UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

vs. 

SIMPLE HEALTH PLANS LLC, a Florida limited 

liability company; 

HEALTH BENEFITS ONE LLC, a Florida limited 

liability company, also d/b/a Health Benefits Center, 

Simple Health, Simple Health Plans, Simple 

Insurance, Simple Insurance Plans, Simple Auto, 

Simple Home, Simple Home Plans, Simple Care, 

Simple Life, and National Dental Savings; 

HEALTH CENTER MANAGEMENT LLC, a 

Florida limited liability company; 

INNOVATIVE CUSTOMER CARE LLC, a Florida 

limited liability company; 

SIMPLE INSURANCE LEADS LLC, a Florida 

limited liability company, also d/b/a Health 

Insurance Services; 

SENIOR BENEFITS ONE LLC, a Florida limited 

liability company; 

STEVEN J. DORFMAN, individually and as an 

officer, member, or manager of SIMPLE HEALTH 

PLANS LLC, HEALTH BENEFITS ONE LLC, 

HEALTH CENTER MANAGEMENT LLC, 

INNOVATIVE CUSTOMER CARE LLC, SIMPLE 

INSURANCE LEADS LLC, and SENIOR 

BENEFITS ONE LLC; and 

CANDIDA L. GIROUARD, individually and as an 

officer or manager of SIMPLE HEALTH PLANS 

LLC, HEALTH BENEFITS ONE LLC, HEALTH 

CENTER MANAGEMENT LLC, INNOVATIVE 

CUSTOMER CARE LLC, SIMPLE INSURANCE 

LEADS LLC, and SENIOR BENEFITS ONE LLC; 

Case No.: 18-cv-62593-DPG 

STIPULATED ORDER FOR 

PERMANENT INJUNCTION AND 

SUSPENDED MONETARY 

JUDGMENT AS TO DEFENDANT 

CANDIDA L. GIROUARD 
Defendants. 

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

for Permanent Injunction and Other Equitable Relief, subsequently amended as Amended 

Complaint for Permanent Injunction and Other Equitable Relief (as amended, "Complaint"), for 

a permanent injunction and other equitable relief in this matter, pursuant to Sections 13(b) and 19 

of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 53(b) and 57b, and the 

Telemarketing and Consumer Fraud and Abuse Act ("Telemarketing Act"), 15 U.S.C. §§ 6101-

6108. The Commission and Defendant Candida L. Girouard ("Stipulating Defendant") stipulate 

to the entry of this Stipulated Order for Permanent Injunction and Monetary Judgment as to 

Defendant Candida L. Girouard ("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 acts or practices 

in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, and in violation of the FTC's 

Telemarketing Sales Rule ("TSR"), 16 C.F.R. Part 310, as amended, in connection with the 

advertising, marketing, telemarketing, promoting, offering for sale, or sale of limited benefit 

plans and medical discount memberships. 

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

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

Stipulating Defendant admits the facts necessary to establish jurisdiction. 

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4. Stipulating Defendant waives any claim that she 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 her own costs and attorney fees. 

5. Stipulating 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: 

1. "Clear and Conspicuous" 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: 

a. 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. 

b. 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. 

c. 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. 

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

Internet or software, the disclosure must be unavoidable. 

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e. 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. 

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

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

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

with, anything else in the communication. 

h. 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. 

2. "Corporate Defendants" means Simple Health Plans LLC; Health Benefits 

One LLC, also doing business as Health Benefits Center, Simple Health, Simple Health Plans, 

Simple Insurance, Simple Insurance Plans, Simple Auto, Simple Home, Simple Home Plans, 

Simple Care, Simple Life, and National Dental Savings; Health Center Management LLC; 

Innovative Customer Care LLC; Simple Insurance Leads LLC, also doing business as 

Health Insurance Services; and Senior Benefits One LLC, and their successors and assigns. 

3. "Defendants" means all of the Individual Defendants and the Corporate 

Defendants, individually, collectively, or in any combination. 

4. "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. 

5. "Established Business Relationship" 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 

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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. 

6. "Healthcare-Related Products" means any program, plan, membership, card, 

product, insurance policy, or other good or service, that offers, or purports to offer, insurance, 

discounts, savings, or benefits on healthcare, or access to such insurance, discounts, savings, or 

benefits. 

7. "Individual Defendants" means Steven J. Dorfman and Candida L. Girouard, 

and by whatever other names each may be known. 

8. "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)(l)(iii)(B). 

9. "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. 

10. "Receiver" means Michael Goldberg, Esq., the permanent receiver appointed in 

the Preliminary Injunction and Order entered by the Court on May 14, 2019 (Docket No. 139) 

("Preliminary Injunction"), and any deputy receivers that shall be named by the permanent 

receiver. 

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

provides, offers to provide, or arranges for others to provide goods or services to the customer in 

exchange for consideration whether or not such person is under the jurisdiction of the 

Commission. 

12. "Telemarketer" means any person who, in connection with Telemarketing, 

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initiates or receives telephone calls to or from a customer or donor, whether or not such 

person is under the jurisdiction of the Commission. 

13. "Telemarketing" means a plan, program, or campaign which is conducted to 

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

telephones and which involves more than one interstate telephone call. 

ORDER 

I. 

BAN ON HEALTHCARE-RELATED PRODUCTS 

IT IS THEREFORE ORDERED that Stipulating Defendant is permanently 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 

Products. 

II. 

PROHIBITION AGAINST MISREPRESENTATIONS 

IT IS FURTHER ORDERED that Stipulating Defendant, Stipulating 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 promoting or offering for sale any good or service, are permanently restrained 

and enjoined from misrepresenting or assisting others in misrepresenting, expressly or by 

implication: 

A. Any material aspect of the performance, efficacy, nature, or central characteristics 

of any good or service; 

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B. Any material restriction, limitation, or condition to purchase, receive, or use 

goods or services that are the subject of a sales offer; 

C. Any affiliation with, or endorsement or sponsorship by, any person or government 

entity; 

D. Any material aspect of the nature or terms of the seller's refund, cancellation, 

exchange, or repurchase policies; or 

E. 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. 

III. 

PROHIBITION AGAINST VIOLATING THE TSR 

IT IS FURTHER ORDERED that Stipulating Defendant, Stipulating 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: 

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

Outbound Telephone Call, in which the Telemarketer fails to disclose 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 two seconds of the person's 

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completed greeting, unless the Seller or Telemarketer proves that the following four conditions 

are met: 

1. the Seller or Telemarketer employs technology that ensures abandonment of 

no more than three percent of all calls answered by a person, measured over 

the duration of a single calling campaign, if less than thirty (30) 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 fifteen seconds or four rings before disconnecting 

an unanswered call; 

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

the call within two seconds after the person's completed greeting, the Seller 

promptly plays a recorded message that states the Seller's name and telephone 

number; and 

4. the Seller retains records establishing compliance with the preceding three 

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 Section III.B.3 of this Order, unless the Seller or 

Telemarketer proves that: 

1. Prior to 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: 

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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; 

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 fifteen (15) seconds or four (4) 

rings before disconnecting an unanswered call; and 

b. within two (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 opt-out mechanism to assert a donot-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 EntitySpecific Do Not Call List; 

(b) once invoked, immediately disconnect the call; and 

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

11. 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-activated opt-out mechanism that: 

(a) automatically adds the number called to the Seller's EntitySpecific Do Not Call List; 

(b) immediately thereafter disconnects the call; and 

( c) is accessible at any time throughout the duration of the 

Telemarketing campaign; 

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 shall clearly evidence such 

person's authorization that calls made by or on behalf of the Seller may be 

placed to that person, and shall 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 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; and 

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

A to this Order. 

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IV. 

MONETARY JUDGMENT AND SUSPENSION 

IT IS FURTHER ORDERED that: 

A. Judgment in the amount of One-Hundred Ninety-Five Million, Four Hundred 

Sixty-Six Thousand and Four Hundred Forty-Three Dollars ($195,466,443) is entered in favor of 

the Commission against Stipulating Defendant as equitable monetary relief. 

B. The judgment is suspended subject to the Subsections below. 

C. The Commission's agreement to the suspension of the judgment against 

Stipulating Defendant is expressly premised upon the truthfulness, accuracy, and completeness 

of Stipulating Defendant's sworn financial statement and related documents ( collectively, 

"financial representations") submitted to the Commission, namely: 

1. The Financial Statement of Individual Defendant Candida L. Girouard 

signed on November 21, 2019, including the attachments; 

2. The "Candida Girouard Update to Financial Affidavit" dated April 7, 

2020;and 

3. The email updating the Financial Statement of Individual Defendant 

Candida L. Girouard dated April 21, 2020 and sent from Cassandra LaChase, Legal 

Assistant to Brian H. Mallonee, to FTC counsel Elizabeth Scott and Joannie Wei, and the 

Receiver Michael Goldberg. 

