1

[Billing Code: 6750-01-S]

FEDERAL TRADE COMMISSION

16 CFR Part 310

RIN 3084– AB19

Telemarketing Sales Rule

AGENCY: Federal Trade Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Federal Trade Commission (“FTC” or “Commission”) seeks public comment 

on proposed amendments to the Telemarketing Sales Rule (“TSR”). The proposed amendments 

would require telemarketers and sellers to maintain additional records of their telemarketing 

transactions, prohibit material misrepresentations and false or misleading statements in business 

to business (“B2B”) telemarketing transactions, and add a new definition for the term “previous 

donor.” The modified recordkeeping requirements are necessary to protect consumers from 

deceptive or abusive telemarketing practices and support the Commission’s law enforcement 

mandate to enforce the TSR. The prohibition on material misrepresentations and false or 

misleading statements is necessary to protect businesses from deceptive telemarketing practices. 

The new definition of “previous donor” will clarify that a telemarketer may not use prerecorded 

messages to solicit charitable donations on behalf of a charitable organization unless the 

recipient of the call made a donation to that particular charitable organization within the prior 

two years. 

DATES: Comments must be received by [INSERT DATE 60 DAYS AFTER DATE OF

PUBLICATION IN THE FEDERAL REGISTER].

ADDRESSES: Interested parties may file a comment online or on paper by following the 
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instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION 

section below. Write “Telemarketing Sales Rule (16 CFR Section 310 - NPRM) (Project No. 

R411001)” on your comment, and file your comment through https://www.regulations.gov. If 

you prefer to file your comment on paper, mail your comment to the following address: Federal 

Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue, NW, Suite CC-5610 

(Annex B), Washington, DC 20580, or deliver your comment to the following address: Federal 

Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, 

Suite 5610 (Annex B), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Benjamin R. Davidson, (202) 326-3055, 

bdavidson@ftc.gov, or Patricia Hsue, (202) 326-3132, phsue@ftc.gov, Division of Marketing 

Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania 

Avenue, NW, Mail Stop CC-8528, Washington, DC 20580.

SUPPLEMENTARY INFORMATION: 

I. Introduction

The Federal Trade Commission issues this Notice of Proposed Rulemaking (“NPRM”) to 

invite public comment on proposed amendments to the TSR. The proposed amendments to the 

recordkeeping requirements reflect evolutions in the marketplace that make it more difficult for 

the Commission and other regulators to obtain records of sellers’ and telemarketers’

telemarketing activities to enforce the TSR. The principal proposed amendments would require 

sellers or telemarketers to retain additional records of their telemarketing activities, and clarify 

the existing recordkeeping requirements to more clearly delineate the information telemarketers 

or sellers must keep to comply with those provisions. The Commission is also proposing to 

prohibit in B2B telemarketing transactions: (1) several types of material misrepresentations in 
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the sale of goods or services; and (2) false or misleading statements to induce a person to pay for 

goods or services or to induce a charitable contribution (collectively, “misrepresentations”). This 

prohibition is necessary to help protect businesses from deceptive telemarketing practices. 

Finally, the Commission is proposing a new definition of the term “previous donor” to clarify 

that telemarketers are prohibited from using prerecorded messages to solicit charitable 

contributions from consumers on behalf of a non-profit charitable organization unless the 

consumer donated to that non-profit charitable organization within the last two years.

This NPRM invites written comments on all issues raised by the proposed amendments, 

including answers to the specific questions set forth in Section IV of this Notice.

II. Overview of the Telemarketing Sales Rule

Congress enacted the Telemarketing and Consumer Fraud and Abuse Prevention Act 

(“Telemarketing Act” or “Act”) in 1994 to curb deceptive and abusive telemarketing practices

and provide key anti-fraud and privacy protections for consumers receiving telephone 

solicitations to purchase goods or services.

1 The Telemarketing Act directed the Commission to 

adopt a rule prohibiting deceptive or abusive telemarketing practices, including prohibiting 

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

consider coercive or abusive of their privacy, restricting the time 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 services.2

 The Act also generally directed the 

Commission to address in its rule other acts or practices that it found to be deceptive or abusive, 

1 15 U.S.C. 6101-6108.

2 15 U.S.C. 6102(a)(3). The Telemarketing Act was subsequently amended in 2001 to add Section 15 U.S.C. 

6102(a)(3)(D), which requires a telemarketer to promptly and clearly disclose that the purpose of the call is to solicit 

charitable contributions. See Uniting and Strengthening America by Providing Appropriate Tools Required to 

Intercept and Obstruct Terrorism Act (“USA PATRIOT Act”), Pub. L. 107-56, 115 Stat. 272 (Oct. 26, 2001).
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including acts or practices of entities or individuals that assist and facilitate deceptive 

telemarketing, and to consider including recordkeeping requirements.

3

 Finally, the Act 

authorized state Attorneys General, or other appropriate state officials, and private litigants to 

bring civil actions in federal district court to enforce compliance with the FTC’s rule.

4

Pursuant to the Act’s directive, the FTC promulgated the TSR on August 23, 1995.5 The 

FTC included recordkeeping requirements in Section 310.5, stating the provision was “necessary 

to enable law enforcement agencies to ascertain whether sellers and telemarketers are complying 

with the requirements of the Final Rule, to identify persons who are involved in any challenged 

practices, and to identify customers who may have been injured.”6 The FTC also included a 

prohibition on misrepresenting several categories of material information in Section 310.3(a)(2).

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The categories were based on “established case law” and “allegations in complaints filed in 

recent years by the Commission.”8 The Commission also included a prohibition on making false 

or misleading statements to induce a person to pay for goods or services, or to induce a charitable 

contribution, in Section 310.3(a)(4).

9

 Section 310.3(a)(4) was designed to “provide[] law 

enforcement with flexibility to address new ways that sellers and telemarketers engaged in fraud 

might attempt to take consumers’ money.”10 

The original TSR excluded several types of calls, including B2B calls other than those 

3 15 U.S.C. 6101(a). See also 2002 Notice of Proposed Rulemaking, 67 FR 4492, 4510 (Jan. 30, 2002).

4 15 U.S.C. 6103, 6104. 

5 See Statement of Basis and Purpose and Final Rule (“Original TSR”), 60 FR 43842 (Aug. 23, 1995). 

6 Id. at 43857.

7 Id. at 43848.

8 Id.

9 Id. at 43851. 

10 Id.
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that sold office and cleaning supplies.

11 The Commission required B2B calls that sold office and 

cleaning supplies to comply with the TSR because, in the Commission’s experience, calls 

involving the sale of those products were “by far the most significant business-to-business 

problem area.”12

Since then, the Commission has amended the Rule on four occasions: (1) in 2003 to, 

among other things, create the National Do-Not Call Registry and extend the Rule to 

telemarketing calls soliciting charitable contributions;

13 (2) in 2008 to prohibit prerecorded 

messages (“robocalls”) selling a good or service or soliciting charitable contributions;

14 (3) in 

2010 to ban the telemarketing of debt relief services requiring an advance fee;15 and (4) in 2015 

to bar the use in telemarketing of certain novel payment mechanisms widely used in fraudulent 

transactions.16 

A. 2008 Robocall Amendment for Charitable Solicitations

Pursuant to the Uniting and Strengthening America by Providing Appropriate Tools 

Required to Intercept and Obstruct Terrorism Act (“USA PATRIOT Act”),17 the Commission 

amended the TSR in 2003 to extend its coverage to telemarketing calls soliciting charitable 

11 Id. at 43867. 

12 Id. at 43861. 

13 See Statement of Basis and Purpose and Final Amended Rule (“2003 TSR Amendments”), 68 FR 4580 (Jan. 29, 

2003) (adding Do Not Call Registry, charitable solicitations, and other provisions).

14 See Statement of Basis and Purpose and Final Rule Amendments (“2008 TSR Amendments”), 73 FR 51164 (Aug. 

29, 2008) (addressing the use of robocalls).

15 See Statement of Basis and Purpose and Final Rule Amendments (“2010 TSR Amendments”), 75 FR 48458 (Aug. 

10, 2010) (adding debt relief provisions). The prohibition on misrepresenting material aspects of debt relief services 

in 310.3(a)(2)(x) was added in 2010 along with other debt relief provisions. See 2010 TSR Amendments, 75 FR at 

48498. The Commission subsequently published correcting amendments to the text of section 310.4 of the TSR. 

Telemarketing Sales Rule; Correcting Amendments, 76 FR 58716 (Sept. 22, 2011).

16 See Statement of Basis and Purpose and Final Rule Amendments (“2015 TSR Amendments”), 80 FR 77520 (Dec. 

14, 2015) (prohibiting the use of remotely created checks and payment orders, cash-to-cash money transfers, and 

cash reload mechanisms).

