the envelope must Clearly and Conspicuously state "Order 

Confirmation" along with "Important Information About Your Recent 

Purchase and Enrollment," and no additional information other than 

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the consumer's address, the sending Defendant's return address, and 

postage. Provided, however, that if Settling Individual Defendant is 

not in possession of either an email address or a physical address for a 

consumer and cannot obtain such infonnation and send confirmation of 

the purchase within 2 days after receipt of an order pursuant to this 

Subsection, such Defendant must immediately cancel the consumer's 

purchase and refund all charges; 

F. Representing directly or indirectly, expressly or by implication, that 

any good or service that includes a Negative Option Feature is being offered on a 

free, trial, no obligation, reduced, or discounted basis, without disclosing Clearly 

and Conspicuously: 

1. The extent to which the consumer must take any affirmative 

action to avoid any Charges: a) for the offered good or service, b) of an 

increased amount after the trial or promotional period ends, and c) on a 

recurring basis; 

2. The total cost ( or range of costs) the consumer will be Charged 

and, if applicable, the frequency of such Charges unless the conswner 

timely takes step~ to prevent or stop such Charges; and 

3. The deadline(s) (by date or frequency) by which the consumer 

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must affirmatively act in order to stop all recurring Charges. 

G. Failing to provide a simple and easy-to-use method by which 

consumers can cancel the Charge for any good or service; such method must not be 

difficult, costly, confusing, or time consuming, and must be at least as simple as the 

method the consumer used to initiate the Charge(s); 

H. Failing to promptly cancel a consumer's purchase of any good or 

service after receiving the consumer's cancellation request; or 

I. Causing a consumer, after the consumer requests to cancel any good or 

service, to continue being billed for any other good or service without obtaining that 

consumer's express informed. consent. 

III. PROHIBITION AGAINST ABUSIVE TELEMARKETING PRACTICES 

IT IS FURTHER ORDERED that Settling Individual Defendant, Settling 

Individual Defendant's officers, agents, employees, and attorneys, and all other 

persons in active concert or participation with any of them, who receive actual 

notice of this Order, whether acting directly or indirectly, are permanently 

restrained and enjoined from engaging in, or assisting and facilitating others in 

engaging in, any of the following practices: 

A. Initiating any Outbound Telephone Call, or causing others to initiate 

any Outbound Telephone Call, in which the Telemarketer fails to disclose 

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truthfully, promptly, and in a Clear and Conspicuous manner to the person 

receiving a call: 

1. the identity of the Seller; 

2. that the purpose of the call is to sell goods or services; and 

3. the nature of the goods or services; 

B. Abandoning, or causing others to abandon, any Outbound Telephone 

Call to a person by failing to connect the call to a live operator within 2 seconds of 

the person's completed greeting, unless the Seller or Telemarketer proves that the 

following 4 conditions are met: 

1. the Seller or Telemarketer employs technology that ensures 

abandonment of no more than 3 percent of all calls answered by a 

person, measured over the duration of a single calling campaign, if less 

than 3 0 days, or separately over each successive 30-day period or 

portion thereof that the campaign continues; 

2. the Seller or Telemarketer, for each Telemarketing call placed, 

allows the telephone to ring for at least 15 seconds or 4 rings before 

disconnecting an unanswered call; 

3. whenever a live operator is not available to speak with the 

person answering the call within 2 seconds after the person's 

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completed greeting, the Seller promptly plays a recorded message that 

states the Seller's name and telephone riumber; and 

4. the Seller r~tains records establishing compliance with the 

preceding 3 conditions; 

C. Initiating any Outbound Telephone Calls, or causing others to initiate 

any Outbound Telephone Calls, that delivers a prerecorded message, other than a 

prerecorded message permitted for compliance with Subsection 111.B.3 of this 

Order, unless the Seller or Telemarketer proves that: 