D. The suspension of the judgment will be lifted as to Stipulating Defendant if, upon 

motion by the Commission, the Court finds that Stipulating Defendant failed to disclose any 

material asset, materially misstated the value of any asset, or made any other material 

misstatement or omission in the financial representations identified above. 

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E. If the suspension of the judgment is lifted, the judgment becomes immediately 

due as to Stipulating Defendant in the amount specified in Subsection A above (which the parties 

stipulate only for purposes of this Section represents the consumer injury alleged in the 

Complaint), plus interest computed from the date of entry of this Order. 

F. Stipulating Defendant relinquishes dominion and all legal and equitable right, 

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

any assets. 

G. The facts alleged in the Complaint will be taken as trne, without further proof, in 

any subsequent civil litigation by or on behalf of the Commission, including in a proceeding to 

enforce its rights to any payment or monetary judgment pursuant to this Order, such as a 

nondischargeability complaint in any bankrnptcy case. 

H. The facts alleged in the Complaint establish all elements necessary to sustain an 

action by the Commission pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C. § 

523(a)(2)(A), and this Order will have collateral estoppel effect for such purposes. 

I. Stipulating Defendant acknowledges that her Taxpayer Identification Numbers 

(Social Security Numbers or Employer Identification Numbers), which Stipulating Defendant 

previously submitted to Plaintiff, may be used for collecting and reporting on any delinquent 

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

J. All money paid to the Commission pursuant to this Order may be deposited into a 

fund administered by the Commission or its designee to be used for equitable relief, including 

consumer redress and any attendant expenses for the administration of any redress fund. If a 

representative of the Commission decides that direct redress to consumers is wholly or partially 

impracticable or money remains after redress is completed, the Commission may apply any 

13 
remaining money for such other equitable relief (including consumer infonnation remedies) as it 

detennines to be reasonably related to Defendants' practices alleged in the Complaint. Any 

money not used for such equitable relief is to be deposited to the U.S. Treasury as disgorgement. 

Stipulating Defendant has no right to challenge any actions the Commission or its representatives 

may take pursuant to this Subsection. 

V. 

CUSTOMER INFORMATION 

IT IS FURTHER ORDERED that Stipulating Defendant, Stipulating 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, are permanently restrained and 

enjoined from directly or indirectly: 

A. Failing to provide sufficient customer information to enable the Commission to 

efficiently administer consumer redress. If a representative of the Commission requests in 

writing any information related to redress, Stipulating Defendant must provide it, in the form 

prescribed by the Commission, within fourteen (14) days; 

B. Disclosing, using, or benefiting from customer information, including the name, 

address, telephone number, email address, Social Security number, other identifying information, 

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

other financial account), that any Defendant obtained prior to entry of this Order in connection 

with the advertising, marketing, telemarketing, promoting, offering for sale, or sale of any 

Healthcare-Related Products; and 

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C. Failing to destroy such customer information in all forms in their possession, 

custody, or control within thirty (30) days after receipt of written direction to do so from a 

representative of the Commission. 

Provided, however, that customer information need not be disposed of, and may be 

disclosed, to the extent requested by a government agency or required by law, regulation, or 

court order. 

VI. 

COOPERATION 

IT IS FURTHER ORDERED that Stipulating 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. Stipulating 

Defendant must provide truthful and complete information, evidence, and testimony. Stipulating 

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

a Commission representative may reasonably request upon five (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. Provided however, that nothing herein shall constitute or be 

construed as a waiver by Stipulating Defendant of her right against self-incrimination under the 

Fifth Amendment. 

VII 

COOPERATION WITH THE RECEIVER 

IT IS FURTHER ORDERED that Stipulating Defendant must fully cooperate with and 

assist the Receiver and the Receiver's professionals in this case and in any investigation related 

to or associated with the transactions or the occurrences that are the subject of the Complaint and 

15 
the duties imposed on, or powers granted to, the Receiver by any current or future order of the 

Court. This cooperation and assistance shall include, but not be limited to, providing any 

information to the Receiver and the Receiver's professionals that is reasonably necessary to 

enable the Receiver to exercise his authority and discharge his responsibilities under the 

applicable orders of the Court. Stipulating Defendant must provide truthful and complete 

information, evidence, and testimony. Stipulating Defendant must appear for interviews, 

discovery, hearings, trials, and any other proceedings that the Receiver or the Receiver's 

professionals may reasonably request upon five (5) days written notice, or other reasonable 

notice, at such places and times as the Receiver may reasonably designate, without the service of 

a subpoena. 

VIII. 

ORDER ACKNOWLEDGMENTS 

IT IS FURTHER ORDERED that Stipulating Defendant obtains acknowledgements of 

receipt of this Order: 

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

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

B. For five (5) years after entry of this Order, Stipulating Defendant for any business 

that Stipulating 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 

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

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

C. From each individual or entity to which Stipulating Defendant delivered a copy of 

this Order, Stipulating Defendant must obtain, within thirty (30) days, a signed and dated 

acknowledgment of receipt of this Order. 

IX. 

COMPLIANCE REPORTING 

IT IS FURTHER ORDERED that Stipulating Defendant make timely submissions to 

the Commission: 

A. One (1) year after entry of this Order, Stipulating Defendant must submit a 

compliance report, sworn under penalty of perjury. Stipulating Defendant must: (1) identify all 

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

residences; (2) identify all business activities, including any business for which Stipulating 

Defendant performs services whether as an employee or otherwise and any entity in which 

Stipulating Defendant has any ownership interest; (3) describe in detail Stipulating Defendant's 

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

control, and any ownership; (4) identify the primary physical, postal, and email address and 

telephone number, as designated points of contact, which representatives of the Commission may 

use to communicate with Stipulating Defendant; (5) identify all of Stipulating Defendant's 

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

addresses; (6) 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 Stipulating Defendant must describe if she knows or should know due to her own 

17 
involvement); (7) describe in detail whether and how Stipulating Defendant is in compliance 

with each Section of this Order; and (8) provide a copy of each Order Acknowledgment obtained 

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

B. For fifteen (15) years after entry of this Order, Stipulating Defendant must submit 

a compliance notice, sworn under penalty of perjury, within fourteen (14) days of any change in 

the following: ( 1) name, including aliases or fictitious name, or residence address; (2) title or 

role in any business activity, including any business for which Stipulating Defendant performs 

services whether as an employee or otherwise and any entity in which Stipulating Defendant has 

any ownership interest, and identify the name, physical address, and any Internet address of the 

business or entity; (3) any designated point of contact; or ( 4) the structure of any entity that 

Stipulating Defendant has any ownership interest in or controls directly or indirectly that may 

affect compliance obligations arising under this Order, including: creation, merger, sale, or 

dissolution of the entity or any subsidiary, parent, or affiliate that engages in any acts or practices 

subject to this Order. 

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

bankruptcy petition, insolvency proceeding, or similar proceeding by or against such Stipulating 

Defendant within fourteen (14) days of its filing. 

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

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

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

that the foregoing is true and correct. Executed on: __ " and supplying the date, signatory's 

full name, title (if applicable), and signature. 

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

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

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

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

Washington, DC 20580. The subject line must begin: FTC v. Simple Health Plans LLC; 

Candida L. Girouard, et al., FTC Matter No. X190009. 

X. 

RECORD KEEPING 

IT IS FURTHER ORDERED that Stipulating Defendant must create certain records for 

fifteen (15) years after entry of the Order, and retain each such record for five (5) years. 

Specifically, Stipulating Defendant for any business that Stipulating Defendant, 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 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 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 all submissions to the Commission; 

E. A copy of each unique advertisement or other marketing material; and 

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F. Copies of agreements, applications, and contracts with suppliers, payment 

processors, and list brokers. 

XI. 

COMPLIANCE MONITORING 

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

Defendant's compliance with this Order, including the financial representations upon which part 

of the judgment was suspended and any failure to transfer any assets as required by this Order: 

A. Within fourteen (14) days ofreceipt of a written request from a representative of 

the Commission, Stipulating 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 also is 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 Stipulating Defendant. Stipulating Defendant must permit representatives of the 

Commission to interview any employee or other person affiliated with Stipulating 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, though its 

representatives as consumers, suppliers, or other individuals or entities, to Stipulating Defendant 

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

identification or prior notice. Nothing in this Order limits the Commission's lawful use of 

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

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

reporting agency must furnish consumer reports concerning Stipulating Defendant, pursuant to 

Section 604(1) of the Fair Credit Reporting Act, 15 U.S.C. § 1681b(a)(l). 