17 Pub. L. 107-56, 115 Stat. 272 (Oct. 26, 2001).
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contributions.18 As part of that amendment, the Commission defined “donor” as “any person 

solicited to make a charitable contribution.”19 The Commission declined to limit the definition 

of donor to those who have “an established business relationship with the non-profit charitable 

organization.”20 The Commission stated its intent was for the term “donor...[to] encompass not 

only those who have agreed to make a charitable contribution but also any person who is 

solicited to do so, to be consistent with [the Rule’s] use of the term ‘customer.’”21

In 2008, the Commission amended the TSR to prohibit robocalls soliciting charitable 

donations unless the robocall was delivered to a “member of, or previous donor to, a non-profit 

charitable organization on whose behalf the call is made” and the seller or telemarketer otherwise 

complied with the provisions of Section 310.4(b)(1)(v)(B).22 In allowing robocalls to previous 

donors, the Commission stated it was recognizing the strong interests of non-profit charitable 

organizations in reaching those with “whom the charity has an existing relationship – i.e. 

members of, or previous donors to[,] the non-profit organization on whose behalf the calls are 

made....”23 The Commission concluded that allowing “telefunders to make impersonal 

prerecorded cold calls on behalf of charities that have no prior relationship with the call 

recipients...would defeat the amendment’s purpose of protecting consumers’ privacy.”24 

Although the Commission’s Statement of Basis and Purpose for the 2008 Amendment makes it 

clear that the Commission intended previous donor to mean a donor who has previously provided 

18 2003 TSR Amendments, 68 FR at 4582.

19 Id. at 4590.

20 Id.

21 Id. at 4590-91.

22 See 2008 TSR Amendments, 73 FR at 51185. 

23 Id. at 51193.

24 Id. at 51194.
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a charitable contribution to the particular non-profit charitable organization, the Commission did 

not include a definition of the term “previous donor” to explicitly effect that intention. 

Because the TSR’s definition of donor is “any person solicited to make a charitable 

contribution,” the Commission’s 2008 Amendment could be misinterpreted as allowing a

telemarketer to send robocalls to any consumer it had previously solicited for a donation on 

behalf of a non-profit charitable organization, regardless of whether the consumer actually 

agreed to donate to that charitable organization. Thus, the Commission proposes to add a new 

definition of “previous donor” to clarify the exemption, explicitly referencing consumers from

whom the non-profit charitable organization has received a donation in the last two years.25

B. TSR’s Recordkeeping Provisions Regulatory History

Since the Commission promulgated the TSR in 1995, it has not made substantial changes 

to its recordkeeping requirements under Section 310.5. The TSR generally requires

telemarketers and sellers to keep for a 24-month period records of: (1) any substantially different 

advertisement, including telemarketing scripts; (2) lists of prize recipients, customers, and

telemarketing employees directly involved in sales or solicitations; and (3) all verifiable 

authorizations or records of express informed consent or express agreement.26 They may keep 

the records in any form and in the same manner and format as they would keep such records in 

the ordinary course of business, and they may allocate responsibilities of complying with the 

25 The Commission proposes implementing a time limit for the existence of an established relationship so that 

consumers will not receive robocalls in perpetuity from organizations to which they have donated. The Commission 

chose two years to account for the possibility that consumers who donate annually may not necessarily donate 

exactly one year apart (i.e., one year the consumer might donate in January and the following year the consumer 

might not donate until December). The Commission seeks public comment on whether two years is an appropriate 

time period.

26 16 CFR 310.5(a).
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Rule’s recordkeeping requirements between the seller and telemarketer.27

During its 2003 and 2010 rulemaking processes, the Commission considered whether it 

should modify the recordkeeping provisions in tandem with the substantive amendments under 

consideration.28 In each instance, however, the Commission declined to make substantial 

modifications to that provision, deeming such changes unnecessary to enact the substantive

amendments it was promulgating.

29 In its 2003 Amendment adding the DNC provisions and 

extending the TSR to charitable solicitations, the Commission inserted a reference to 

“solicitations” in Section 310.5(a)(4) to require telemarketers and sellers to keep records of 

employees involved in charitable solicitations.

30 It also inserted the phrase “express informed 

consent or express agreement” in Section 310.5(a)(5) to require sellers and telemarketers to keep 

records of those agreements, in addition to verifiable authorizations, since those agreements were 

newly added terms in the 2003 amendments.

31 For its 2010 Amendment, the Commission noted 

that the existing recordkeeping requirements would extend to new providers of debt relief 

services as a result of the Amendment.

32

In 2015, the Commission amended the TSR to expressly state that a seller or telemarketer 

bears the burden of demonstrating that a seller has an existing business relationship (“EBR”) 

with a consumer whose number is on the Commission’s Do Not Call (“DNC”) Registry, or has 

obtained express written agreement (“EWA”) from such a consumer, as required by Section 

27 16 CFR 310.5(b) & (c).

28 In 2003, the Commission added a recordkeeping requirement for the abandoned call safe harbor but did not 

include that provision in Section 310.5(a). See 2003 TSR Amendments, 68 FR at 4645. 

29 See, e.g., 2003 TSR Amendments, 68 FR at 4653-54 (declining to implement any of the suggested recordkeeping 

revisions that were raised in the public comments); 2010 TSR Amendments, 75 FR at 48502.

30 2003 TSR Amendments, 68 FR at 4653-54.

31 Id.

32 2010 TSR Amendments, 75 FR at 48502.
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310.4(b)(1)(iii)(B)(1)-(2).

33 The Commission stated that these two amendments reflected 

existing law, but the Commission adopted the amendments to make it clear that the burden of

proof was on sellers and telemarketers to assert these affirmative defenses.

34 The Commission 

also reiterated that this carve out from the DNC prohibitions applies only to sellers “that obtained 

the EWA directly from, or has an EBR directly with, the person called.”35 The Commission, 

however, did not amend the recordkeeping requirements to clarify what records a seller or 

telemarketer must keep to assert these affirmative defenses, believing that telemarketers and 

sellers would naturally maintain such records in the ordinary course of business without 

affirmatively being required to do so. 

The telemarketing landscape has changed drastically since the Commission promulgated 

the Rule’s original recordkeeping provisions. Technological advancements have made it easier 

and cheaper for unscrupulous telemarketers to engage in illegal telemarketing, resulting in a 

greater proliferation of unwanted calls.36 Technological advancements have also reduced the 

33 2015 TSR Amendments 80 FR at 77555-56. 

34 Id.

35 Id. (emphasis added). As such, “cold calls to consumers whose name and numbers were purchased from a thirdparty list broker are [still] prohibited under the TSR’s do-not-call provisions because the calls are not placed by the 

specific seller that obtained the EWA or EBR.” Id.

36 See, e.g., Prepared Statement of the Federal Trade Commission Before the United States Senate Aging Committee 

on Commerce Science and Transportation: Abusive Robocalls and How We Can Stop Them (Apr. 18, 2018), 

available at

https://www.ftc.gov/system/files/documents/public_statements/1366628/p034412_commission_testimony_re_abusi

ve_robocalls_senate_04182018.pdf (last visited Jan. 31, 2022). From 2016 to 2020, the Commission received on 

average over 5.5 million Do Not Call complaints per year, and the DNC Registry currently has over 240 million 

active telephone numbers. FTC, Do Not Call Data Book 2020 (“2020 DNC Databook”), at 6 (Oct. 2020), available 

at https://www.ftc.gov/system/files/documents/reports/national-do-not-call-registry-data-book-fiscal-year2020/dnc_data_book_2020.pdf (last visited Jan. 31, 2022). By comparison, within one year of its launch, the DNC 

Registry had over 62 million active telephone numbers registered, and the Commission received over 500,000 Do 

Not Call complaints. See Annual Report to Congress for FY 2003 and 2004 Pursuant to the Do Not Call 

Implementation Act on Implementation of the National Do Not Call Registry, at 3 (Sept. 2005), available at

https://www.ftc.gov/sites/default/files/documents/reports/national-do-not-call-registry-annual-report-congress-fy2003-and-fy-2004-pursuant-do-not-call/051004dncfy0304.pdf (last visited Jan. 31, 2022); National Do Not Call 

Registry Data Book for Fiscal Year 2009, at 4 (Nov. 2009), available at

https://www.ftc.gov/sites/default/files/documents/reports_annual/fiscal-year-2009/091208dncadatabook.pdf (last 
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burden and costs of recordkeeping.37 While the Commission has made substantial amendments 

to the TSR over the last 25 years to address the rise in unwanted calls—including by identifying 

new abusive and deceptive telemarketing practices such as prohibiting robocalls and calls to 

consumers on the DNC Registry38—the TSR’s recordkeeping provisions have remained largely 

static. As such, they no longer adequately meet the needs of the Commission’s law enforcement 

mission to protect consumers. 

C. Law Enforcement Challenges in Enforcing the TSR

To date, the Commission has brought more than 150 enforcement actions against 

companies and telemarketers under the TSR for DNC, robocall, spoofed caller identification 

(“caller ID”), and assisting and facilitating violations.39 In bringing those cases, the 

Commission has identified several challenges in obtaining the necessary records to determine 

whether a particular telemarketing campaign is covered by and compliant with the TSR, which 

entities are involved in the telemarketing campaign, and which consumers have been harmed by 

violations of the TSR. 

The primary hurdles are in: (1) identifying the telemarketer and seller responsible for the 

telemarketing campaign; (2) obtaining records of the telemarketing calls reflecting the date, time, 

duration, and disposition of each call, as well as the phone number(s) that placed and received 

each call (i.e. “call detail records”); and (3) linking the content of the telemarketing calls with the 

call detail records to determine which TSR provisions might apply to the telemarketing activity. 

visited Jan. 31, 2022).