1. Before making 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: 

a. 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; 

b. the Seller obtained without requiring, directly or indirectly, 

that the agreement be executed as a condition of purchasing any 

good or service; 

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c. evidences the willingness of the recipient of the call to 

receive calls that deliver prerecorded messages by or on behalf 

of the specific Seller; and 

d. includes such person's telephone number and signature; and 

2. In any such call to induce the purchase of any good or service, 

the Seller or Telemarketer: 

a. allows the telephone to ring for at least 15 seconds or 4 

rings before disconnecting an unanswered call; and 

b. within 2 seconds after the completed greeting of the 

person called, plays a prerecorded message that promptly 

discloses the Seller's identity, that the purpose of the call is to 

sell goods or services, and the nature of the goods or services, 

followed immediately by a disclosure of one or both of the 

following: 

1. 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 optout mechanism to assert a do-not-call request at any time 

during the message. The mechanism must: 

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(a) automatically add the number called to the 

Seller's Entity-Specific Do Not Call List; 

(b) once invoked, immediately disconnect the 

call; and 

( c) be available for use at any time during the 

. message; and 

ii. 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-number to assert a do-not-call 

request. The number provided must connect directly to 

an automated interactive voice or keypress-acti vated optout mechanism that: 

(a) automatically adds the number called to the 

Seller's Entity-Specific Do Not Call List; 

(b) immediately thereafter disconnects the call; 

- and 

( c) is accessible at any time throughout the 

duration of the Telemarketing campaign; 

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D. Initiating any Outbound Telephone Calls, or causing others to initiate 

Outbound Telephone Calls, to any person's telephone number on the National Do 

Not Call Registry, unless the Seller or Telemarketer proves that: 

1. the Seller has obtained the express agreement, in writing, of 

such person to place calls to that person. Such written agreement 

must clearly evidence such person's authorization that calls made by or 

on behalf of the Seller may be placed to that person, and must include 

the telephone number to which the calls may be placed and the 

signature of that person; or 

2. the Seller has an Established Business Relationship with such 

person, and that person has not previously stated that he or she does 

not wish to receive Outbound Telephone Calls made by or on behalf of 

the Seller; 

E. Initiating Outbound Telephone Calls, or causing another to initiate 

Outbound Telephone Calls, to a person who has previously stated that he or she 

does not wish to receive an Outbound Telephone Call made by or on behalf of the 

Seller; 

F, Initiating Outbound Telephone Calls, or causing others to initiate 

Outbound Telephone Calls, to a telephone number within a given area code when 

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the Seller has not, either directly or through another person, paid the required 

annual fee for access to the telephone numbers within that area code that are 

included in the National Do Not Call Registry unless the telephone call is: 

1. a solicitation to induce charitable contributions; 

2. to a business; 

3. to persons who have given the Seller their express agreement, in 

writing and signed, to receive calls from Seller; or 

4. to persons who have an Established Business Relationship with 

Seller; or 

G. Violating the Telemarketing Sales Rule, 16 C.F.R. Part 310, attached 

as Appendix A to this Order. _ 

IV. CUSTOMER INFORMATION 

IT IS FURTHER ORDERED that Settling Individual Defendant is 

permanently restrained and enjoined from directly or indirectly disclosing, using, or 

benefitting from customer infonnation that any Defendant obtained prior to entry of 

this Order, provided that Settling Individual Defendant may use such information to 

otherwise comply with the terms of this Order. Such customer information 

includes the name, address, telephone number, email address, Social Security 

number, other identifying information, sensitive health information, or any data that 

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enables access to a customer's account (including a credit card, bank account, or 

other financial account). 

V. COOPERATION 

IT IS FURTHER ORDERED that Settling Individual Defendant must fully 

cooperate with representatives of the Commission in this case and in any 

investigation related to or associated with the transactions or the occurrences that 

are the subject of the Complaint. Settling Individual Defendant must provide 

truthful and complete infonnation, evidence, and testimony. Settling Individual 

Defendant must appear for interviews, discovery, hearings, trials, and any other 

proceedings that a Commission representative may reasonably request upon 5 days 

written notice, or other reasonable notice, at such places and times as a Commission 

representative may designate, without the service of a subpoena. 