XII. 

RETENTION OF JURISDICTION 

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

purposes of constmction, modification, and enforcement of this Order. 

SO ORDERED, this __ day of ______ , 2020. 

SO STIPULATED AND AGREED: 

FOR PLAINTIFF: 

ALDEN F. ABBOTT 

General Counsel 

HON. DARRIN P. GAYLES 

United States District Judge 

ELIZABETH C. SCOTT, Special Bar No. A5501502 

escott@ftc.gov; (312) 960-5609 

JOANNIE WEI, Special Bar No. A5502492 

jwei@ftc.gov; (312) 960-5607 

MATTHEW SCHILTZ, Special Bar No. A5502617 

mschiltz@ftc.gov; (312) 960-5619 

Federal Trade Commission 

230 S. Dearborn Street, Suite 3030 

Chicago, Illinois 60604 

Telephone: (312) 960-5634 

Facsimile: (312) 960-5600 

Attorneys for Plaintiff 

FEDERAL TRADE COMMISSION 

21 
Date: ---------- FOR DEFENDANT CANDIDA L. GIROUARD: 

-AL. GIROUARD 

Defendant 

Date: /O /(6 I ;Lo -----7'---~z----

~ ~ 

BRIAN H. MALLONEE, Florida Bar No. 160148 

130 S. Indian River Drive, Suite 302 

Fort Pierce, Florida 34950 

Telephone: (772) 464-1991 

bmallonee@stluciecriminallaw.com 

legalassistant@stluciecriminallaw.com 

Attorney for Defendant 

CANDIDA L. GIROUARD 

Date: /()/~I 6 / .2 fl 

I I 

22 
385 

Federal Trade Commission § 310.2 

APPENDIX A TO PART 309—FIGURES FOR PART 309 

[60 FR 26955, May 19, 1995, as amended at 69 FR 55339, Sept. 14, 2004; 78 FR 23835, Apr. 23, 2013] 

PART 310—TELEMARKETING SALES 

RULE 16 CFR PART 310 

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 practices. 

310.5 Recordkeeping requirements. 

310.6 Exemptions. 

310.7 Actions by states and private persons. 

310.8 Fee for access to the National Do Not 

Call Registry. 

310.9 Severability. 

AUTHORITY: 15 U.S.C. 6101–6108. 

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

otherwise noted. 

§ 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. 


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Appendix A

MINIMUM 

90°/o 

METHANE 

Figure 1 

ELECTRICITY 

9.6 kW 

240 vac/40 amps 

CONDUCTIVE 

Figure 3 

HYDROGEN 

MINIMUM 

98°/o 

HYDROGEN 

Figure 2 
386 

§ 310.2 16 CFR Ch. I (1–1–20 Edition) 

(b) Attorney General means the chief 

legal officer of a state. 

(c) Billing information means any data 

that enables any person to access a 

customer’s or donor’s account, such as 

a credit card, checking, savings, share 

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

(d) Caller identification service means a 

service that allows a telephone subscriber to have the telephone number, 

and, where available, name of the calling party transmitted contemporaneously with the telephone call, and 

displayed on a device in or connected 

to the subscriber’s telephone. 

(e) Cardholder means a person to 

whom a credit card is issued or who is 

authorized to use a credit card on behalf of or in addition to the person to 

whom the credit card is issued. 

(f) Cash-to-cash money transfer means 

the electronic (as defined in section 

106(2) of the Electronic Signatures in 

Global and National Commerce Act (15 

U.S.C. 7006(2)) transfer of the value of 

cash received from one person to another person in a different location 

that is sent by a money transfer provider and received in the form of cash. 

For purposes of this definition, money 

transfer provider means any person or 

financial institution that provides 

cash-to-cash money transfers for a person in the normal course of its business, whether or not the person holds 

an account with such person or financial institution. The term cash-to-cash 

money transfer includes a remittance 

transfer, as defined in section 919(g)(2) 

of the Electronic Fund Transfer Act 

(‘‘EFTA’’), 15 U.S.C. 1693a, that is a 

cash-to-cash transaction; however it 

does not include any transaction that 

is: 

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

(2) Covered by Regulation E, 12 CFR 

1005.20, pertaining to gift cards; or 

(3) Subject to the Truth in Lending 

Act, 15 U.S.C. 1601 et seq. 

(g) Cash reload mechanism is a device, 

authorization code, personal identification number, or other security measure 

that makes it possible for a person to 

convert cash into an electronic (as defined in section 106(2) of the Electronic 

Signatures in Global and National 

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

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

Regulation E, 12 CFR 1005.2, or an account with a payment intermediary. 

For purposes of this definition, a cash 

reload mechanism is not itself a general-use prepaid debit card or a swipe 

reload process or similar method in 

which funds are added directly onto a 

person’s own general-use prepaid card 

or account with a payment intermediary. 

(h) Charitable contribution means any 

donation or gift of money or any other 

thing of value. 

(i) Commission means the Federal 

Trade Commission. 

(j) Credit means the right granted by 

a creditor to a debtor to defer payment 

of debt or to incur debt and defer its 

payment. 

(k) Credit card means any card, plate, 

coupon book, or other credit device existing for the purpose of obtaining 

money, property, labor, or services on 

credit. 

(l) Credit card sales draft means any 

record or evidence of a credit card 

transaction. 

(m) Credit card system means any 

method or procedure used to process 

credit card transactions involving credit cards issued or licensed by the operator of that system. 

(n) Customer means any person who is 

or may be required to pay for goods or 

services offered through telemarketing. 

(o) Debt relief service means any program or service represented, directly or 

by implication, to renegotiate, settle, 

or in any way alter the terms of payment or other terms of the debt between a person and one or more unsecured creditors or debt collectors, including, but not limited to, a reduction 

in the balance, interest rate, or fees 

owed by a person to an unsecured creditor or debt collector. 

(p) Donor means any person solicited 

to make a charitable contribution. 

(q) Established business relationship 

means a relationship between a seller 

and a consumer based on: 

(1) the consumer’s purchase, rental, 

or lease of the seller’s goods or services 

or a financial transaction between the 


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Appendix A
387 

Federal Trade Commission § 310.2 

consumer and seller, within the eighteen (18) months immediately preceding 

the date of a telemarketing call; or 

(2) the consumer’s inquiry or application regarding a product or service offered by the seller, within the three (3) 

months immediately preceding the 

date of a telemarketing call. 

(r) Free-to-pay conversion means, in an 

offer or agreement to sell or provide 

any goods or services, a provision 

under which a customer receives a 

product or service for free for an initial 

period and will incur an obligation to 

pay for the product or service if he or 

she does not take affirmative action to 

cancel before the end of that period. 

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

based wholly or in part on representations, either express or implied, about 

past, present, or future income, profit, 

or appreciation. 

(t) Material means likely to affect a 

person’s choice of, or conduct regarding, goods or services or a charitable 

contribution. 

(u) Merchant means a person who is 

authorized under a written contract 

with an acquirer to honor or accept 

credit cards, or to transmit or process 

for payment credit card payments, for 

the purchase of goods or services or a 

charitable contribution. 

(v) Merchant agreement means a written contract between a merchant and 

an acquirer to honor or accept credit 

cards, or to transmit or process for 

payment credit card payments, for the 

purchase of goods or services or a charitable contribution. 

(w) Negative option feature means, in 

an offer or agreement to sell or provide 

any goods or services, a provision 

under which the customer’s silence or 

failure to take an affirmative action to 

reject goods or services or to cancel the 

agreement is interpreted by the seller 

as acceptance of the offer. 

(x) Outbound telephone call means a 

telephone call initiated by a telemarketer to induce the purchase of 

goods or services or to solicit a charitable contribution. 

(y) Person means any individual, 

group, unincorporated association, limited or general partnership, corporation, or other business entity. 

(z) Preacquired account information 

means any information that enables a 

seller or telemarketer to cause a 

charge to be placed against a customer’s or donor’s account without obtaining the account number directly 

from the customer or donor during the 

telemarketing transaction pursuant to 

which the account will be charged. 

(aa) Prize means anything offered, or 

purportedly offered, and given, or purportedly given, to a person by chance. 

For purposes of this definition, chance 

exists if a person is guaranteed to receive an item and, at the time of the 

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

item that the person will receive. 