37 See infra Section V.C and note 95.

38 See supra notes 5-13.

39 See Enforcement of the Do Not Call Registry, available at https://www.ftc.gov/news-events/media-resources/donot-call-registry/enforcement (last visited Jan. 31, 2022).
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The TSR currently requires telemarketers and sellers to retain records of “all substantially 

different advertising, brochures, telemarketing scripts and promotional materials” used in their 

telemarketing activities.40 It does not require sellers or telemarketers to keep other records of 

their telemarketing activities including call detail records or records of the nature of their 

telemarketing campaigns, such as whether the campaign used prerecorded messages, placed calls 

to consumers (“outbound telemarketing”) or induced calls from consumers through advertising 

(“inbound telemarketing”), or solicited from consumers or businesses. Nor does it require 

telemarketers or sellers to keep records that link a particular telemarketing campaign to a set of 

call detail records. The Commission’s law enforcement experience has shown that, absent a 

recordkeeping requirement, it is increasingly difficult to obtain these critical records and

associate the records with the nature, purpose, or content of a particular telemarketing campaign, 

frustrating the Commission’s law enforcement efforts. As discussed below, the Commission

proposes recordkeeping requirements that ensure it is able to adequately assess whether a 

telemarketing campaign complies with the TSR and remedy the current gaps impeding effective 

law enforcement.

When the TSR was promulgated in 1995, the Commission relied on consumer complaints

about unwanted calls to evaluate whether a particular telemarketing campaign likely violated the 

TSR and warranted further investigation. It also relied on consumer complaints to identify the 

relevant telemarketer responsible for making the calls. Specifically, the Commission could use 

the calling number included in the consumer’s complaint to identify the voice service provider 

(“voice provider”)41 responsible for sending the call, and send a civil investigative demand 

40 16 CFR 310.5(a).

41 In this NPRM, a voice service provider broadly refers to any provider of telephony services, including 

telecommunications carriers, interconnected VoIP service providers, and any other voice service providers.
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(“CID”) to the voice provider in question to identify the responsible telemarketer through the 

voice provider’s billing records. The Commission could also obtain the voice provider’s call 

detail records for that telemarketer and use that data as a proxy for the seller’s or telemarketer’s

telemarketing campaign. 

The proliferation of new technologies over the years has enabled bad actors to “spoof” or 

fake a calling number and send calls cheaply from within the United States and abroad.

42 As a 

result, bad actors have sent increasingly large numbers of unlawful spoofed calls, making it more

difficult for law enforcement to identify the telemarketer and seller responsible for a particular 

telemarketing campaign and obtain the applicable call detail records.

43 For example, to identify 

a suspect telemarketer using “spoofed” calls, the Commission needs to issue CIDs to multiple 

voice providers in order to trace the call from the consumer to the telemarketer’s voice provider. 

In some instances, by the time the Commission has identified the relevant voice provider, the

voice provider may not have retained the records.

44 As such, the call detail records either no 

longer exist or are not available for law enforcement purposes, and the Commission cannot 

identify the bad actor responsible for the spoofed calls. While the Commission has employed 

other tools to successfully identify and take action against telemarketers violating the law, the 

absence of call detail records can present challenges, particularly in demonstrating violations of 

the Rule’s do-not-call provisions.

45

42 See supra note 36. On June 25, 2019, the FTC announced “Operation Call it Quits,” which included 94 actions 

against illegal robocallers, many of which used spoofing technology. See Press Release, FTC, Law Enforcement 

Partners Announce New Crackdown on Illegal Robocalls (June 25, 2019), available at https://www.ftc.gov/newsevents/press-releases/2019/06/ftc-law-enforcement-partners-announce-new-crackdown-illegal (last visited Jan. 31, 

2022). 

43 Id.

44 In other instances, voice providers assert it is cost prohibitive to retrieve because they only maintain records in an 

easily retrievable format for several months before archiving them in the ordinary course of business.

45 In March 2020, the FCC adopted new rules requiring all originating and terminating voice providers to adopt the 
13

Even when the Commission is successful in obtaining the call detail records from the 

voice provider and identifying the seller or telemarketer responsible for the telemarketing 

campaign, that information is limited. As noted above, call detail records typically include only:

(1) the phone number that placed the call (“calling number”); (2) the phone number that received 

the call (“called number”); (3) the date, time, and duration of the call; and (4) the disposition of 

the call (i.e., was the call answered or connected, transferred to another phone number, 

disconnected or dropped). The records do not contain other important information, including the 

purpose of the call, the identity of the seller or charitable organization, or the nature of the call, 

such as whether the telemarketer used prerecorded messages. Although sellers and telemarketers 

are required to keep records of their advertisements, such as telemarketing scripts, which may 

include information on the purpose of the call or the identity of the seller, they are not currently 

required to maintain records that identify the specific telemarketing campaign in which they used 

each advertisement or the associated call detail records.

46 

The lack of records linking the call detail records to the nature, purpose, and content of 

the telemarketing campaign presents challenges to law enforcement. Without this link, it is 

difficult for the Commission to ascertain, among other issues: (1) the seller or charitable 

organization for which the telemarketer is placing calls; (2) the good or service that the 

telemarketer is offering for sale or the charitable purpose for which the telemarketer is soliciting 

implementation of caller ID authentication using technical standards known as “STIR/SHAKEN” in their Internet 

Protocol (IP) portions of their networks by June 30, 2021 to reduce the number of spoofed robocalls. See FCC, 

Press Release, FCC Mandates That Phone Companies Implement Caller ID Authentication to Combat Spoofed 

Robocalls (Mar. 31, 2020), available at https://docs.fcc.gov/public/attachments/DOC-363399A1.pdf (last visited 

Jan. 31, 2022). The FCC is also exploring whether to expand the mandate to intermediate voice providers and 

whether adoption of similar standards on the non-IP portions of voice provider networks is feasible. Id. While the 

adoption of STIR/SHAKEN standards will provide a means of authenticating the caller ID information for some 

calls, spoofed calls will continue to challenge law enforcement in the future. 

46 16 C.F.R. 310.5(a)(1) 
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contributions; (3) whether the telemarketer used robocalls, was telemarketing to consumers or 

businesses, or the caller ID,

47 if any, they transmitted in outbound telephone calls; and (4) the

representations made during the call. Moreover, without information linking the call detail 

records to a particular telemarketing campaign, the Commission cannot tell when the 

telemarketing campaigns began and ended or how many calls the telemarketer made in a 

particular telemarketing campaign. 

In the FTC’s law enforcement experience, sellers and telemarketers often claim they 

cannot provide this information because they do not keep call detail records or records 

associating a telemarketing campaign with the voice provider’s call detail records. For example,

telemarketers typically assert that the voice provider’s call detail records include both their

telemarketing and non-telemarketing calls (i.e., non-sales calls) but they cannot identify those 

that are telemarketing calls because they do not keep such records. In other instances, 

telemarketers who run telemarketing campaigns on behalf of numerous sellers or non-profit 

charitable organizations assert they cannot identify the telemarketing calls that they made on 

behalf of a particular client. Without such information, the Commission cannot readily

determine whether all of the calls pertain to a particular telemarketing campaign that the 

Commission is seeking information about or if the calls are for an unrelated seller and 

telemarketing campaign. 

The ability to associate relevant call detail records with information on the nature and 

content of the call is also critical for inbound telemarketing campaigns. Although many such 

calls are exempt from the TSR under Sections 310.6(b)(4) through (b)(6), the exemptions do not 

47 Voice providers frequently state that their call detail records contain the calling number, or the phone number that 

actually placed the call, but they do not have information on the name that the telemarketer chooses to submit to the 

call recipient’s caller identification service, which provides caller identification name information to the call 

recipient. 
15

apply to all inbound telemarketing calls and many such calls must still comply with the TSR.48 

Telemarketers frequently claim that the voice provider’s records of their inbound calls (when 

they exist) do not uniformly reflect calls that would be subject to the TSR. For example, they 

claim that the voice providers’ records of inbound calls include customer service calls that would 

be exempt from the TSR. 

Sellers or telemarketers are in the best position to have information about their 

telemarketing calls. Thus, the Commission proposes new recordkeeping requirements that 

require sellers and telemarketers to retain records of this information. Such records are

important in enabling the Commission to ascertain what sections of the TSR apply to their 

telemarketing campaigns and whether the telemarketing campaigns are compliant with the TSR. 

The Commission also proposes to clarify existing recordkeeping requirements to address 

telemarketers’ and sellers’ frequent assertion that the TSR does not apply to their telemarketing 

campaigns because one of the TSR exemptions applies. Commonly asserted defenses to the 

FTC’s law enforcement actions include that the calls were sales calls to business entities and not 

consumers, the seller or telemarketer has an EBR or EWA to make calls to consumers registered 

on the DNC Registry, or the seller has an express agreement, in writing, authorizing that 

particular seller to place robocalls to a consumer. Another frequently asserted defense is that the 

consumer never requested to be placed on the entity-specific do-not-call list, made the request

only after the telemarketing call had been made, or that the consumer had asked to be placed on 

the entity-specific do-not-call list for one seller but the telemarketer had made subsequent calls 

on behalf of a different seller. 