VI.ORDERACKNOWLEDGMENTS 

IT IS FURTHER ORDERED that Settling Individual Defendant obtain 

acknowledgments of receipt of this Order: 

A. Settling Individual Defendant, within 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 20 years after entry of this Order, Settling Individual Defendant for 

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any business that such Defendant, individually or collectively with any other 

Defendant, is the majority owner or controls directly or indirectly, must deliver a 

copy of this Order to: (1) all principals, officers, directors, and LLC managers and 

members; (2) all employees having managerial responsibilities for conduct related 

to the subject matter of the Order and all agents and representatives who participate 

in conduct related to the subject matter of the Order; and (3) any business entity 

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

Reporting. Delivery must occur within 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 Settling Individual Defendant 

delivered a copy of this Order, Settling Individual Defendant must obtain, within 30 

days, a signed and dated acknowledgment of receipt of this Order. 

VII. COMPLIANCE REPORTING 

IT IS FURTHER ORDERED that Settling Individual Defendant make timely 

submissions to the Commission: 

A. One year after entry of this Order, Settling Individual Defendant must 

submit a compliance report, sworn under penalty of perjury: 

1. Settling Individual Defendant must: (a) identify the primary 

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physical, postal, and email address and telephone number, as designated points of 

contact, which representatives of the Commission may use to communicate with 

Settling Individual Defendant; (b) identify all of Settling Individual Defendant's 

businesses by all of their names, telephone numbers, and physical, postal, email, 

and Internet addresses; (c) describe the activities of each business, including the 

goods and services offered, the means of advertising, marketing, and sales, and the 

involvement of any other Defendant {which Settling Individual Defendant must 

describe ifhe knows or should know due to his own involvement); (d) describe in 

detail whether and how Settling Individual Defendant is in compliance with each 

Section of this Order; and (e) provide a copy of each Order Acknowledgment 

obtained pursuant to this Order, unless previously submitted to the Commission. 

2. Additionally, Settling Individual Defendant must: (a) identify 

all telephone numbers and all physical, postal, email and Internet addresses, 

including all residences; (b) identify all business activities, including any business 

for which Settling Individual Defendant performs services whether as an employee 

or otheiwise and any entity in which Settling Individual Defendant has any 

ownership interest; and (c) describe in detail Settling Individual Defendant's 

involvement in each such business, including title, role, responsibilities, 

participation, authority, control, and any ownership. 

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B. For 15 years after entry of this Order, Settling Individual Defendant 

must submit a compliance notice, sworn under penalty of perjury, within 14 days of 

any change in the following: 

1. Settling Individual Defendant must report any change in: (a} 

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

Individual 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. 

2. Additionally, Settling Individual Defendant must report any 

change in: (a) name, including aliases or fictitious name, or residence address; or 

(b) title or role in any business-activity, including any business for which Settling 

Individual Defendant performs services whether as an employee or othe1wise and 

any entity in which Settling Individual Defendant has any ownership interest, and 

identify the name, physical address, and any Internet address of the business or 

entity. 

C. Settling Individual Defendant must submit to the Commission notice 

of the filing of any banlcruptcy petition, insolvency proceeding, or similar 

proceeding by or against him within 14 days of its filing. 

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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. 

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. Benefytt Technologies, Inc., Matter No. 1923141. 