(bb) Prize promotion means: 

(1) A sweepstakes or other game of 

chance; or 

(2) An oral or written express or implied representation that a person has 

won, has been selected to receive, or 

may be eligible to receive a prize or 

purported prize. 

(cc) Remotely created payment order 

means any payment instruction or 

order drawn on a person’s account that 

is created by the payee or the payee’s 

agent and deposited into or cleared 

through the check clearing system. 

The term includes, without limitation, 

a ‘‘remotely created check,’’ as defined 

in Regulation CC, Availability of 

Funds and Collection of Checks, 12 CFR 

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

subject to the Truth in Lending Act, 15 

U.S.C. 1601 et seq., and Regulation Z, 12 

CFR part 1026. 

(dd) Seller means any person who, in 

connection with a telemarketing transaction, provides, offers to provide, or 

arranges for others to provide goods or 

services to the customer in exchange 

for consideration. 

(ee) State means any state of the 

United States, the District of Columbia, Puerto Rico, the Northern Mariana 

Islands, and any territory or possession 

of the United States. 

(ff) Telemarketer means any person 

who, in connection with telemarketing, 

initiates or receives telephone calls to 

or from a customer or donor. 

(gg) Telemarketing means a plan, program, or campaign which is conducted 


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Appendix A
388 

§ 310.3 16 CFR Ch. I (1–1–20 Edition) 

659 When a seller or telemarketer uses, or 

directs a customer to use, a courier to transport payment, the seller or telemarketer 

must make the disclosures required by 

§310.3(a)(1) before sending a courier to pick 

up payment or authorization for payment, or 

directing a customer to have a courier pick 

up payment or authorization for payment. In 

the case of debt relief services, the seller or 

telemarketer must make the disclosures required by §310.3(a)(1) before the consumer enrolls in an offered program. 660 For offers of consumer credit products 

subject to the Truth in Lending Act, 15 

U.S.C. 1601 et seq., and Regulation Z, 12 CFR 

226, compliance with the disclosure requirements under the Truth in Lending Act and 

Regulation Z shall constitute compliance 

with §310.3(a)(1)(i) of this Rule. 

to induce the purchase of goods or services or a charitable contribution, by 

use of one or more telephones and 

which involves more than one interstate telephone call. The term does not 

include the solicitation of sales 

through the mailing of a catalog 

which: contains a written description 

or illustration of the goods or services 

offered for sale; includes the business 

address of the seller; includes multiple 

pages of written material or illustrations; and has been issued not less frequently than once a year, when the 

person making the solicitation does 

not solicit customers by telephone but 

only receives calls initiated by customers in response to the catalog and 

during those calls takes orders only 

without further solicitation. For purposes of the previous sentence, the 

term ‘‘further solicitation’’ does not 

include providing the customer with 

information about, or attempting to 

sell, any other item included in the 

same catalog which prompted the customer’s call or in a substantially similar catalog. 

(hh) Upselling means soliciting the 

purchase of goods or services following 

an initial transaction during a single 

telephone call. The upsell is a separate 

telemarketing transaction, not a continuation of the initial transaction. An 

‘‘external upsell’’ is a solicitation 

made by or on behalf of a seller different from the seller in the initial 

transaction, regardless of whether the 

initial transaction and the subsequent 

solicitation are made by the same telemarketer. An ‘‘internal upsell’’ is a solicitation made by or on behalf of the 

same seller as in the initial transaction, regardless of whether the initial transaction and subsequent solicitation are made by the same telemarketer. 

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

FR 77557, Dec. 14, 2015] 

§ 310.3 Deceptive telemarketing acts or 

practices. 

(a) Prohibited deceptive telemarketing 

acts or practices. It is a deceptive telemarketing act or practice and a violation of this Rule for any seller or telemarketer to engage in the following 

conduct: 

(1) Before a customer consents to 

pay659 for goods or services offered, 

failing to disclose truthfully, in a clear 

and conspicuous manner, the following 

material information: 

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

goods or services that are the subject 

of the sales offer; 660

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

are the subject of the sales offer; 

(iii) If the seller has a policy of not 

making refunds, cancellations, exchanges, or repurchases, a statement 

informing the customer that this is the 

seller’s policy; or, if the seller or telemarketer makes a representation 

about a refund, cancellation, exchange, 

or repurchase policy, a statement of all 

material terms and conditions of such 

policy; 

(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; 


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Federal Trade Commission § 310.3 

(v) All material costs or conditions 

to receive or redeem a prize that is the 

subject of the prize promotion; 

(vi) In the sale of any goods or services represented to protect, insure, or 

otherwise limit a customer’s liability 

in the event of unauthorized use of the 

customer’s credit card, the limits on a 

cardholder’s liability for unauthorized 

use of a credit card pursuant to 15 

U.S.C. 1643; 

(vii) If the offer includes a negative 

option feature, all material terms and 

conditions of the negative option feature, including, but not limited to, the 

fact that the customer’s account will 

be charged unless the customer takes 

an affirmative action to avoid the 

charge(s), the date(s) the charge(s) will 

be submitted for payment, and the specific steps the customer must take to 

avoid the charge(s); and 

(viii) In the sale of any debt relief 

service: 

(A) the amount of time necessary to 

achieve the represented results, and to 

the extent that the service may include 

a settlement offer to any of the customer’s creditors or debt collectors, 

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

(B) to the extent that the service 

may include a settlement offer to any 

of the customer’s creditors or debt collectors, the amount of money or the 

percentage of each outstanding debt 

that the customer must accumulate before the debt relief service provider 

will make a bona fide settlement offer 

to each of them; 

(C) to the extent that any aspect of 

the debt relief service relies upon or results in the customer’s failure to make 

timely payments to creditors or debt 

collectors, that the use of the debt relief service will likely adversely affect 

the customer’s creditworthiness, may 

result in the customer being subject to 

collections or sued by creditors or debt 

collectors, and may increase the 

amount of money the customer owes 

due to the accrual of fees and interest; 

and 

(D) to the extent that the debt relief 

service requests or requires the customer to place funds in an account at 

an insured financial institution, that 

the customer owns the funds held in 

the account, the customer may withdraw from the debt relief service at any 

time without penalty, and, if the customer withdraws, the customer must 

receive all funds in the account, other 

than funds earned by the debt relief 

service in compliance with 

§310.4(a)(5)(i)(A) through (C). 

(2) Misrepresenting, directly or by 

implication, in the sale of goods or 

services any of the following material 

information: 

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

goods or services that are the subject 

of a sales offer; 

(ii) Any material restriction, limitation, or condition to purchase, receive, 

or use goods or services that are the 

subject of a sales offer; 

(iii) Any material aspect of the performance, efficacy, nature, or central 

characteristics of goods or services 

that are the subject of a sales offer; 

(iv) Any material aspect of the nature or terms of the seller’s refund, 

cancellation, exchange, or repurchase 

policies; 

(v) Any material aspect of a prize 

promotion including, but not limited 

to, the odds of being able to receive a 

prize, the nature or value of a prize, or 

that a purchase or payment is required 

to win a prize or to participate in a 

prize promotion; 

(vi) Any material aspect of an investment opportunity including, but not 

limited to, risk, liquidity, earnings potential, or profitability; 

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

entity; 

(viii) That any customer needs offered goods or services to provide protections a customer already has pursuant to 15 U.S.C. 1643; 

(ix) Any material aspect of a negative option feature including, but not 

limited to, the fact that the customer’s 

account will be charged unless the customer takes an affirmative action to 

avoid the charge(s), the date(s) the 

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

charge(s); or 


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Appendix A
390 

§ 310.3 16 CFR Ch. I (1–1–20 Edition) 

661 Truth in Lending Act, 15 U.S.C. 1601 et 

seq., and Regulation Z, 12 CFR part 226. 662 Electronic Fund Transfer Act, 15 U.S.C. 

1693 et seq., and Regulation E, 12 CFR part 

205. 663 For purposes of this Rule, the term 

‘‘signature’’ shall include an electronic or 

digital form of signature, to the extent that 

such form of signature is recognized as a 

valid signature under applicable federal law 

or state contract law. 

(x) Any material aspect of any debt 

relief service, including, but not limited to, the amount of money or the 

percentage of the debt amount that a 

customer may save by using such service; the amount of time necessary to 

achieve the represented results; the 

amount of money or the percentage of 

each outstanding debt that the customer must accumulate before the provider of the debt relief service will initiate attempts with the customer’s 

creditors or debt collectors or make a 

bona fide offer to negotiate, settle, or 

modify the terms of the customer’s 

debt; the effect of the service on a customer’s creditworthiness; the effect of 

the service on collection efforts of the 

customer’s creditors or debt collectors; 

the percentage or number of customers 

who attain the represented results; and 

whether a debt relief service is offered 

or provided by a non-profit entity. 