48 16 C.F.R. 310.6(b)(5) & (6) (e.g., inbound telemarketing calls regarding prize promotions, investment 

opportunities, and debt relief services, among others, are excluded from the inbound telemarketing exemption).
16

While the Commission has amended the TSR to address some of these defenses, making

it clear that the seller or telemarketer bears the burden of proof,

49 some sellers and telemarketers 

still assert the defense in response to law enforcement inquiries even if their records are 

incomplete. For example, in some instances, the telemarketer’s purported proof of a consumer’s 

express written agreement is simply a list of the consumers’ IP addresses and timestamps of the 

purported agreement. The Commission does not believe that information is sufficient proof to 

demonstrate that a consumer has provided express written agreement to receive robocalls or to 

receive outbound telemarketing calls when a consumer has placed her phone number on the 

FTC’s DNC Registry. Thus, in addition to proposing new recordkeeping requirements, the 

Commission also proposes amending existing recordkeeping provisions to provide further 

guidance and clarification on the type of information necessary to assert an applicable 

affirmative defense.

D. Public Comments on Recordkeeping

In 2014, the Commission embarked on a regulatory review of the TSR, in which it sought 

feedback on a number of issues including the existing recordkeeping requirements.50 It raised 

some of the challenges that the Commission has faced in bringing enforcement actions under the 

TSR, including the difficulty in obtaining call detail records, and sought feedback on whether the 

current recordkeeping requirements are sufficient for law enforcement agencies to enforce the 

Rule’s DNC provisions.51 Specifically, the Commission raised the possibility of requiring sellers 

and telemarketers to “retain records of the telemarketing calls they have placed” to address the 

Commission’s ongoing law enforcement challenges. It asked for public comments on: (1) the 

49 See, e.g., 2015 TSR Amendments 80 FR at 77555-56.

50 See 2014 TSR Rule Review, 79 FR 46732, 46735 (Aug. 11, 2014).

51 Id.
17

cost and burden that the lack of such a requirement imposed on law enforcement and consumers, 

(2) the cost and burden such a provision would impose, particularly for small businesses, and (3) 

whether there is an alternative solution that would reduce the law enforcement challenges and

minimize the burden on industry.52 

The Commission received comments from other state and federal law enforcement 

agencies confirming that the problems the Commission has experienced in enforcing the TSR are 

not unique to the agency.

53 The Department of Justice (“DOJ”) cited “extreme difficulties” in 

obtaining call records from voice providers that provide usable information because they “may 

contain, among other things, non-telemarketing calls” or calls by telemarketers for other clients 

not targeted in the investigation.54 DOJ also argued that the burden of keeping call detail records 

would be “slight” since “computer data storage prices are no longer an obstacle to maintaining 

records,” and stated that it is “confident that most, if not all, reputable sellers and telemarketers 

currently maintain accurate records of their outbound calls.”55 

The National Association of Attorneys General (“NAAG”) stated that in its experience

subpoenas to voice providers are “time-consuming and frequently fruitless,” with those served 

on offshore voice providers going unanswered and U.S. voice providers either refusing to 

provide the records or requesting an “exorbitant fee for doing so.”56 NAAG also argued 

“savings realized by telemarketers” from modern dialing technologies “should not be realized at 

52 Id. at 46738.

53 The public comments submitted in response to the 2014 TSR Rule Review are available at 

https://www.ftc.gov/policy/public-comments/2014/08/initiative-578 (last visited Jan. 31, 2022).

54 DOJ, No. 00111, at 1. DOJ notes that multiple defendants have “asserte[d] as a defense the inaccuracies of their 

own telemarketing call records.” Id. (emphasis in original).

55 Id. at 2.

56 NAAG, No. 00117, at 11-12.
18

the expense of law enforcement’s resources and consumer protection.”57 

Consumer advocacy groups concurred that requiring the retention of outbound call detail 

records would benefit consumers. The National Consumer Law Center, Consumer Federation of 

America, Americans for Financial Reform, Consumers Union, Consumer Action, Consumer 

Federation of California, The Maryland Consumer Rights Coalition, National Association of 

Consumer Advocates, U.S. PIRG, Virginia Citizens Consumer Council, and Consumer 

Assistance Council, Inc. of Cape Cod and the Islands (collectively, “NCLC, et al.”) submitted a 

joint comment supporting a recordkeeping requirement for all outbound telemarketing calls, and 

further advocating that sellers and telemarketers should also be required to record the entirety of 

all completed calls so that it is possible to examine the “overall net impression” of the 

representations made to determine if they are unfair or deceptive.58 AARP argued that in 

addition to call detail records, sellers and telemarketers should also maintain complete recordings 

of calls to “ease the burden on federal and state enforcers as well as make it easier for citizens to 

bring private cases.”59 Another commenter also noted that “TCPA plaintiffs would benefit from 

companies keeping internal records.”60

Industry comments generally opposed any mandatory requirement to maintain call detail 

records, arguing that imposing such a requirement would be overly burdensome, particularly for 

small businesses.61 None of the industry comments, however, provided concrete information or 

57 Id. at 12.

58 NCLC et. al., No. 00110, at 10.

59 AARP, No.00097, at 5.

60 West Italian, No. 00113, at 3.

61 See, e.g., Professional Association for Customer Engagement (“PACE”), No. 00107, at 5; American Bankers 

Insurance Association (“ABIA”), No. 00106, at 1, 3; National Automobile Dealers Association (“NADA”), No. 

00112, at 2.
19

data on the costs associated with requiring telemarketers to maintain call detail records, nor did 

they suggest any alternative solutions that address the Commission’s law enforcement challenges 

while minimizing the burden on industry. 

Additionally, a few industry comments confirmed that some businesses are already 

requiring telemarketers to retain call detail records in the regular course of business.62 Notably, 

the Association of Magazine Media (“MPA”) supported requiring “telemarketers to retain their 

own call records” as a “reasonable and workable approach.”63 MPA also stated “[s]ome 

magazine publishers are currently requiring third party telemarketing providers to maintain 

outbound call records for three years,” and argued that recordkeeping requirements would 

provide “an added layer of transparency that further blocks opportunities for fraudulent 

behavior.”64

E. The Business-to-Business Exemption

The Original TSR included an exemption for B2B calls other than B2B calls that sold 

office and cleaning supplies.65 The Commission decided not to exempt from the TSR B2B calls 

that sold office and cleaning supplies because, in the Commission’s experience, those calls were 

“by far the most significant business-to-business problem” at the time.66 The Commission also

commented that it would “reconsider that position if additional business-to-business 

telemarketing activities become problems after the Final Rule has been in effect.”67

62 See American Resort Development Association (“ARDA”), No.00100, at 7; Association of Magazine Media 

(“MPA”), No. 00116, at 4.

63 MPA, No. 00116, at 4.

64 Id.

65 Original TSR, 60 FR at 43867. 

66 Original TSR at 43861. 

67 Id. 
20

In 2003, the Commission reconsidered the scope of the B2B exemption and issued a 

Notice of Proposed Rulemaking that would require B2B sales of internet or web services to also

comply with the TSR.68 The Commission explained that the sale of these services had

“increased dramatically” and these product areas “ha[d] emerged as one of the leading sources of 

complaints.”69 The Commission ultimately decided not to modify the B2B exemption because 

the Commission wanted to “move cautiously so as not to chill innovation in the development of 

cost-efficient methods for small businesses to join in the internet marketing revolution.”70 The 

Commission again noted that it would “continue to monitor closely” the B2B telemarketing 

practices in this area and “may revisit the issue in subsequent Rule Reviews should 

circumstances warrant.”71

Since 2003, the Commission has continued to see businesses harmed by deceptive B2B

telemarketing. Deceptive B2B telemarketing comes in many forms,

72 including schemes that

68 2002 Notice of Proposed Rulemaking, 67 FR at 4500. “Internet Services” meant any service that allowed a 

business to access the internet, including internet service providers, providers of software and telephone or cable 

connections, as well as services that provide access to email, file transfers, websites, and newsgroups. Id. “Web 

services” was defined as “designing, building, creating, publishing, maintaining, providing, or hosting a website on 

the internet.” Id. The Commission intended for the term internet services to encompass any and all services related 

to accessing the internet and the term web services to encompass any and all services related to operating a website. 

Id.

69 Id. at 4531. 

70 2003 TSR Amendments 68 FR at 4663. 

71 Id.

72 A 2018 survey conducted by the Better Business Bureau revealed that the same scams that harm consumers, such 

as tech support scams and imposter scams, also harm small businesses, and that 57% of scams that impact small 

businesses are perpetrated through telemarketing. Better Business Bureau, Scams and Your Small Business 

Research Report, at 9-10 (June 2018), available at https://www.bbb.org/SmallBizScams (last visited Jan. 31, 2022).
21

sell business directory listings,

73 web hosting or design services,74 search engine optimization 

services,

75 and market-specific advertising opportunities,76 as well as schemes that impersonate 

the government.