VIII. RECORDKEEPING 

IT IS FURTHER ORDERED that Settling Individual Defendant must create 

certain records for 20 years after entry of the Order, and retain each such record for 

5 years. Specifically, Settling Individual Defendant for any business that he, 

individually or collectively with any other Defendant, is a majority owner or 

controls directly or indirectly, must create and retain the following records: 

A. accounting records showing the revenues from all goods or services 

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sold; 

B. personnel records showing, for each person providing services, 

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. records of all consumer complaints concerning the subject matter of 

the Order and refund requests, whether received directly or indirectly, such as 

through a third party, and any response; 

D. all records necessary to demonstrate full compliance with each 

provision of this Order, including; 

E. for express, informed consent obtained in writing, documentation that 

shows such consent, including the date and the consumer's name, telephone 

number, and Billing Information; 

F. for express, informed consent obtained orally, an unedited voice 

recording that contains such consent, retrievable by date; and 

G. a copy of all advertisements or other marketing material related to any 

good or service sold. 

IX. COMPLIANCE MONITORING 

IT IS FURTHER ORDERED that, for the purpose of monitoring Settling 

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Individual Defendant's compliance with this Order and any failure to transfer any 

assets as required by this Order: 

A. Within 14 days of receipt of a written request from a representative of 

the Commission, Settling Individual 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 is also authorized to obtain discovery, without 

further leave of 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 is authorized to 

communicate directly with Settling Individual Defendant. Settling Individual 

Defendant must permit representatives of the Commission to interview any 

employee or other person affiliated with Settling Individual Defendant who has 

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

C. The Commission _may use all other lawful means, including posing, 

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

to Settling Individual Defendant, without the necessity of identification or prior 

notice. Nothing in this Order limits the Commission's lawful use of compulsory 

Page 26 of29 

Case 8:22-cv-01794-TPB-JSS Document 14 Filed 08/11/22 Page 26 of 44 PageID 406 
process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-l. 

D. Upon written request from a representative of the Commission, any 

consumer reporting agency must furnish consumer reports concerning Settling 

Individual Defendant, pursuant to Section 604(1) of the Fair Credit Reporting Act, 

15 U.S.C. §168lb(a)(l). 

X. 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. 

SO ORDERED this \ tt'::' day of _ .... Av~""'~-$__.\;; _ _.,, 2022. 

gbe~ U; ED STATES DISTRICT JUDGE 

Page 27 of29 

Case 8:22-cv-01794-TPB-JSS Document 14 Filed 08/11/22 Page 27 of 44 PageID 407 
SO STIPULATED AND AGREED: 

FOR PLAINTIFF: 

Isl Matthew G. Schiltz Date: 8/8/2022 

Matthew G. Schiltz 

Claire E.W. Stewart 

Elizabeth C, Scott 

Federal Trade Commission, Midwest Region 

230 S. Dearborn Street, Suite 3030 

Chicago, Illinois 60604 

312.960.5619 

mschiltz@ftc.gov; cstewart@ftc.gov; escott@ftc.gov 

Attorneys for Plaintiff 

Federal Trade Commission 

FOR SETTLING INDIVIDUAL DEFENDANT: 

Eric S. Berman 

Daniel S. Blynn 

Katherine Wright Morrone 

VenableLLP 

----== s 

600 Massachusetts Avenue, N.W. 

Washington, DC 20001 

Phone: (202) 344-4661 

ESBennan@Venable.com 

DSBlynn@Venable.com 

KWMorrone@Venable.com 

Attorneys for Defendant Gavin D. Southwell 

Page 28 of29 

Case 8:22-cv-01794-TPB-JSS Document 14 Filed 08/11/22 Page 28 of 44 PageID 408 
SETTLING INDIVIDUAL DEFENDANT: 

Date: 

Gavi 

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Federal Trade Commission 

PART 310-TELEMARKETING SALES 

RULE 

Sec. 

310.1 Scope of regulations in this part. 

310.2 Definitions. 

310.3 Deceptive telemarketing acts or practices. 

310.4 Abusive telemarketing acts or prac- tices. 

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. 

§310.2 

§ 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. 

§ 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. 

