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Oral Remarks – Open Commission Meeting 

April 28, 2022

Advance Notice of Proposed Rulemaking/Notice of Proposed Rulemaking

Telemarketing Sales Rule

Presentation on Section 13(b) of the FTC Act

I. Telemarketing Sales Rule

Thank you, Chair Khan, for giving staff the opportunity to present their excellent work on 

these proposed Notices. Many thanks to Benjamin Davidson from the Division of Marketing 

Practices in the Bureau of Consumer Protection for the informative presentation this afternoon. 

Thanks also to the broader array of staff who worked on the proposed Advance Notice of 

Proposed Rulemaking (ANPRM) and Notice of Proposed Rulemaking (NPRM):

• BCP Division of Marketing Practices: Patricia Hsue, Benjamin Davidson, 

Kati Daffan, and Lois Greisman

• BCP Front Office: Sam Levine, Monica Vaca, Michael Atleson, Leah Frazier,

and Alejandro Rosenberg

• Bureau of Economics: Daniel Wood and Patrick McAlvanah

• Office of General Counsel: Josephine Liu, Kenny Wright, and Richard Gold

As I will explain, the approach proposed by staff is carefully tailored to addressing identified and 

prevalent harms and avoids amendments unsupported by evidence in the record.

As a general matter, I believe that rulemaking is problematic. The Telemarketing Sales Rule, 

however, is a notable exception. In addition to disturbing consumers in their homes, deceptive 

telemarketing calls frequently involve fraud and cause significant financial harm. To address 

these harms, Congress enacted the Telemarketing and Consumer Fraud and Abuse Prevention 

Act (Telemarketing Act) in 1994 to curb deceptive and abusive telemarketing practices.1 The 

Telemarketing Act directed the Commission to adopt a rule prohibiting deceptive or abusive 

telemarketing practices and to consider including recordkeeping requirements.2

 

1 15 U.S.C. 6101-6108. Specifically, as noted in the Commission’s Notice, the Act directed the Commission to adopt 

a rule prohibiting telemarketers from undertaking a pattern of unsolicited calls that reasonable consumers would 

consider coercive or abusive of their privacy, restricting the times of day telemarketers may make unsolicited calls 

to consumers, and requiring telemarketers to promptly and clearly disclose that the purpose of the call is to sell 

goods or service. 15 U.S.C. 6102(a)(3). The Act also generally directed the Commission to address in its rule other 

acts or practices that it found to be deceptive or abusive, including acts or practices of entities or individuals that 

assist and facilitate deceptive telemarketing and, as noted above, to consider recordkeeping requirements. 15 U.S.C. 

6101(a).

2 15 U.S.C. 6101(a). See also 2002 Notice of Proposed Rulemaking, 67 FR 4492, 4510 (Jan. 30, 2002).
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We have a long history of enforcement under this Rule. In fact, the Commission first 

promulgated the Do Not Call provisions of this Rule during my tenure as Chief of Staff to FTC

Chairman Tim Muris roughly 20 years ago.3

The revisions proposed in the Notice of Proposed Rulemaking, or NPRM, seek to improve 

protections for consumers and enable the FTC more effectively to investigate potentially illegal 

conduct. For example, the Notice proposes modifying the exemption to the current Rule with 

respect to business-to-business (B2B) calls. As Mr. Davidson explained, the proposal would 

modify the Rule to apply to B2B calls the prohibitions on both material misrepresentations and 

on false or misleading statements. The NPRM explains, in detail, how our law enforcement cases 

for over a decade have shown a prevalence of unfair or deceptive conduct in B2B telemarketing.

Although the Commission has authority to bring law enforcement actions under Section 5 of the 

FTC Act to address these activities, removing the exemption for this conduct from the Rule 

would allow the Commission to seek additional remedies for consumers for these violations, and 

hopefully would result in greater deterrence. Given the well-documented history of unlawful 

practices in this area, I support this proposal. The proposed recordkeeping provisions similarly 

result from extensive experience in our law enforcement work.