77 For example, some of these schemes were the subject of a coordinated FTCled crackdown on scams targeting small businesses, called “Operation Main Street,” announced 

in June of 2018.78 The Commission believes it is now time to reassess the B2B exemption and 

73 See, e.g., FTC v. Your Yellow Book Inc., No. 14-cv-786-D (W.D. Ok. July 24, 2014), available at

https://www.ftc.gov/system/files/documents/cases/140807youryellowbookcmpt.pdf (last visited Jan. 31, 2022); FTC 

v. OnlineYellowPagesToday.com, Inc., No. 14-cv-0838 RAJ (W.D. Wa. June 9, 2014), available at

https://www.ftc.gov/system/files/documents/cases/140717onlineyellowpagescmpt.pdf (last visited last visited Jan. 

31, 2022); FTC v. Modern Tech. Inc., et. al., No. 13-cv-8257 (Nov. 18, 2013) available at 

https://www.ftc.gov/sites/default/files/documents/cases/131119yellowpagescmpt.pdf (last visited Jan. 31, 2022); 

FTC v. 6555381 Canada Inc. d/b/a Reed Publishing, No. 09-cv-3158 (N.D. Ill. May 27, 2009) available at 

https://www.ftc.gov/sites/default/files/documents/cases/2009/06/090602reedcmpt.pdf (last visited Jan. 31, 2022); 

FTC v. 6654916 Canada Inc. d/b/a Nat’l. Yellow Pages Online, Inc., No. 09-cv-3159 (N.D. Ill. May 27, 2009), 

available at https://www.ftc.gov/sites/default/files/documents/cases/2009/06/090602nypocmpt.pdf (last visited Jan. 

31, 2022); FTC v. Integration Media, Inc., No. 09-cv-3160 (N.D. Ill. May 27, 2009), available at

https://www.ftc.gov/sites/default/files/documents/cases/2009/06/090602goamcmpt.pdf (last visited Jan. 31, 2022); 

FTC v. Datacom Mktg. Inc., et. al., No. 06-cv-2574 (N.D. Ill. May 9, 2006), available at

https://www.ftc.gov/sites/default/files/documents/cases/2006/05/060509datacomcomplaint.pdf (last visited Jan. 31, 

2022); FTC v. Datatech Commc’ns, Inc., No. 03-cv-6249 (N.D. Il. Aug. 3, 2005) (filing amended complaint), 

available at https://www.ftc.gov/sites/default/files/documents/cases/2005/08/050825compdatatech.pdf (last visited 

Jan. 31, 2022); FTC v. Ambus Registry, Inc., No. 03-cv-1294 RBL (W.D. Wa. June 16, 2003), available at

https://www.ftc.gov/sites/default/files/documents/cases/2003/07/ambuscomp.pdf (last visited Jan. 31, 2022).

74 See FTC v. Epixtar Corp., et. al., No. 03-cv-8511(DAB) (S.D.N.Y. Nov. 3, 2003), available at 

https://www.ftc.gov/sites/default/files/documents/cases/2003/11/031103comp0323124.pdf (last visited Jan. 31, 

2022); FTC v. Mercury Marketing of Delaware, Inc., , No. 00-cv-3281 (E.D. Pa. Aug. 12, 2003) (filing for an Order 

to Show Cause Why Defendants Should Not be Held in Contempt), available at

https://www.ftc.gov/sites/default/files/documents/cases/2003/08/030812contempmercurymarketing.pdf (last visited 

Jan. 31, 2022).

75 See, e.g., FTC v. Pointbreak Media, LLC, No. 18-cv-61017-CMA (S.D. Fla. May 7, 2018), available at

https://www.ftc.gov/system/files/documents/cases/matter_1723182_pointbreak_complaint.pdf (last visited Jan. 31, 

2022); FTC v. 7051620 Canada, Inc. No. 14-cv-22132 (S.D. Fla. June 9, 2014), available at

https://www.ftc.gov/system/files/documents/cases/140717nationalbusadcmpt.pdf (last visited Jan. 31, 2022).

76 See, e.g., FTC v. Production Media Co., No. 20-cv-00143-BR (D. Or. Jan. 23, 2020), available at

https://www.ftc.gov/system/files/documents/cases/production_media_complaint.pdf (last visited Jan. 31, 2022).

77 See, e.g., FTC v. DOTAuthority.com, No. 16-cv-62186 (S.D. Fla. Sept. 13, 2016) available at 

https://www.ftc.gov/system/files/documents/cases/162017dotauthoriity-cmpt.pdf (last visited Jan. 31, 2022); FTC v. 

D & S Mktg. Solutions LLC, No. 16-cv-01435-MSS-AAS (M.D. Fla. June 6, 2016), available at

https://www.ftc.gov/system/files/documents/cases/160621dsmarketingcmpt.pdf (last visited Jan. 31, 2022).

78 See Press Release, FTC, BBB, and Law Enforcement Partners Announce Results of Operation Main Street: 

Stopping Small Business Scams Law Enforcement and Education Initiative (June 18, 2018), available at

https://www.ftc.gov/news-events/press-releases/2018/06/ftc-bbb-law-enforcement-partners-announce-resultsoperation-main (last visited Jan. 31, 2022).
22

address problems associated with B2B telemarketing. 

The Commission is issuing an ANPR that seeks comments on the B2B exemption 

generally, including comments addressing whether the Commission should remove the 

exemption entirely.79 The Commission recognizes that requiring all B2B calls to comply with 

all TSR requirements would be a significant change that will require careful consideration.80 

While that process is underway, the Commission proposes in this NPRM to require all B2B 

telemarketing calls to comply with the TSR’s existing prohibitions on misrepresentations 

articulated in Sections 310.3(a)(2) and 310.3(a)(4). 

When the Commission issues a rule prohibiting deceptive practices pursuant to the 

Telemarketing Act, the Commission assesses whether the rule prohibits conduct that involves a 

material representation that is likely to mislead consumers acting reasonably under the 

circumstances.81 When the Commission included the prohibition on specific material 

misrepresentations82 in Section 310.3(a)(2) of the original TSR, the Commission identified these 

particular misrepresentations “based on established case law and the Commission’s policy 

statement on deception.”83 The prohibition in Section 310.3(a)(4) on making false or misleading 

79 The ANPR is published elsewhere in this issue of the Federal Register. 

80 Among other things, it would require telemarketers to ensure their recordkeeping systems comply with the TSR’s 

requirements, pay fees to access the National Do Not Call Registry, and provide mandatory disclosures in 

telemarketing calls. See, e.g., 16 CFR 310.3(a)(1) (required disclosures); 310.5 (recordkeeping requirements); 

310.8 (fee for access to the Do Not Call Registry). 

81 See 15 U.S.C. 6102(a); 2003 TSR Amendments, 68 FR at 4612. The Commission assesses abusive telemarketing 

practices using its traditional unfairness analysis. See, e.g., 2013 Notice of Proposed Rulemaking, 78 FR 41201 

(July 9, 2013). 

82 310.3(a)(2) prohibits, among other things, misrepresenting: the total cost to purchase a good or service, material 

restrictions on the use of the good or service, material aspects of the central characteristics of the good or service, 

material aspects of the seller’s refund policy, or the seller’s affiliation with or endorsement by any person or 

government agency. See 16 CFR 310.3(a)(2)(i)-vii). 

83 Original TSR at 43848. The Commission added Section 310.3(a)(2)(x) in 2010. 2010 TSR Amendments, 75 FR 

at 48498. This section contains prohibitions “related to the sale of debt relief services,” which the Commission also 

determined are likely to be material and misleading. 
23

statements to induce any person to pay for goods or services or induce a charitable contribution

was included to prohibit sellers “from gaining access to consumers’ money through false and 

misleading statements.”84 The prohibitions in Sections 310.3(a)(2) and 310.3(a)(4) have been 

critical tools in the Commission’s efforts to combat deceptive telemarketing. 

The Commission is of the view that requiring B2B calls to comply with these provisions 

should not impose any burden on the telemarketing industry because Section 5 of the FTC Act 

generally prohibits telemarketers from making misrepresentations when they sell products or 

solicit charitable contributions.

85 As noted above, the Commission is not, at this time, proposing 

that B2B sellers and telemarketers comply with other provisions of the TSR, such as the TSR’s 

recordkeeping requirements, or the requirements that sellers and telemarketers access the Do Not 

Call Registry and pay fees.

86 

III. Proposed Revisions

The Commission proposes amending the Section 310.5 recordkeeping provisions to 

require sellers and telemarketers to maintain additional records of their telemarketing activities. 

The proposed amendments identify specific records that, in the Commission’s law enforcement 

experience, are difficult for the Commission to obtain if the telemarketer or seller does not 

maintain these records, but are necessary for the Commission to ensure compliance with the 

TSR. 

The proposed amendments also clarify certain of the existing recordkeeping requirements 

by providing additional guidance to sellers and telemarketers regarding what the Commission 

84 Id. at 43851. The Commission created a broad prohibition to “provide[] law enforcement with flexibility to 

address new ways that sellers and telemarketers engaged in fraud might attempt to take consumers’ money.” Id.

85 15 U.S.C. 45(a)(1). 