385 

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§310.2 

(bl Attorney General means the chief 

legal officer of a state. 

(c) Billing infonnation 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 telephqne. 

(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(21) transfer of the value of 

cash received from one person to an­ other 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 per­ son 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. 

(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(21 of the Electronic 

Signatures in Global and National 

Commerce Act (15 U.S.C. 7006(2)) form 

16 CFR Ch. I (1-1-21 Edition) 

that can be used to add funds to a general-use prepaid card, as defined in 

Regulation E, 12 CFR 1005.2, or an ac­ count 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 dil·ectly 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 

th ing of value. 

(i) Commission means the Federal 

Trade Commission. 

(j) Credit means the right granted by a c1·editor 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 ex­ isting for the purpose of obtaining 

money, property, labor, or services on c redit. 

(1) 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 oper­ ator of that system. 

(n) Customer means any person who is 

or may be required to pay for goods or se1·vices 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 unse­ cured creditors or debt collectors, including, but not limited t o, 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, 01· lease of the seller's goods or services or a financial transaction between the 

386 

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Federal Trade Commission 

consumer and seller, within the eight­ een (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 fo1· 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 servi'ces 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 g oods 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. 

§310.2 

(z) Preacquired account information 

means any information that enables a seller or telemarketer to cause a charge to be placed against a cus­ tomer's or donor's account without obtail1ing 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 re­ ceive an item and, at the time of the 

offe1· or purported offer, the telemarketer does not identify the specific 

item that the person will receive. 

(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 trans­ action, 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 Sta tes, t he District of Colum­ bia, Puerto Rico, the Northern Mariana Islands, and any territory or possession 

of the United States. 

(ff) Telemarketer means any person 

who, in connection with telemarket ing, 

initiates or receives telephone calls to or from a customer or donor. (gg) Telemarketing means a plan, pro­ gram, or campaign which is conducted 

387 

APPENDIX A 

Case 8:22-cv-01794-TPB-JSS Document 14 Filed 08/11/22 Page 32 of 44 PageID 412 
§310.3 

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 cus­ tomer'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 con­ tinuation 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 so­ licitation made by or on ·behalf of the same seller as in the initial transaction, regardless of whether the ini­ tial 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] 

§ 310.3 Deceptive telemarketing acts or practices. 

(al 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: 

16 CFR Ch. I (1-1-21 Edition) 

(1) Before a customer consents to 

payasg for goods or services offered, 

failing to disclose truthfully, in a clear 

and conspicuous manner, the following 

material information: 

(i) The total costs to purchase, re­ ceive, or use, and the quantity of, any 

goods or services that are the subject 

of the sales offer; 660 

(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, excha11ge, 

or repurchase policy, a statement of all 

material terms and conditions of such 

policy; 

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

oso 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 r equired by 

§ 310.3(a)(l) 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 se1ler or 

telemarketer must make the d1sclosures required by § 310.3(a)(1) before the consumer enrolls in an offered program. eoo For offers of consumer credit products 

s11biect 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)(l)(i) of this Rule. 

388 

APPENDIX A 

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Federal Trade Commission 

(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 serv­ ices 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 cus­ tomer's creditors or debt collectors, 

the time by which the debt relief serv­ ice provider will make a bona fide settlement offer to each of them; 

(Bl 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 se1-vice relies upon or re­ sults in the customer's failure to make 

timely payments to creditors or debt 

collectors, that the use of the debt re­ lief 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 cus­ tomer to place funds in an account at an insured financial institution, that 

the customer owns the funds held in 

§310.3 

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 

characte1·istics 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 cus­ tomer 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 cus­ tomer must take to avoid the charge(s); or 

389 

APPENDIX A 

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§310.3 

(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 cus­ tomer 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 cus­ tomer's creditworthiness; the 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 con­ tribution, 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 au­ thorization shall be deemed verifiable 

if any of the following means is em­ ployed: 

(i) Express written authorization by 

the customer or donor, which includes 

the customer's or donor's signature;ss3 

(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 

ss1 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. 