(3) Causing billing information to be 

submitted for payment, or collecting or 

attempting to collect payment for 

goods or services or a charitable contribution, directly or indirectly, without the customer’s or donor’s express 

verifiable authorization, except when 

the method of payment used is a credit 

card subject to protections of the 

Truth in Lending Act and Regulation 

Z,661 or a debit card subject to the protections of the Electronic Fund Transfer Act and Regulation E.662 Such authorization shall be deemed verifiable 

if any of the following means is employed: 

(i) Express written authorization by 

the customer or donor, which includes 

the customer’s or donor’s signature;663

(ii) Express oral authorization which 

is audio-recorded and made available 

upon request to the customer or donor, 

and the customer’s or donor’s bank or 

other billing entity, and which evidences clearly both the customer’s or 

donor’s authorization of payment for 

the goods or services or charitable contribution that are the subject of the 

telemarketing transaction and the customer’s or donor’s receipt of all of the 

following information: 

(A) An accurate description, clearly 

and conspicuously stated, of the goods 

or services or charitable contribution 

for which payment authorization is 

sought; 

(B) The number of debits, charges, or 

payments (if more than one); 

(C) The date(s) the debit(s), charge(s), 

or payment(s) will be submitted for 

payment; 

(D) The amount(s) of the debit(s), 

charge(s), or payment(s); 

(E) The customer’s or donor’s name; 

(F) The customer’s or donor’s billing 

information, identified with sufficient 

specificity such that the customer or 

donor understands what account will 

be used to collect payment for the 

goods or services or charitable contribution that are the subject of the 

telemarketing transaction; 

(G) A telephone number for customer 

or donor inquiry that is answered during normal business hours; and 

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

(iii) Written confirmation of the 

transaction, identified in a clear and 

conspicuous manner as such on the 

outside of the envelope, sent to the 

customer or donor via first class mail 

prior to the submission for payment of 

the customer’s or donor’s billing information, and that includes all of the information contained in 

§§310.3(a)(3)(ii)(A)-(G) and a clear and 

conspicuous statement of the procedures by which the customer or donor 

can obtain a refund from the seller or 

telemarketer or charitable organization in the event the confirmation is 

inaccurate; provided, however, that 

this means of authorization shall not 

be deemed verifiable in instances in 

which goods or services are offered in a 

transaction involving a free-to-pay 

conversion and preacquired account information. 

(4) Making a false or misleading 

statement to induce any person to pay 

for goods or services or to induce a 

charitable contribution. 


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Federal Trade Commission § 310.4 

(b) Assisting and facilitating. It is a deceptive telemarketing act or practice 

and a violation of this Rule for a person to provide substantial assistance or 

support to any seller or telemarketer 

when that person knows or consciously 

avoids knowing that the seller or telemarketer is engaged in any act or practice that violates §§310.3(a), (c) or (d), 

or §310.4 of this Rule. 

(c) Credit card laundering. Except as 

expressly permitted by the applicable 

credit card system, it is a deceptive 

telemarketing act or practice and a 

violation of this Rule for: 

(1) A merchant to present to or deposit into, or cause another to present 

to or deposit into, the credit card system for payment, a credit card sales 

draft generated by a telemarketing 

transaction that is not the result of a 

telemarketing credit card transaction 

between the cardholder and the merchant; 

(2) Any person to employ, solicit, or 

otherwise cause a merchant, or an employee, representative, or agent of the 

merchant, to present to or deposit into 

the credit card system for payment, a 

credit card sales draft generated by a 

telemarketing transaction that is not 

the result of a telemarketing credit 

card transaction between the cardholder and the merchant; or 

(3) Any person to obtain access to the 

credit card system through the use of a 

business relationship or an affiliation 

with a merchant, when such access is 

not authorized by the merchant agreement or the applicable credit card system. 

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

solicitation, a deceptive telemarketing 

act or practice, and a violation of this 

Rule for any telemarketer soliciting 

charitable contributions to misrepresent, directly or by implication, any of 

the following material information: 

(1) The nature, purpose, or mission of 

any entity on behalf of which a charitable contribution is being requested; 

(2) That any charitable contribution 

is tax deductible in whole or in part; 

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

(4) The percentage or amount of any 

charitable contribution that will go to 

a charitable organization or to any 

particular charitable program; 

(5) Any material aspect of a prize 

promotion including, but not limited 

to: the odds of being able to receive a 

prize; the nature or value of a prize; or 

that a charitable contribution is required to win a prize or to participate 

in a prize promotion; or 

(6) A charitable organization’s or 

telemarketer’s affiliation with, or endorsement or sponsorship by, any person or government entity. 

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

FR 77558, Dec. 14, 2015] 

§ 310.4 Abusive telemarketing acts or 

practices. 

(a) Abusive conduct generally. It is an 

abusive telemarketing act or practice 

and a violation of this Rule for any 

seller or telemarketer to engage in the 

following conduct: 

(1) Threats, intimidation, or the use 

of profane or obscene language; 

(2) Requesting or receiving payment 

of any fee or consideration for goods or 

services represented to remove derogatory information from, or improve, a 

person’s credit history, credit record, 

or credit rating until: 

(i) The time frame in which the seller 

has represented all of the goods or 

services will be provided to that person 

has expired; and 

(ii) The seller has provided the person 

with documentation in the form of a 

consumer report from a consumer reporting agency demonstrating that the 

promised results have been achieved, 

such report having been issued more 

than six months after the results were 

achieved. Nothing in this Rule should 

be construed to affect the requirement 

in the Fair Credit Reporting Act, 15 

U.S.C. 1681, that a consumer report 

may only be obtained for a specified 

permissible purpose; 

(3) Requesting or receiving payment 

of any fee or consideration from a person for goods or services represented to 

recover or otherwise assist in the return of money or any other item of 

value paid for by, or promised to, that 

person in a previous transaction, until 

seven (7) business days after such 

money or other item is delivered to 

that person. This provision shall not 


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Appendix A
392 

§ 310.4 16 CFR Ch. I (1–1–20 Edition) 

apply to goods or services provided to a 

person by a licensed attorney; 

(4) Requesting or receiving payment 

of any fee or consideration in advance 

of obtaining a loan or other extension 

of credit when the seller or telemarketer has guaranteed or represented a high likelihood of success in 

obtaining or arranging a loan or other 

extension of credit for a person; 

(5)(i) Requesting or receiving payment of any fee or consideration for 

any debt relief service until and unless: 

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

debt pursuant to a settlement agreement, debt management plan, or other 

such valid contractual agreement executed by the customer; 

(B) The customer has made at least 

one payment pursuant to that settlement agreement, debt management 

plan, or other valid contractual agreement between the customer and the 

creditor or debt collector; and 

(C) To the extent that debts enrolled 

in a service are renegotiated, settled, 

reduced, or otherwise altered individually, the fee or consideration either: 

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

the terms of the entire debt balance as 

the individual debt amount bears to 

the entire debt amount. The individual 

debt amount and the entire debt 

amount are those owed at the time the 

debt was enrolled in the service; or 

(2) Is a percentage of the amount 

saved as a result of the renegotiation, 

settlement, reduction, or alteration. 

The percentage charged cannot change 

from one individual debt to another. 

The amount saved is the difference between the amount owed at the time the 

debt was enrolled in the service and the 

amount actually paid to satisfy the 

debt. 

(ii) Nothing in §310.4(a)(5)(i) prohibits 

requesting or requiring the customer 

to place funds in an account to be used 

for the debt relief provider’s fees and 

for payments to creditors or debt collectors in connection with the renegotiation, settlement, reduction, or other 

alteration of the terms of payment or 

other terms of a debt, provided that: 

(A) The funds are held in an account 

at an insured financial institution; 

(B) The customer owns the funds held 

in the account and is paid accrued interest on the account, if any; 

(C) The entity administering the account is not owned or controlled by, or 

in any way affiliated with, the debt relief service; 

(D) The entity administering the account does not give or accept any 

money or other compensation in exchange for referrals of business involving the debt relief service; and 

(E) The customer may withdraw from 

the debt relief service at any time 

without penalty, and must receive all 

funds in the account, other than funds 

earned by the debt relief service in 

compliance with §310.4(a)(5)(i)(A) 

through (C), within seven (7) business 

days of the customer’s request. 