The staff recommendation also includes an Advance Notice of Proposed Rulemaking, or 

ANPRM, that seeks comment on whether to propose additional revisions. For example, the 

Notice asks whether the Rule should continue to exempt inbound telemarketing calls regarding 

technical support services, negative option offers, and B2B calls. Here, in lieu of proposing

amendments, the ANPRM seeks additional comment on the prevalence of unfair and deceptive 

practices, and asks about the benefits and harms to consumers, businesses, and competition that 

might flow from further revisions. I commend this carefully tailored approach that is designed to 

develop the data on prevalence and fully understand the potential market effects before 

proposing changes to the Rule. 

Historical experience reveals that a heavy-handed regulatory approach can cause significant 

harm.4 I will continue to look closely at any proposed rule. But here, the proposals are grounded 

in our law enforcement experience and draw on the expertise of our seasoned staff who address 

these issues daily on the front lines. To staff, thank you again for your thoughtful work on this 

proposed rule. 

3 See, e.g., Public Papers of the Presidents of the United States: George W. Bush, Remarks on the Creation of the 

National Do-Not-Call Registry (June 27, 2003), https://www.govinfo.gov/content/pkg/PPP-2003-book1/html/PPP2003-book1-doc-pg702.htm (commending the FTC for the creation of the Registry); Press Release, Do Not Call 

Registrations Exceed 10 Million (June 27, 2003), https://www.ftc.gov/news-events/news/press-releases/2003/06/donot-call-registrations-exceed-10-million (discussing the millions of registrations for the registry since the launch).

4 Christine S. Wilson & Keith Klovers, The Growing Nostalgia for Past Regulatory Misadventures and the Risk of 

Repeating These Mistakes with Big Tech, 8 J. ANTITRUST ENF’T 10 (2019), 

https://academic.oup.com/antitrust/article/8/1/10/5614371; Dissenting Statement of Commissioner Christine S. 

Wilson Energy Labeling Rule, Comm’n Matter No. R611004 (Oct. 22, 2019), 

https://www.ftc.gov/system/files/documents/public_statements/1551786/r611004_wilson_dissent_energy 

_labeling_rule.pdf. 
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II. Section 13(b) of the FTC Act

Thank you, Chair Khan, for putting this important issue on today’s agenda. Thank you to 

Audrey Austin for the informative presentation this afternoon; thanks also to staff from across 

the agency involved in this presentation. 

• BCP Front Office: Audrey Austin, Bikram Bandy, Ian Barlow, and Elisa 

Jillson

• BCP Division of Enforcement: James Kohm

• BCP Division of Consumer and Business Education: June Chang, Karen 

Hobbs, and Jennifer Leach

• BCP Division of Consumer Response and Operations: Nicole Christ, Aaron 

Hutchinson, and Maria Mayo

• Office of the General Counsel: Josephine Liu and Elizabeth Tucci

• Bureau of Competition Healthcare Division: Bradley Scott Albert

I would also like to acknowledge the work of countless other professionals across the agency 

who have been working on 13(b) issues and strategies both in anticipation of and following the 

Supreme Court’s decision.

I want to share a few words regarding my views on the Supreme Court’s decision in

AMG,

5 13(b), and potential Congressional legislation. I support the FTC’s use of Section 13(b) 

to seek equitable monetary relief, in appropriate cases, and also to challenge conduct that 

wrongdoers already have halted. I also support working with Congress to restore the ability of 

the FTC to use Section 13(b) to pursue wrongdoers – with appropriate guardrails. 

As I have acknowledged previously, stakeholders have expressed concerns regarding 

various aspects of Section 13(b).6 Some are concerned about the absence of a statute of 

limitations. I support including one in legislative revisions to 13(b). Others are concerned about 

the unbounded use of 13(b) to achieve disgorgement in antitrust cases. I agree that guiding 

principles on when the FTC will seek disgorgement, perhaps as detailed in the FTC’s nowrescinded 2003 Policy Statement on Monetary Equitable Remedies in Competition Cases, would 

be constructive. And yet others have expressed concern about the application of Section 13(b) in 

consumer protection cases that involve not fraud but legitimate companies selling legitimate 

products, albeit with deceptive claims. Congress could set forth a framework in 13(b) under 

which courts must evaluate the value consumers may have retained from the product or service 

despite the deception. This approach has support in the case law and could assuage those 

concerns.7

5 AMG Capital Management, LLC v. FTC, 593 U.S. __ (2021).

6 See Oral Statement of Commissioner Christine S. Wilson, Before the U.S. Senate Committee on Commerce, 

Science and Transportation (Apr. 20, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1589180/opening_statement_final_for_postingrevd.p

df. 