683 For purposes of this Rule, the term 

"signature" shall include an electronic or 

digital form of signature, to the extent that 

such form of sign a tw·e ls recognized as a valid signature under applicable federal law 

or state contract law. 

16 CFR Ch. I (1-1-21 Edition) 

donor's authorization of payment for 

the goods or services or charitable con­ tribution that are the subject of the 

telemarketing transaction and the cus­ tomer'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; 

CG) 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 t elemarketer or charitable organization in the event the confirmation is 

inaccurate; provided, however, t hat 

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. 

390 

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Federal Trade Commission 

(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 mer­ chant; 

(2) Any person to employ, solicit, or otherwise cause a merchant, or an em­ ployee, 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 (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 pract ice, and a violation of this 

Rule for any t elemarketer 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 

§310.4 

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 re­ quired to win a prize or to participate 

in a prize promotion; or 

( 6) A charitable organization's or telemarketer's affiliation with, or en­ dorsement or sponsorship by, any per­ son or government entity. 

[75 FR 48516, Aug. 10, 2010, as amended at 80 

FR 77558, Dec. 14, 2015) 

§ 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 r e­ porting agency demonstrating that the promised results have been achieved, such report having been issued more than six months after the t·esults 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 per­ son for goods or services represented to recover or otherwise assist in the r e­ turn 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 de livered to 

that person. This provision shall not 

391 

APPENDIX A 

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§310.4 

apply to goods or services provided t o 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 re­ negotiated, 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 exe­ cuted by the customer; 

(B) The customer has made at least one payment pursuant to that settle­ ment 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 

(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 renego­ tiation, settlement, reduction, or other 

alteration of the terms of payment or other terms of a debt , pr ovided that: 

16 CFR Ch. I (1-1-21 Edition) 

(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 ac­ count is not owned or controlled by, or in any way affiliated with, the debt re­ lief service; 

(D ) The entity administering the ac­ count 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 con­ sideration, unencrypted consumer ac­ count 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 cha1itable 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 cus­ tomer or donor to be charged for the goods or services or charitable con­ tribution 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 transact ion involving preacquired account information and a free-to-pay conversion fea­ ture, 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) Obta in from the customer his or her express agreement to be charged 

for the goods or services and to be 

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Federal Trade Commission 

charged using the account number pursuant to paragraph (a)(7)(i)(A) of this 

section; and, 

(C) Make and maintain an audio re­ cording 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 ac­ count 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 sellei· or charitable organization on behalf of which a telemarketing call is placed, and the sell­ er's or charitable organization's cus­ tomer or donor service telephone mun­ ber, which is answered during regular 

business hours; 

(9) Creating or causing to be created, 

directly or indirectly, a remotely cre­ ated 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 

§310.4 

to cause a telemarketer t o engage in, the following conduct: 

(i) Causing any telephone to ring, or engaging any person in telephone con­ versation, 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 per­ son'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 paragraph (b){l)(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; re­ quiring the person to listen to a sales 

pitch before accepting the request; as­ sessing a charge or fee for honoring the 

request; requiring a person to call a different number to submit the re­ quest; and r equiring 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, main­ tained by t he Commission, of persons 

who do not wish to receive outbound 

telephone calls to induce the purchase 

of goods or services unless the seller or t elemarketer: 

(I) 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 au­ thorization 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 signature ss4 of 

that person; or 

664 F or purposes of this Rule, the t erm "sign atm•e" shall include a n electronic or 

digital form of signa ture . to t be e xtent t hat 

such form of signature is r ecognized a s a Continued 

393 

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§310.4 

(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)(l)(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 mes­ sage, 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 au­ thorize the seller to place prerecorded 

calls to such person; 

(ii) The seller obtained without re­ quiring, 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;666 and 

(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 unan­ swered call; and 

valid signature under applicable federal law or state contract law. 665 For purposes of this R\lle, the term " signature" shall include an electronic or digital form of signatru·e, to the extent that 

such form of signature Is r ecognized as a valid signature under applicable federal law or state contract law. 