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

this paragraph shall not apply to the 

disclosure or receipt of a customer’s or 

donor’s billing information to process a 

payment for goods or services or a 

charitable contribution pursuant to a 

transaction; 

(7) Causing billing information to be 

submitted for payment, directly or indirectly, without the express informed 

consent of the customer or donor. In 

any telemarketing transaction, the 

seller or telemarketer must obtain the 

express informed consent of the customer or donor to be charged for the 

goods or services or charitable contribution and to be charged using the 

identified account. In any telemarketing transaction involving 

preacquired account information, the 

requirements in paragraphs (a)(7)(i) 

through (ii) of this section must be met 

to evidence express informed consent. 

(i) In any telemarketing transaction 

involving preacquired account information and a free-to-pay conversion feature, the seller or telemarketer must: 

(A) Obtain from the customer, at a 

minimum, the last four (4) digits of the 

account number to be charged; 

(B) Obtain from the customer his or 

her express agreement to be charged 

for the goods or services and to be 


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393 

Federal Trade Commission § 310.4 

664For purposes of this Rule, the term 

‘‘signature’’ shall include an electronic or 

digital form of signature, to the extent that 

such form of signature is recognized as a 

Continued 

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

section; and, 

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

transaction. 

(ii) In any other telemarketing transaction involving preacquired account 

information not described in paragraph 

(a)(7)(i) of this section, the seller or 

telemarketer must: 

(A) At a minimum, identify the account to be charged with sufficient 

specificity for the customer or donor to 

understand what account will be 

charged; and 

(B) Obtain from the customer or 

donor his or her express agreement to 

be charged for the goods or services 

and to be charged using the account 

number identified pursuant to paragraph (a)(7)(ii)(A) of this section; 

(8) Failing to transmit or cause to be 

transmitted the telephone number, 

and, when made available by the telemarketer’s carrier, the name of the 

telemarketer, to any caller identification service in use by a recipient of a 

telemarketing call; provided that it 

shall not be a violation to substitute 

(for the name and phone number used 

in, or billed for, making the call) the 

name of the seller or charitable organization on behalf of which a telemarketing call is placed, and the seller’s or charitable organization’s customer or donor service telephone number, which is answered during regular 

business hours; 

(9) Creating or causing to be created, 

directly or indirectly, a remotely created payment order as payment for 

goods or services offered or sold 

through telemarketing or as a charitable contribution solicited or sought 

through telemarketing; or 

(10) Accepting from a customer or 

donor, directly or indirectly, a cash-tocash money transfer or cash reload 

mechanism as payment for goods or 

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

(b) Pattern of calls. (1) It is an abusive 

telemarketing act or practice and a 

violation of this Rule for a telemarketer to engage in, or for a seller 

to cause a telemarketer to engage in, 

the following conduct: 

(i) Causing any telephone to ring, or 

engaging any person in telephone conversation, repeatedly or continuously 

with intent to annoy, abuse, or harass 

any person at the called number; 

(ii) Denying or interfering in any 

way, directly or indirectly, with a person’s right to be placed on any registry 

of names and/or telephone numbers of 

persons who do not wish to receive outbound telephone calls established to 

comply with paragraph (b)(1)(iii)(A) of 

this section, including, but not limited 

to, harassing any person who makes 

such a request; hanging up on that person; failing to honor the request; requiring the person to listen to a sales 

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

request; requiring a person to call a 

different number to submit the request; and requiring the person to identify the seller making the call or on 

whose behalf the call is made; 

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

(A) That person previously has stated 

that he or she does not wish to receive 

an outbound telephone call made by or 

on behalf of the seller whose goods or 

services are being offered or made on 

behalf of the charitable organization 

for which a charitable contribution is 

being solicited; or 

(B) That person’s telephone number 

is on the ‘‘do-not-call’’ registry, maintained by the Commission, of persons 

who do not wish to receive outbound 

telephone calls to induce the purchase 

of goods or services unless the seller or 

telemarketer: 

(1) Can demonstrate that the seller 

has obtained the express agreement, in 

writing, of such person to place calls to 

that person. Such written agreement 

shall clearly evidence such person’s authorization that calls made by or on 

behalf of a specific party may be placed 

to that person, and shall include the 

telephone number to which the calls 

may be placed and the signature 664 of 

that person; or 


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§ 310.4 16 CFR Ch. I (1–1–20 Edition) 

valid signature under applicable federal law 

or state contract law. 665 For purposes of this Rule, the term 

‘‘signature’’ shall include an electronic or 

digital form of signature, to the extent that 

such form of signature is recognized as a 

valid signature under applicable federal law 

or state contract law. 

(2) Can demonstrate that the seller 

has an established business relationship with such person, and that person 

has not stated that he or she does not 

wish to receive outbound telephone 

calls under paragraph (b)(1)(iii)(A) of 

this section; or 

(iv) Abandoning any outbound telephone call. An outbound telephone call 

is ‘‘abandoned’’ under this section if a 

person answers it and the telemarketer 

does not connect the call to a sales representative within two (2) seconds of 

the person’s completed greeting. 

(v) Initiating any outbound telephone 

call that delivers a prerecorded message, other than a prerecorded message 

permitted for compliance with the call 

abandonment safe harbor in 

§310.4(b)(4)(iii), unless: 

(A) In any such call to induce the 

purchase of any good or service, the 

seller has obtained from the recipient 

of the call an express agreement, in 

writing, that: 

(i) The seller obtained only after a 

clear and conspicuous disclosure that 

the purpose of the agreement is to authorize the seller to place prerecorded 

calls to such person; 

(ii) The seller obtained without requiring, directly or indirectly, that the 

agreement be executed as a condition 

of purchasing any good or service; 

(iii) Evidences the willingness of the 

recipient of the call to receive calls 

that deliver prerecorded messages by 

or on behalf of a specific seller; and 

(iv) Includes such person’s telephone 

number and signature;665 and 

(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 nonprofit charitable organization on whose 

behalf the call is made, the seller or 

telemarketer: 

(i) Allows the telephone to ring for at 

least fifteen (15) seconds or four (4) 

rings before disconnecting an unanswered call; and 

(ii) Within two (2) seconds after the 

completed greeting of the person 

called, plays a prerecorded message 

that promptly provides the disclosures 

required by §310.4(d) or (e), followed 

immediately by a disclosure of one or 

both of the following: 

(A) In the case of a call that could be 

answered in person by a consumer, that 

the person called can use an automated 

interactive voice and/or keypress-activated opt-out mechanism to assert a 

Do Not Call request pursuant to 

§310.4(b)(1)(iii)(A) at any time during 

the message. The mechanism must: 

(1) Automatically add the number 

called to the seller’s entity-specific Do 

Not Call list; 

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

(3) Be available for use at any time 

during the message; and 

(B) In the case of a call that could be 

answered by an answering machine or 

voicemail service, that the person 

called can use a toll-free telephone 

number to assert a Do Not Call request 

pursuant to §310.4(b)(1)(iii)(A). The 

number provided must connect directly 

to an automated interactive voice or 

keypress-activated opt-out mechanism 

that: 

(1) Automatically adds the number 

called to the seller’s entity-specific Do 

Not Call list; 

(2) Immediately thereafter disconnects the call; and 

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

campaign; and 

(iii) Complies with all other requirements of this part and other applicable 

federal and state laws. 

(C) Any call that complies with all 

applicable requirements of this paragraph (v) shall not be deemed to violate 

§310.4(b)(1)(iv) of this part. 

(D) This paragraph (v) shall not apply 

to any outbound telephone call that delivers a prerecorded healthcare message made by, or on behalf of, a covered 

entity or its business associate, as 

those terms are defined in the HIPAA 

Privacy Rule, 45 CFR 160.103. 

(2) It is an abusive telemarketing act 

or practice and a violation of this Rule 

for any person to sell, rent, lease, purchase, or use any list established to 

comply with §310.4(b)(1)(iii)(A), or 


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Federal Trade Commission § 310.4 

666 This provision does not affect any seller’s or telemarketer’s obligation to comply 

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

227, and 47 CFR part 64.1200. 

maintained by the Commission pursuant to §310.4(b)(1)(iii)(B), for any purpose except compliance with the provisions of this Rule or otherwise to prevent telephone calls to telephone numbers on such lists. 