86 See 16 CFR 310.5 (recordkeeping requirements); 310.8 (fee for access to the Do Not Call Registry). 
24

considers a complete record and the penalties for failing to keep such records. In developing the 

proposed amendments, the Commission carefully considered the types of records sellers and 

telemarketers likely keep in the ordinary course of business, any additional burden the proposed 

amendments would impose, and the types of records that the Commission considers necessary to 

enforce the TSR.

The Commission also proposes amending the exemption for B2B telemarketing calls in 

Section 310.6(b)(7) to require all such calls to comply with Sections 310.3(a)(2) and (a)(4). The 

proposed amendments would provide businesses the same protections that the TSR provides 

consumers against misrepresentations. Finally, the Commission proposes adding a definition of 

“previous donor” to effectuate its original intent in the 2008 TSR Amendments. 

The Commission invites written comments on the proposed amendments, and in 

particular, seeks answers to the questions set forth in Section IV below. The written comments 

will assist the Commission in determining whether to implement the proposed amendments and 

whether the amendments as proposed strike an appropriate balance between the goal of

protecting consumers from deceptive and abusive telemarketing and harm from imposing

compliance burdens. 

A. New Recordkeeping Requirements 

The proposed amendments require sellers and telemarketers to retain new categories of 

information that the Commission considers necessary for it to pursue law enforcement actions 

against those who have violated the TSR. Specifically, the proposed amendments require the 

retention of the following new categories: (1) a copy of each unique prerecorded message; (2)

call detail records of telemarketing campaigns; (3) records sufficient to show a seller has an 

established business relationship with a consumer; (4) records sufficient to show a consumer is a 
25

previous donor to a particular charitable organization; (5) records of the service providers that a 

telemarketer uses to deliver outbound calls; (6) records of a seller or charitable organization’s 

entity-specific do-not-call registries; and (7) records of the Commission’s DNC Registry that 

were used to ensure compliance with this Rule.87 

1. Section 310.5(a)(1) – Substantially Different Advertising Materials

and Each Unique Prerecorded Message

Section 310.5(a)(1) currently requires sellers and telemarketers to keep records of “all 

substantially different advertising, brochures, telemarketing scripts, and promotional materials.” 

The proposed amendments to Section 310.5(a)(1) would require telemarketers and sellers to also

keep a copy of each unique prerecorded message that they use in telemarketing, including each

call that a telemarketer makes using soundboard technology.

88 In the FTC’s law enforcement 

experience, records of each unique prerecorded message are necessary for the Commission to 

ensure compliance with the TSR. The Commission does not believe that keeping copies of each 

unique robocall will be unduly burdensome because the recordings are typically of short 

duration. For calls utilizing soundboard technology, the Commission is mindful that such calls 

may be of longer duration than a typical robocall. As such, the Commission seeks comment on 

the burden that may be imposed by requiring sellers or telemarketers to keep each unique 

prerecorded message involving the use of soundboard technology, including how many 

telemarketers employ soundboard technology in telemarketing, how many calls they make using 

87 As discussed in Sections III.A.3 and III.A.4, the proposed amendments requiring records of EBR or previous 

donor status will only apply if a seller or telemarketer intends to assert that a consumer has an EBR with the seller or 

is a previous donor to a particular charitable organization.

88 Soundboard technology is technology that allows a live agent to communicate with a call recipient by playing 

recorded audio snippets instead of using his or her own live voice. See FTC Staff Opinion Letter on Soundboard 

Technology, at 1 (Nov. 10, 2016), available at

https://www.ftc.gov/system/files/documents/advisory_opinions/letter-lois-greisman-associate-director-divisionmarketing-practices-michael-bills/161110staffopsoundboarding.pdf (last visited Jan. 31, 2022).
26

soundboard technology, the average duration of each call, and whether the telemarketer typically 

keeps recordings of such calls in the ordinary course of business.89

The proposed amendments also clarify that a copy of each substantially different 

advertising, brochure, telemarketing script, promotional material, and each unique robocall

constitutes one record, and failure to keep one substantially different version of such records is 

one violation of the TSR.

90 This provision applies to each telemarketing script, including 

robocall and upsell scripts. Telemarketers or sellers would be required to keep such records for 5 

years from the date that the record is no longer used in telemarketing. The Commission is 

proposing to modify this time period so that it dates from the time the record is no longer in use 

to account for the possibility that the advertisement may be in use for more than 5 years, which 

would exceed the proposed recordkeeping time period.

2. Section 310.5(a)(2) – Call Detail Records

As discussed above, the Commission frequently has difficulty obtaining the call detail 

and other records of a seller or telemarketer’s telemarketing activities.

91 Ensuring the 

availability of such records is necessary to enable the Commission to adequately determine 

whether the telemarketer or seller is complying with the TSR.92 

To address these problems, the Commission proposes to amend the Rule to add Section 

310.5(a)(2), which would require the retention of call detail records. Such call detail records 

include, for each call that a telemarketer places or receives, the calling number; called number; 

time, date, and duration of the call; and the disposition of the call, such as whether the call was 

89 See infra Section IV.B.4.

90 See infra Section III.B.6 (clarifying that a failure to keep one record constitutes one violation of the TSR).

91 See supra Section II.C

92 See supra Section II.C-D.
27

answered, dropped, transferred, or connected. If the call was transferred, the record should also 

include the phone number or IP address that the call was transferred to as well as the company 

name, if the call was transferred to a company different from the seller or telemarketer that 

placed the call.

The proposed addition of Section 310.5(a)(2) would require the retention of other records 

that help identify the nature and purpose of each call including: (1) the identity of the 

telemarketer who placed or received each call; (2) the seller or charitable organization for which 

the telemarketing call is placed or received; (3) the good, service, or charitable purpose that is the 

subject of the call; (4) whether the call is to a consumer or business, utilizes robocalls, or is an 

outbound call; and (5) the telemarketing script(s) and robocall (if applicable) that was used in the 

call. Finally, proposed Section 310.5(a)(2) would require the retention of records regarding the 

caller ID transmitted if the call was an outbound call, including the name and phone number that 

was transmitted, and records of the telemarketer’s authorization to use the phone number and 

name that was transmitted. 

As stated above, the proposed addition of Section 310.5(a)(2) is necessary for the 

Commission to determine whether the TSR applies to the calls in the telemarketing campaign

and which particular sections of the TSR the seller and telemarketer must comply with for that 

particular telemarketing campaign.93 

Although some consumer advocates recommended that telemarketers and sellers should 

also be required to retain recordings of all their telemarketing calls,94 the Commission believes

93 See supra Section II.C.

94 See NCLC, No. 00110, at 10 (recommending that sellers keep recordings of all outbound calls); AARP, 

No.00097, at 5 (same). In response to the FTC’s Advance Notice of Proposed Rulemaking Concerning the Use of 

Prenotification Negative Option Plans, 84. FR 52393 (Oct. 2, 2019), a number of state attorneys general (“State 

AGs”) submitted a comment requesting amendments to the TSR to address negative option offers. Specifically, the 
28

that at this time, it would be overly burdensome to require retention of call recordings of each 

telemarketing call, particularly for small businesses. Requiring telemarketers and sellers to 

retain records of the substantially different telemarketing script(s) and unique robocall used in 

each call should provide the Commission with sufficient information regarding the content of the 

call, thus striking an appropriate balance between the Commission’s interest in ensuring 

compliance with the TSR and avoiding the imposition of unnecessary burdens on businesses. 

The Commission also believes that implementing this new provision should not be overly 

burdensome for telemarketers or sellers since the cost of electronic storage is decreasing over 

time.

95 Additionally, given the prevalent use of technology such as autodialers in telemarketing 

campaigns, the Commission believes that telemarketers likely already prepare similar call detail 

records in the regular course of business and can do so in an automated fashion. For the 

categories of information that may not be generated in an automated fashion, such as records of 

which script was used in the telemarketing calls, the seller’s identity, or other information 

regarding the content of the call, the Commission believes telemarketers should be able to create 

a record of this information without much difficulty. For example, if the script contains 

information about the identity of the seller and the product or service that is being sold or the 

charitable purpose for which contributions are being solicited, the telemarketer or seller need 

only keep records of which telemarketing script is used for a particular telemarketing campaign.

State AGs suggested that for all negative option offers, sellers and telemarketers should “record the entire 

transaction and retain it for a specified period of time and provide a full refund if the consumer [complains] of 

unauthorized charges, unless the company is able to provide the consumer with the recording of the phone call 

establishing the consumer’s affirmative consent to be charged.” See State AGs’ Comment (#0082-0012), available 

at https://www.regulations.gov/comment/FTC-2019-0082-0012 (last visited Jan. 31, 2022). For the reasons stated 

above and the reasons stated in Section IV.C of the Advance Notice of Proposed Rulemaking that the Commission is 

issuing simultaneously with this NPRM, the Commission does not believe imposing this requirement is necessary. 

95 For example, electronic storage can cost $.74 per gigabyte for onsite storage including hardware, software, and 

personnel costs. See Gartner, Inc. “IT Key Metrics Data 2020: Infrastructure Measures – Storage Analysis.” 