16 CFR Ch. I (1-1-21 Edition) 

(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: 

(Al In the case of a call that could be 

answered in person by a consumer, that 

the person called can use an automat ed 

interactive voice and/or keypress-activated opt-out mechanism to assert a Do Not Call request pursuant to 

§ 310.4(b)(l)(iii)(A) at any time during 

the message. The mechanism must: 

(1) Automatically add the number called to the seller's ent ity-specific Do 

Not Call list; 

(2) Once invoked, immediately dis­ connect the call; and 

(3) Be available for use at any time 

during the message; and 

(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)(l)(iii)(A). The 

number provided must connect directly 

to an automated int eractive 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 dis­ connects the call; and 

(3) Is accessible a t any time through­ out 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 paragrapl1 (V) shall not be deemed to violat e § 310.4(b)(l)(iv) of this part. (D) This paragraph (v) shall not apply 

to any outbound t e lephone call that delivers a prerecorded healthcare mes­ sage made by, or on behalf of, a covered 

entity or its business associate, as those terms are defined in the HIP AA 

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 s ell, rent, lease, pur­ chase, or use any list established to 

comply with §310.4(b)(l)(iii)(A), or 

394 

APPENDIX A 

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Federal Trade Commission 

maintained by the Commission pursuant to §310.4(b)(l)(iii)(B), for any purpose except compliance with the provisions of this Rule or otherwise to prevent telephone calls to telephone num­ bers on such lists. 

(3) A seller or telemarketer will not 

be liable for violating § 310.4(b)(l)(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)(l)(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 com­ pliance with§ 310.4(b)(l)(iii)(A); 

(iv) The seller or a telemarketer uses a process to prevent telemarketing to 

any telephone number on any list es­ tablished pursuant to § 310.4(b)(3)(iii) or 310.4(b)(l)(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, mon­ itors and enforces compliance with the 

procedures established pursuant to 

§ 310.4(b)(3)(i); and · (vi) Any subsequent call otherwise 

violating paragraph (b)(l)(ii) or (iii) of 

this section is the result of error and 

not of failure to obtain any information necessary to comply with a re­ quest pursuant to paragraph 

(b}(l}(iii)(A) of this section not to re­ ceive 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)(l)(iv) if: 

(i) The seller or telemarket er em­ ploys 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-

§310,4 

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 per­ son 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 

(iv) The seller or telemarketer, in accordance with §310.5(b}-(d}, retains 

records establishing compliance with 

§ 310.4(b )( 4)(1)-(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. 

(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 

pe1·son 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 serv­ ices; 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 

disclosur e must be made before or in 

conjunction with the description of the 

prize to the person called. If requested 

668 This provision does not affect a.ny seller's or telemarketer's obligation to comply 

with relevant state and federa l laws, including but not limited to the TCPA. 47 U.S.C. 

227, and 47 CFR part 64.1200. 

395 

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§310.5 

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 serv­ ices, 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 tele­ marketing transaction. 

(e) Required oral disclosures in charitable solicitations. It is an abusive tele­ marketing 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 or­ ganization 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, a s amended at 76 

FR 58716, Sept. 22, 2011; 80 FR 77559, Dec. 14, 

2015] 

§ 310.5 Recordkeeping requirements. 

{a) Any seller or telemarketer shall 

keep, for a period of 24 months from 

the date the record is produced, t he 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 serv­ ices were shipped or provided, and the 

amount paid by the customer for the 

goods or services;667 

(4) The name, any fictitious name used, the last known home address and 

667 For offers of consumer ere di t products 

subject t o 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 i n Lending Act, 

and Regula tion Z , shall consti tute compliance with § 310.5(a)(3) of this Rule. 