(3) A seller or telemarketer will not 

be liable for violating §310.4(b)(1)(ii) 

and (iii) if it can demonstrate that, as 

part of the seller’s or telemarketer’s 

routine business practice: 

(i) It has established and implemented written procedures to comply 

with §310.4(b)(1)(ii) and (iii); 

(ii) It has trained its personnel, and 

any entity assisting in its compliance, 

in the procedures established pursuant 

to §310.4(b)(3)(i); 

(iii) The seller, or a telemarketer or 

another person acting on behalf of the 

seller or charitable organization, has 

maintained and recorded a list of telephone numbers the seller or charitable 

organization may not contact, in compliance with §310.4(b)(1)(iii)(A); 

(iv) The seller or a telemarketer uses 

a process to prevent telemarketing to 

any telephone number on any list established pursuant to §310.4(b)(3)(iii) or 

310.4(b)(1)(iii)(B), employing a version 

of the ‘‘do-not-call’’ registry obtained 

from the Commission no more than 

thirty-one (31) days prior to the date 

any call is made, and maintains 

records documenting this process; 

(v) The seller or a telemarketer or 

another person acting on behalf of the 

seller or charitable organization, monitors and enforces compliance with the 

procedures established pursuant to 

§310.4(b)(3)(i); and 

(vi) Any subsequent call otherwise 

violating paragraph (b)(1)(ii) or (iii) of 

this section is the result of error and 

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

(b)(1)(iii)(A) of this section not to receive further calls by or on behalf of a 

seller or charitable organization. 

(4) A seller or telemarketer will not 

be liable for violating §310.4(b)(1)(iv) if: 

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

measured over the duration of a single 

calling campaign, if less than 30 days, 

or separately over each successive 30- 

day period or portion thereof that the 

campaign continues. 

(ii) The seller or telemarketer, for 

each telemarketing call placed, allows 

the telephone to ring for at least fifteen (15) seconds or four (4) rings before 

disconnecting an unanswered call; 

(iii) Whenever a sales representative 

is not available to speak with the person answering the call within two (2) 

seconds after the person’s completed 

greeting, the seller or telemarketer 

promptly plays a recorded message 

that states the name and telephone 

number of the seller on whose behalf 

the call was placed666; and 

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

records establishing compliance with 

§310.4(b)(4)(i)-(iii). 

(c) Calling time restrictions. Without 

the prior consent of a person, it is an 

abusive telemarketing act or practice 

and a violation of this Rule for a telemarketer to engage in outbound telephone calls to a person’s residence at 

any time other than between 8:00 a.m. 

and 9:00 p.m. local time at the called 

person’s location. 

(d) Required oral disclosures in the sale 

of goods or services. It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer in 

an outbound telephone call or internal 

or external upsell to induce the purchase of goods or services to fail to disclose truthfully, promptly, and in a 

clear and conspicuous manner to the 

person receiving the call, the following 

information: 

(1) The identity of the seller; 

(2) That the purpose of the call is to 

sell goods or services; 

(3) The nature of the goods or services; and 

(4) That no purchase or payment is 

necessary to be able to win a prize or 

participate in a prize promotion if a 

prize promotion is offered and that any 

purchase or payment will not increase 

the person’s chances of winning. This 

disclosure must be made before or in 

conjunction with the description of the 

prize to the person called. If requested 


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396 

§ 310.5 16 CFR Ch. I (1–1–20 Edition) 

667 For offers of consumer credit products 

subject to the Truth in Lending Act, 15 

U.S.C. 1601 et seq., and Regulation Z, 12 CFR 

226, compliance with the recordkeeping requirements under the Truth in Lending Act, 

and Regulation Z, shall constitute compliance with §310.5(a)(3) of this Rule. 

by that person, the telemarketer must 

disclose the no-purchase/no-payment 

entry method for the prize promotion; 

provided, however, that, in any internal upsell for the sale of goods or services, the seller or telemarketer must 

provide the disclosures listed in this 

section only to the extent that the information in the upsell differs from the 

disclosures provided in the initial telemarketing transaction. 

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

an outbound telephone call to induce a 

charitable contribution, to fail to disclose truthfully, promptly, and in a 

clear and conspicuous manner to the 

person receiving the call, the following 

information: 

(1) The identity of the charitable organization on behalf of which the request is being made; and 

(2) That the purpose of the call is to 

solicit a charitable contribution. 

[75 FR 48516, Aug. 10, 2010, as amended at 76 

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

2015] 

§ 310.5 Recordkeeping requirements. 

(a) Any seller or telemarketer shall 

keep, for a period of 24 months from 

the date the record is produced, the following records relating to its telemarketing activities: 

(1) All substantially different advertising, brochures, telemarketing 

scripts, and promotional materials; 

(2) The name and last known address 

of each prize recipient and the prize 

awarded for prizes that are represented, directly or by implication, to 

have a value of $25.00 or more; 

(3) The name and last known address 

of each customer, the goods or services 

purchased, the date such goods or services were shipped or provided, and the 

amount paid by the customer for the 

goods or services;667

(4) The name, any fictitious name 

used, the last known home address and 

telephone number, and the job title(s) 

for all current and former employees 

directly involved in telephone sales or 

solicitations; provided, however, that if 

the seller or telemarketer permits fictitious names to be used by employees, 

each fictitious name must be traceable 

to only one specific employee; and 

(5) All verifiable authorizations or 

records of express informed consent or 

express agreement required to be provided or received under this Rule. 

(b) A seller or telemarketer may 

keep the records required by §310.5(a) 

in any form, and in the same manner, 

format, or place as they keep such 

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

of this Rule. 

(c) The seller and the telemarketer 

calling on behalf of the seller may, by 

written agreement, allocate responsibility between themselves for the recordkeeping required by this Section. 

When a seller and telemarketer have 

entered into such an agreement, the 

terms of that agreement shall govern, 

and the seller or telemarketer, as the 

case may be, need not keep records 

that duplicate those of the other. If the 

agreement is unclear as to who must 

maintain any required record(s), or if 

no such agreement exists, the seller 

shall be responsible for complying with 

§§310.5(a)(1)-(3) and (5); the telemarketer shall be responsible for complying with §310.5(a)(4). 

(d) In the event of any dissolution or 

termination of the seller’s or telemarketer’s business, the principal of 

that seller or telemarketer shall maintain all records as required under this 

section. In the event of any sale, assignment, or other change in ownership 

of the seller’s or telemarketer’s business, the successor business shall maintain all records required under this section. 

§ 310.6 Exemptions. 

(a) Solicitations to induce charitable 

contributions via outbound telephone 

calls are not covered by 

§310.4(b)(1)(iii)(B) of this Rule. 

(b) The following acts or practices 

are exempt from this Rule: 


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Federal Trade Commission § 310.7 

(1) The sale of pay-per-call services 

subject to the Commission’s Rule entitled ‘‘Trade Regulation Rule Pursuant 

to the Telephone Disclosure and Dispute Resolution Act of 1992,’’ 16 CFR 

part 308, provided, however, that this 

exemption does not apply to the requirements of §§310.4(a)(1), (a)(7), (b), 

and (c); 

(2) The sale of franchises subject to 

the Commission’s Rule entitled ‘‘Disclosure Requirements and Prohibitions 

Concerning Franchising,’’ (‘‘Franchise 

Rule’’) 16 CFR part 436, and the sale of 

business opportunities subject to the 

Commission’s Rule entitled ‘‘Disclosure Requirements and Prohibitions 

Concerning Business Opportunities,’’ 

(‘‘Business Opportunity Rule’’) 16 CFR 

part 437, provided, however, that this 

exemption does not apply to the requirements of §§310.4(a)(1), (a)(7), (b), 

and (c); 

(3) Telephone calls in which the sale 

of goods or services or charitable solicitation is not completed, and payment 

or authorization of payment is not required, until after a face-to-face sales 

or donation presentation by the seller 

or charitable organization, provided, 

however, that this exemption does not 

apply to the requirements of 

§§310.4(a)(1), (a)(7), (b), and (c); 

(4) Telephone calls initiated by a customer or donor that are not the result 

of any solicitation by a seller, charitable organization, or telemarketer, 

provided, however, that this exemption 

does not apply to any instances of 

upselling included in such telephone 

calls; 

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

than direct mail solicitation, provided, 

however, that this exemption does not 

apply to: 

(i) Calls initiated by a customer or 

donor in response to an advertisement 

relating to investment opportunities, 

debt relief services, business opportunities other than business arrangements 

covered by the Franchise Rule or Business Opportunity Rule, or advertisements involving offers for goods or 

services described in §310.3(a)(1)(vi) or 

§310.4(a)(2) through (4); 

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

or (10); or 

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

(6) Telephone calls initiated by a customer or donor in response to a direct 

mail solicitation, including solicitations via the U.S. Postal Service, facsimile transmission, electronic mail, 

and other similar methods of delivery 

in which a solicitation is directed to 

specific address(es) or person(s), that 

clearly, conspicuously, and truthfully 

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

misrepresentation regarding any item 

contained in §310.3(d) for any requested 

charitable contribution; provided, however, that this exemption does not 

apply to: 

(i) Calls initiated by a customer in 

response to a direct mail solicitation 

relating to prize promotions, investment opportunities, debt relief services, business opportunities other than 

business arrangements covered by the 

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

through (4); 

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

or (10); or 

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

(7) Telephone calls between a telemarketer and any business to induce 

the purchase of goods or services or a 

charitable contribution by the business, except calls to induce the retail 

sale of nondurable office or cleaning 

supplies; provided, however, that 

§§310.4(b)(1)(iii)(B) and 310.5 shall not 

apply to sellers or telemarketers of 

nondurable office or cleaning supplies. 