7 See, e.g., FTC v. Commerce Planet, Inc., 878 F. Supp. 1048 (C.D. Cal. 2012), aff’d, 815 F.3d 593, 603 (9th Cir. 

2016) (affirming the district court decision that “relied on the testimony in question to reduce the award from $36.4 

million to $18.2 million”); FTC v. Lane Labs-USA, Inc., 2014 WL 268642, *2 (D.N.J. 2014) (explaining that the 
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I share these concerns but believe they can be addressed. But I also have another concern. 

In the wake of the Supreme Court’s decision in AMG, the agency naturally has sought to identify 

other avenues to obtain relief for consumers. Yes, the AMG decision has impacted our ability to 

return money to consumer victims. And yes, we need to evaluate carefully our existing authority 

to ensure we are using it fully, but appropriately, in furtherance of our mission. But the 

Commission must avoid using its authority in ways that exceed the boundaries of underlying 

statutes and corresponding Congressional intent. 

The recently promulgated Made in the USA Rule provides one example of overreach. 

There, the Commission exceeded its statutory authority to regulate labeling claims.8 And there 

have been other proposals behind the scenes that fortunately have not come to pass. If we engage 

in rulemaking and enforcement actions that exceed our jurisdiction, we will not engender 

confidence among members of Congress who have expressed qualms about the FTC’s history of 

frolics and detours.

9 But we need Congress to clarify our 13(b) authority, so we must 

demonstrate that we will be careful stewards of that authority. Unfortunately, I am not confident 

that current Commission leadership has demonstrated a desire to walk that path – which will be 

to the detriment of the FTC, and ultimately consumers. 

For this reason, I urge my colleagues to tread carefully.

court has discretion in determining how to compensate consumers for the violations, was not constrained to total 

revenues, and could consider an award of the premium Defendants charged for the product over comparable 

products during the relevant period as well as Defendants’ profits traced to only the offending advertisements); FTC 

v. Bronson Partners, LLC, 674 F. Supp. 2d 373, 384 (D. Conn. 2009) (explaining that “[t]he formula for calculating 

redress for consumer injury is straightforward: "(1) calculate the gross receipts received from all consumers 

subjected to the contumacious acts of the defendants, (2) offset gross receipts to the extent the defendants prove that 

consumers either received refunds or were satisfied with their purchases, [and] (3) order the liable defendants to pay 

the resulting amount. . . .") (citation omitted); FTC v. Kuykendall, 371 F.3d 745, 766 (10th Cir 2004) (describing the 

calculation of consumer loss and explaining that “defendants might be able to show that some customers received 

full refunds of their payments or that others were wholly satisfied with their purchases and thus suffered no 

damages.”)

8 Dissenting Statement of Commissioner Christine S. Wilson, Final Rule related to Made in U.S.A. Claims (July 1, 

2021), https://www.ftc.gov/system/files/documents/public_statements/1591494/2021-07-

01_commissioner_wilson_statement_musa_final_rule.pdf; see also Dissenting Statement of Commissioner Christine 

S. Wilson, Policy Statement on the Breaches by Health Apps and Other Connected Devices (Sept. 15, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1596356/wilson_health_apps_policy_statement_diss

ent_combined_final.pdf (discussing that the Policy Statement applies the Health Breach Notification Rule in a 

manner that appears to exceed the FTC’s authority).

9 See Transcript: Oversight of the Federal Trade Commission: Strengthening Protections for Americans’ Privacy and 

Data Security (May 8, 2019), available at: https://docs.house.gov/meetings/IF/IF17/20190508/109415/HHRG-116-

IF17-Transcript-20190508.pdf. At this Hearing, Rep. McMorris Rogers stated: “In various proposals, some groups 

have called for the FTC to have additional resources and authorities. I remain skeptical of Congress delegating broad 

authority to the FTC or any agency. However, we must be mindful of the complexities of this issue as well as the 

lessons learned from previous grants of rulemaking authority to the Commission.” Transcript at 8-9. Rep. Walden 

similarly stated: “it has been a few decades, but there was a time when the FTC, as we heard, was given broad 

rulemaking authority but stepped past the bounds of what Congress and the public supported. This required further 

congressional action and new restrictions on the Commission.” Transcript at 62.