Gartner December 18, 2019.
29

3. Section 310.5(a)(5) – Established Business Relationship

As discussed above, the Commission proposes adding Section 310.5(a)(5) to further 

clarify what records a seller must keep in order to “demonstrate that the seller has an established 

business relationship” with a consumer. Specifically, for each consumer with whom a seller 

asserts it has an established business relationship, the seller must keep a record of the name and 

last known phone number of that consumer, the date the consumer submitted an inquiry or 

application regarding that seller’s goods or services, and the goods or services inquired about.96 

The Commission does not believe that adding this provision to the recordkeeping requirements 

will impose any significant burdens on sellers or telemarketers because sellers or telemarketers 

must already collect and use this information to ensure that they are complying with the 

requirements of this affirmative defense. They are only being asked to retain the records 

demonstrating their compliance. 

4. Section 310.5(a)(6) – Previous Donor

Similar to the EBR requirements described above, the Commission also proposes adding 

Section 310.5(a)(6) to clarify that if a telemarketer intends to assert that a consumer is a previous 

donor to a particular non-profit charitable organization,97 the telemarketer must keep a record, 

for each such consumer, of the name and last known phone number of that consumer, and the 

last date that the consumer donated to the particular non-profit charitable organization. The 

Commission does not believe that this provision will impose any new burdens on telemarketers 

since this is information that a non-profit charitable organization already keeps and telemarketers 

96 A seller may also show it has an established business relationship with a consumer if that consumer purchased, 

rented, or leased the seller’s goods or services or had a financial transaction with the seller during the 18 months 

before the date of the telemarketing call. The Commission is modifying the existing recordkeeping provisions to 

state that records of existing customers should also include the date of the financial transaction to establish EBR 

under these circumstances. See infra Section III.B.3. 

97 The Commission also proposes adding a new definition of “previous donor.” See supra Section II.A. 
30

that comply with the TSR will likely seek this information in the ordinary course of business.

5. Section 310.5(a)(9) – Other Service Providers

The Commission proposes including a new record keeping requirement in Section 

310.5(a)(9) requiring sellers and telemarketers to keep records of all service providers that the 

telemarketer uses to deliver outbound calls in each telemarketing campaign. Such service 

providers include, but are not limited to, voice providers, autodialers, sub-contracting 

telemarketers, or soundboard technology platforms. The Commission does not intend for this 

provision to include every voice provider involved in delivering the outbound call, but limits this 

provision to the service providers with which the seller or telemarketer has a business 

relationship. For each such entity, the seller or telemarketer must keep records of any applicable 

contracts, the date the contract was signed, and the time period the contract is in effect. 

The Commission also proposes that the seller or telemarketer maintain such records for 

five years from the date the contract expires or five years from the date that the telemarketing 

activity covered by the contract ceases, whichever is shorter. The Commission proposes that the 

telemarketer or seller maintain such records for that specified time period to provide the 

Commission and other law enforcement agencies sufficient time to complete any investigation of 

noncompliance. Such information is necessary for the Commission to determine whether any 

other entities assisted and facilitated in violating the TSR. The Commission calculates the fiveyear period from the date the contract expires or the date the telemarketing activity ceases rather 

than the date the contract was signed to account for the possibility that the contract could be of 

long-standing duration. The Commission does not believe that this requirement is overly 

burdensome because telemarketers and sellers likely keep such records in the ordinary course of 

business.
31

6. Sections 310.5(a)(10) & (11) – DNC and Entity-Specific DNC

The NPRM also includes two new provisions requiring telemarketers and sellers to 

maintain for five years records related to the entity-specific do-not-call registry and the FTC’s 

DNC Registry. For the entity-specific do-not-call registry, the Commission proposes requiring 

telemarketers and sellers to retain records of: (1) the consumer’s name, (2) the phone number(s)

associated with the DNC request, (3) the seller or charitable organization from which the 

consumer does not wish to receive calls, (4) the telemarketer that made the call; (5) the date the 

DNC request was made; and (6) the good or service being offered for sale or the charitable 

purpose for which contributions are being solicited. 

For the FTC’s DNC Registry, the Commission proposes requiring telemarketers or sellers 

to keep records of every version of the FTC’s DNC Registry the telemarketer or seller 

downloaded to ensure compliance with the TSR. The Commission does not believe these two

proposed recordkeeping requirements impose a substantial burden on the telemarketer or seller 

since telemarketers complying with the TSR already keep such records in the ordinary course of 

business to avail themselves of the TSR’s safe harbor provisions.

98 

The Commission, however, invites public comment on whether and for how long 

telemarketers and sellers maintain records in the ordinary course of business of every version of 

the FTC’s DNC Registry they access to comply with the TSR’s safe harbor rules, and if not, 

whether requiring them to do so would be overly burdensome. The Commission also invites 

comment from other law enforcement agencies and any other interested parties regarding

whether a record of the name of the telemarketer or seller who accessed the registry, the 

subscription account number that was used to access the registry, the telemarketing campaign for 

98 16 CFR 310.4(b)(3)(iii) & (b)(3)(iv).
32

which it was accessed, and the date of access would suffice to ensure telemarketers and sellers 

are complying with the TSR.99

B. Modification of Existing Recordkeeping Requirements

1. Time Period to Keep Records

In this NPRM, the Commission proposes changing the time period that telemarketers and 

sellers must keep records from two years to five years from the date the record is made, except 

for Sections 310.5(a)(1) and (a)(9), which require retention of records for five years from the 

date that such records are no longer in use.

100 The Commission is proposing to change the time 

period from two years to five years because the Commission needs adequate time to complete its 

investigations of non-compliance with the TSR. Given the additional complexities of identifying 

the telemarketer and seller responsible for particular telemarketing campaigns and gathering the 

necessary evidence, two years is no longer a sufficient amount of time for the Commission to 

fully complete its investigations of noncompliance. Given the decreasing cost of data storage, 

the Commission does not believe that changing the length of time sellers and telemarketers are 

required to keep records will be unduly burdensome. 

2. Section 310.5(a)(3) – Prize Recipients 

The TSR currently requires telemarketers and sellers to retain the “name and last known 

address” of each prize recipient.

101 The Commission is proposing to modify this provision also 

to require sellers and telemarketers to retain the last known telephone number and the last known 

99 See infra Section IV.B.9.

100 The records covered by these two sections include advertising materials and the service providers who assisted in 

outbound telemarketing, respectively. See supra Sections III.A.1 and III.A.5.

101 16 CFR 310.5(a)(2).
33

physical or email address for each prize recipient.102 The Commission is proposing this change

to reflect current business practices in communicating with customers. The Commission does 

not believe that retention of such records is unduly burdensome since telemarketers and sellers 

likely keep such information in the regular course of business.

3. Section 310.5(a)(4) – Customer Records

The TSR currently requires sellers or telemarketers to retain 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.”103 To 

account for the new requirement that telemarketers and sellers keep records of each consumer 

with whom a seller intends to assert it has an EBR, the Commission proposes modifying Section 

310.5(a)(4) to require the seller or telemarketer to keep records of the date that the customer 

purchased the good or service.104 The Commission also proposes modifying Section 310.5(a)(4) 

to require the retention of the customer’s last known telephone number and the customer’s last 

known physical address or email address to account for current business practices in 

communicating with existing customers. Because the Commission believes that sellers likely 

already keep records of this information in the ordinary course of business, the Commission does 

not believe that these modifications will cause significant additional burden. 

The Commission recognizes that requiring telemarketers and sellers to retain information 

regarding consumers’ names, phone numbers, and either their email or physical addresses, in 

102 The Commission proposes to modify the form of this section so that it aligns with the new additions to Section 

310.5(a) but makes no substantive changes except adding the prize recipient’s last known phone number and last 

known physical or email address as described above.

103 16 CFR 310.5(a)(3).

104 The Commission proposes to modify the form of this section so that it aligns with the new additions to Section 

310.5(a) but makes no substantive changes except adding the date the customer purchased the good or service, the 

customer’s last known phone number, and the customer’s last known physical or email address as described above.
34

combination with the goods or services they have purchased, raises privacy concerns. The 

Commission emphasizes that telemarketers and sellers have an obligation under Section 5 of the 

FTC Act to adhere to commitments they make about their information practices, and take 

reasonable measures to secure consumers’ data.105 

4. Section 310.5(a)(8) – Records of Consent

Section 310.5(a)(5) of the TSR currently requires sellers or telemarketers to keep records 

of “[a]ll verifiable authorizations or records of express informed consent or express agreement 

required to be provided or received under this Rule.” The Commission proposes modifying this 

requirement to keep records of verifiable authorizations, express informed consent or express 

agreement (collectively, “consent”) to clarify what information the Commission believes is a 

complete record sufficient for a telemarketer or seller to assert such an affirmative defense.106 

Specifically, for each consumer from whom a seller or telemarketer states it has obtained 

consent, the Commission proposes requiring sellers or telemarketers to maintain records of that 

consumer’s name and phone number, a copy of the consent requested in the same manner and 

format that it was presented to that consumer, a copy of the consent provided, the date the 

consumer provided consent, and the purpose for which consent was given and received. 

For a copy of the consent provided under Sections 310.3(a)(3), 310.4(a)(7), 

310.4(b)(1)(iii)(B)(1), or 310.4(b)(1)(v)(A), a complete record must include all of the

requirements outlined in those respective sections. For example, a copy of the consent provided 

105 See generally Federal Trade Commission 2020 Privacy and Data Security Update, available at 

https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-2020-privacy-data-securityupdate/20210524_privacy_and_data_security_annual_update.pdf (last visited Jan. 31, 2022).