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

FR 77559, Dec. 14, 2015] 

§ 310.7 Actions by states and private 

persons. 

(a) Any attorney general or other officer of a state authorized by the state 

to bring an action under the Telemarketing and Consumer Fraud and 

Abuse Prevention Act, and any private 

person who brings an action under that 

Act, shall serve written notice of its 

action on the Commission, if feasible, 

prior to its initiating an action under 

this Rule. The notice shall be sent to 


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§ 310.8 16 CFR Ch. I (1–1–20 Edition) 

the Office of the Director, Bureau of 

Consumer Protection, Federal Trade 

Commission, Washington, DC 20580, and 

shall include a copy of the state’s or 

private person’s complaint and any 

other pleadings to be filed with the 

court. If prior notice is not feasible, 

the state or private person shall serve 

the Commission with the required notice immediately upon instituting its 

action. 

(b) Nothing contained in this Section 

shall prohibit any attorney general or 

other authorized state official from 

proceeding in state court on the basis 

of an alleged violation of any civil or 

criminal statute of such state. 

§ 310.8 Fee for access to the National 

Do Not Call Registry. 

(a) It is a violation of this Rule for 

any seller to initiate, or cause any 

telemarketer to initiate, an outbound 

telephone call to any person whose 

telephone number is within a given 

area code unless such seller, either directly or through another person, first 

has paid the annual fee, required by 

§310.8(c), for access to telephone numbers within that area code that are included in the National Do Not Call 

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

however, that such payment is not necessary if the seller initiates, or causes 

a telemarketer to initiate, calls solely 

to persons pursuant to 

§§310.4(b)(1)(iii)(B)(i) or (ii), and the 

seller does not access the National Do 

Not Call Registry for any other purpose. 

(b) It is a violation of this Rule for 

any telemarketer, on behalf of any seller, to initiate an outbound telephone 

call to any person whose telephone 

number is within a given area code unless that seller, either directly or 

through another person, first has paid 

the annual fee, required by §310.8(c), 

for access to the telephone numbers 

within that area code that are included 

in the National Do Not Call Registry; 

provided, however, that such payment 

is not necessary if the seller initiates, 

or causes a telemarketer to initiate, 

calls solely to persons pursuant to 

§§310.4(b)(1)(iii)(B)(i) or (ii), and the 

seller does not access the National Do 

Not Call Registry for any other purpose. 

(c) The annual fee, which must be 

paid by any person prior to obtaining 

access to the National Do Not Call 

Registry, is $65 for each area code of 

data accessed, up to a maximum of 

$17,765; provided, however, that there 

shall be no charge to any person for accessing the first five area codes of data, 

and provided further, that there shall be 

no charge to any person engaging in or 

causing others to engage in outbound 

telephone calls to consumers and who 

is accessing area codes of data in the 

National Do Not Call Registry if the 

person is permitted to access, but is 

not required to access, the National Do 

Not Call Registry under this Rule, 47 

CFR 64.1200, or any other Federal regulation or law. No person may participate in any arrangement to share the 

cost of accessing the National Do Not 

Call Registry, including any arrangement with any telemarketer or service 

provider to divide the costs to access 

the registry among various clients of 

that telemarketer or service provider. 

(d) Each person who pays, either directly or through another person, the 

annual fee set forth in paragraph (c) of 

this section, each person excepted 

under paragraph (c) from paying the 

annual fee, and each person excepted 

from paying an annual fee under 

§310.4(b)(1)(iii)(B), will be provided a 

unique account number that will allow 

that person to access the registry data 

for the selected area codes at any time 

for the twelve month period beginning 

on the first day of the month in which 

the person paid the fee (‘‘the annual period’’). To obtain access to additional 

area codes of data during the first six 

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

$65 for each additional area code of 

data not initially selected. To obtain 

access to additional area codes of data 

during the second six months of the annual period, each person required to 

pay the fee under paragraph (c) of this 

section must first pay $32 for each additional area code of data not initially 

selected. The payment of the additional fee will permit the person to access the additional area codes of data 

for the remainder of the annual period. 


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Federal Trade Commission § 311.3 

(e) Access to the National Do Not 

Call Registry is limited to telemarketers, sellers, others engaged in or 

causing others to engage in telephone 

calls to consumers, service providers 

acting on behalf of such persons, and 

any government agency that has law 

enforcement authority. Prior to accessing the National Do Not Call Registry, 

a person must provide the identifying 

information required by the operator of 

the registry to collect the fee, and 

must certify, under penalty of law, 

that the person is accessing the registry solely to comply with the provisions of this Rule or to otherwise prevent telephone calls to telephone numbers on the registry. If the person is accessing the registry on behalf of sellers, that person also must identify 

each of the sellers on whose behalf it is 

accessing the registry, must provide 

each seller’s unique account number 

for access to the national registry, and 

must certify, under penalty of law, 

that the sellers will be using the information gathered from the registry 

solely to comply with the provisions of 

this Rule or otherwise to prevent telephone calls to telephone numbers on 

the registry. 

[75 FR 48516, Aug. 10, 2010; 75 FR 51934, Aug. 

24, 2010, as amended at 77 FR 51697, Aug. 27, 

2012; 78 FR 53643, Aug. 30, 2013; 79 FR 51478, 

Aug. 29, 2014; 80 FR 77560, Dec. 14, 2016; 81 FR 

59845, Aug. 31, 2016; 82 FR 39534, Aug. 21, 2017; 

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

27, 2019] 

§ 310.9 Severability. 

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

any provision is stayed or determined 

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

shall continue in effect. 

PART 311—TEST PROCEDURES AND 

LABELING STANDARDS FOR RECYCLED OIL 

Sec. 

311.1 Definitions. 

311.2 Stayed or invalid parts. 

311.3 Preemption. 

311.4 Testing. 

311.5 Labeling. 

311.6 Prohibited acts. 

AUTHORITY: 42 U.S.C. 6363(d). 

SOURCE: 60 FR 55421, Oct. 31, 1995, unless 

otherwise noted. 

§ 311.1 Definitions. 

As used in this part: 

(a) Manufacturer means any person 

who re-refines or otherwise processes 

used oil to remove physical or chemical impurities acquired through use or 

who blends such re-refined or otherwise 

processed used oil with new oil or additives. 

(b) New oil means any synthetic oil or 

oil that has been refined from crude oil 

and which has not been used and may 

or may not contain additives. Such 

term does not include used oil or recycled oil. 

(c) Processed used oil means re-refined 

or otherwise processed used oil or blend 

of oil, consisting of such re-refined or 

otherwise processed used oil and new 

oil or additives. 

(d) Recycled oil means processed used 

oil that the manufacturer has determined, pursuant to section 311.4 of this 

part, is substantially equivalent to new 

oil for use as engine oil. 

(e) Used oil means any synthetic oil 

or oil that has been refined from crude 

oil, which has been used and, as a result of such use, has been contaminated by physical or chemical impurities. 

(f) Re-refined oil means used oil from 

which physical and chemical contaminants acquired through use have been 

removed. 

§ 311.2 Stayed or invalid parts. 

If any part of this rule is stayed or 

held invalid, the rest of it will remain 

in force. 

§ 311.3 Preemption. 

No law, regulation, or order of any 

State or political subdivision thereof 

may apply, or remain applicable, to 

any container of recycled oil, if such 

law, regulation, or order requires any 

container of recycled oil, which container bears a label in accordance with 

the terms of §311.5 of this part, to bear 

any label with respect to the comparative characteristics of such recycled oil 

with new oil that is not identical to 

that permitted by §311.5 of this part. 


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Appendix A