16 CFR Ch. I (1-1-21 Edition) 

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 busi­ ness. Failure to keep all records re­ quired by § 310.S(a) shall be a violation 

of this Rule. 

(c) The seller and the tel emarketer 

calling on behalf of the seller may, by 

written agreement, allocate responsibility between themselves for the rec­ ordkeeping 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)(l)-(3) and (5); the t elemarketer shall be responsible for com­ plying with §310.5(a)(4). 

(d) In the event of any dissolution or 

termination of the seller's or t elemarketer's business, the principal of 

that seller or telemarketer shall main­ tai11 all records as required under t his section. In the event of any sale, as­ signment, or other change in ownership 

of the seller's or t elemarketer's business, t he successor business shall ma int ain all records required under this section. 

§ 310.6 Exemptions, 

(a ) Solicitations to induce charitable 

contributions via outbound telephone 

calls are not covered by 

§ 310.4(b)(l )(iii)(B) of this Rule. 

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

396 

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Federal Trade Commission 

(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 re­ quirements of §§ 310.4(a)(l), (a)(7), (b), and (o); 

(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 "Disclo­ sure Requirements and · Prohibitions 

Concerning Business Opportunities," 

("Business Opportunity Rule") 16 CFR 

part 437, provided, however, that this 

exemption does not apply to the re­ quirements of §§ 310.4(a)(l), (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 re­ quired, 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)(l), (a)(7), (b), and (c); 

(4) Telephone calls initiated by a cus­ tomer 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 cus­ tomer 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 )(l)(vi) or §310.4(a)(2) through (4); 

(ii) The requirements of §310.4(a)(9) 

or (10); or 

§310.7 

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

(6l Telephone calls initiated by a cus­ tomer 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)(l), 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 serv­ ices, business opportunities other than 

business arrangements covered by the 

Franchise Rule or Business Opportunity Rule, or goods or services described in § 310.3(a)(l)(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)(l)(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. 11, 2015] 

§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 a ction under 

this Rule. The notice shall be sent to 

397 

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§310.8 

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 no­ tice 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 crimina l statute of such state. 

§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.B(c), for access to telephone num­ bers within that area code that are included in the National Do Not Call 

Registry maintained by the Commission under § 310.4(b)(1)(11i)(B); provided, 

however, that such payment is not nec­ essary if the seller initiates, or causes a telemarketer to initiate, calls solely 

to persons pursuant to 

§§310.4(b)(l)(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 un­ less that seller, either directly or through another person, first has paid 

the annual fee, required by §310.B(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)(l)(iii)(B)(i) or (ii), and the 

seller does not access the National Do 

16 CFR Ch. I (1-1-21 Edition) 

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 $66 for each area code of 

data accessed, up to a maximum of 

$18,044; 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 permitt ed 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 anangement to share the 

cost of accessing the National Do Not 

Call Registry, including any arrangement with any telemarketer or service 

provider t o 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)(l)(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 per­ son required to pay the fee under paragraph (cl of this section must first pay 

$66 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 an­ nual period, each person required to 

pay the fee under paragraph (c) of this 

section must fil•st pay $33 for each ad­ ditional area code of data not initially 

selected. The payment of the additional fee will permit the person to ac­ cess the additional area codes of da ta 

for the remainder of the annual period. 

398 

APPENDIX A 

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Federal Trade Commission 

(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 access­ ing 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 num­ bers 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; 

83 FR 46640. Sept. 14, 2018; 84 FR 44687, Aug. 

27, 2019; 85 FR 62597, Oct. 5, 2020) 

§310,9 Severability. 

The provisions of this Rule are separate and severable from one another. If 

any provision is stayed qr determined 

to be invalid, it is the Commission's intention that the remaining provisions 

shall continue in effect. 

399 

APPENDIX A 

§311.3 

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