106 See supra Section II.C at 14 (a list of consumer IP addresses is not a complete record of consent when the 

Commission cannot tell the name of the consumer allegedly providing consent and cannot know the nature of the 

purported consent).
35

to receive prerecorded sales messages under Section 310.4(b)(1)(v)(A) must evidence, in 

writing: (1) the consumer’s name, telephone number, and signature; (2) the consumer states she 

is willing to receive prerecorded messages from or on behalf of a specific seller; (3) the seller 

obtained consent only after clearly and conspicuously disclosing that the purpose of the written

agreement is to authorize that seller to place prerecorded messages to that consumer; and (4) the 

seller did not condition the sale of the relevant good or service on the consumer providing 

consent to receive prerecorded messages.

If the telemarketer or seller requested consent verbally, the copy of consent requested 

need not be a recording of the conversation unless such a recording is required by another 

provision of this Rule. For such consent requests, unless such a recording is required by another 

provision of this Rule, a copy of the telemarketing script of the request for consent will suffice as 

a complete record. The Commission does not believe that requiring the telemarketer or seller to 

keep records of consent imposes significant additional burden since it is likely that telemarketers 

and sellers who comply with the TSR already keep such records in the ordinary course of 

business. 

5. Section 310.5(b) – Format of Records

The NPRM includes a modification to the formatting requirements for records that 

include phone numbers, time, or duration. For such records, the Commission proposes to require

that international phone numbers must comport with the International Telecommunications 

Union’s Recommendation E.164 format and domestic numbers must comport with the North 

American Numbering plan. For time and duration, the Commission proposes that such records 

be kept to the closest whole second, and time must be recorded in Coordinated Universal Time 

(UTC). The Commission does not believe that specifying these format requirements will cause 
36

any undue burden since the numbering formats are standard practice across the 

telecommunications industry, and the proposed time and duration formats are widely used, so 

sellers and telemarketers can easily select them when they set up an automated method of 

maintaining call detail records.

6. Section 310.5(c) – Violation of Recordkeeping Provisions

The Commission proposes clarifying that the failure to keep each record required by 

Section 310.5 in a complete and accurate manner constitutes a violation of this Rule. The 

Commission wants to state clearly that a violation does not mean a failure to keep all records, but 

instead that failure to keep each required record constitutes a separate violation. To do otherwise 

would create a perverse incentive for deceptive telemarketers to choose not to comply with the 

recordkeeping provisions when the only consequence would be liability for a single violation of 

the TSR. Such an outcome would negate the entire purpose of implementing recordkeeping 

requirements. 

7. Section 310.5(d) – Safe Harbor for Incomplete or Inaccurate Records 

Kept Pursuant to Section 310.5(a)(2)

The Commission proposes including a safe harbor provision for temporary and 

inadvertent errors in keeping call detail records pursuant to Section 310.5(a)(2). Specifically, a 

seller or telemarketer will not be liable for failing to keep records under Section 310.5(a)(2) if it 

can demonstrate that: (1) it has established and implemented procedures to ensure completeness 

and accuracy of its records under Section 310.5(a)(2); (2) it trained its personnel in the 

procedures; (3) it monitors compliance and enforces the procedures, and documents its 

monitoring and enforcement activities; and (4) any failure to keep accurate or complete records 

under Section 310.5(a)(2) was temporary and inadvertent. 
37

The Commission believes providing a safe harbor for the recordkeeping requirements 

under Section 310.5(a)(2) is appropriate since the process of maintaining such records will likely 

be automated by technology, and telemarketers and sellers should not be held liable under this 

section of the TSR for brief and inadvertent technological errors so long as they make good faith 

efforts to comply.

8. Section 310.5(e) - Compliance Obligations

The Commission also proposes modifying the compliance obligations in Section 

310.5(e). In the event the seller and telemarketer fail to allocate responsibility for maintaining 

the required records, the Rule currently designates which recordkeeping obligations fall on the 

telemarketer and which fall on the seller. The Commission is proposing to modify the Rule so 

that if the seller and telemarketer fail to allocate recordkeeping obligations between themselves,

the responsibility for complying with this Section will fall on both parties. This will avoid 

disputes between sellers and telemarketers over which party is responsible for recordkeeping. 

Also, because the parties may still allocate the recordkeeping obligations, the Commission does 

not believe modifying this provision will alter the overall burden of complying with this Rule; 

rather, it should incentivize the parties to delineate clearly their respective responsibilities.

C. Modification of the B2B Exemption

The Commission proposes narrowing the B2B exemption to require B2B telemarketing 

calls to comply with Section 310.3(a)(2)’s prohibition on misrepresentations and Section 

310.3(a)(4)’s prohibition on false or misleading statements. The Commission believes that a 

prohibition on such deceptive conduct will protect businesses from illegal telemarketing without 

burdening industry since the FTC Act already prohibits businesses from making 

misrepresentations and false or misleading statements. 
38

D. New Definitions

The Commission proposes adding a new definition for the term “previous donor” to 

implement the Commission’s original intent to allow robocalls soliciting charitable donations on 

behalf of a particular non-profit charitable organization only to consumers who have an 

established relationship with that organization. The proposed definition also specifies that the 

consumer must have made a donation to the non-profit charitable organization within the twoyear period immediately preceding the date of the robocall. The Commission proposes 

implementing a time limit for the existence of an established relationship and chose two years to 

account for the possibility that consumers who donate annually may not necessarily donate 

exactly one year apart (i.e. one year the consumer might donate in January and the following 

year the consumer might not donate until December). The Commission, however, seeks public 

comment on whether two years is an appropriate time period to use in determining whether the 

consumer has an established relationship with a particular organization.

E. Corrections to the Rule

The Commission also proposes five corrections to the Rule. The first is a clerical 

correction to the cross-reference citations in Sections 310.6(b)(1), (b)(2), and (b)(3) changing the 

cross-references from Sections 310.4(a)(1), (a)(7), (b), and (c) to Sections 310.4(a)(1), (a)(8), (b), 

and (c).

The second is modifying the time requirements in the definition of EBR to change it from 

months to days. For Section 310.2(q)(1), the time requirement to qualify for EBR will be 

modified from 18 months between the date of the telephone call and financial transaction to 540 

days. For Section 310.2(q)(2), the time requirement to qualify for EBR will be modified from 

three months between the date of the telephone call and the date of the consumer’s inquiry or 
39

application to 90 days. The Commission is proposing these modifications to make the technical 

calculations of whether a consumer has an EBR with a particular seller easier to determine since 

the number of days to qualify would be fixed instead of fluctuating depending on which months 

were applicable.

The third correction is to add an email address to Section 310.7 so that state officials or 

private litigants can more easily provide notice to the Commission that the state official or 

private litigant intends to bring an action under the Telemarketing Act.

The fourth correction is amending Section 310.5(a)(7) so that it is consistent in form with 

the new proposed additions to Section 310.5(a). The substantive requirements of this section

will remain the same.

The fifth correction is amending Section 310.5(f) to remove an extraneous word. The 

substantive requirements of this section will remain the same.

IV. Request for Comment

The Commission seeks comments on all aspects of the proposed requirements, including

the likely effectiveness of the proposed requirements to combat violations of the TSR and any 

alternatives to the proposed requirements. The Commission also seeks comments on the

estimated burden that compliance with the proposed regulations will impose on sellers and 

telemarketers. In their replies, commenters should provide any available evidence and data that 

supports their position, such as empirical data on the costs of complying with the proposed 

amendments. 

You can file a comment online or on paper. For the Commission to consider your 

comment, we must receive it on or before [INSERT DATE 60 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. Write “Telemarketing Sales Rule (16 CFR 
40

Section 310 - NPRM) (Project No. R411001)” on your comment. Your comment – including 

your name and your state – will be placed on the public record of this proceeding, including, to 

the extent practicable, on the https://www.regulations.gov website.

Because of the public health emergency in response to the COVID-19 outbreak and the 

agency’s heightened security screening, postal mail addressed to the Commission will be subject 

to delay. We strongly encourage you to submit your comment online through the 

https://www.regulations.gov website. To ensure the Commission considers your online 

comment, please follow the instructions on the web-based form.

If you file your comment on paper, write “Telemarketing Sales Rule (16 CFR Section 

310 - NPRM) (Project No. R411001)” on your comment and on the envelope, and mail your 

comment to the following address: Federal Trade Commission, Office of the Secretary, 600 

Pennsylvania Avenue, NW, Suite CC-5610 (Annex B), Washington, DC 20580, or deliver your 

comment to the following address: Federal Trade Commission, Office of the Secretary, 

Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex B), Washington, DC 

20024. If possible, please submit your paper comment to the Commission by courier or 

overnight service.

Because your comment will be placed on the publicly accessible website, 

https://www.regulations.gov, you are solely responsible for making sure that your comment does 

not include any sensitive or confidential information. In particular, your comment should not 

include any sensitive personal information, such as your or anyone else’s Social Security 

number; date of birth; driver’s license number or other state identification number, or foreign 

country equivalent; passport number; financial account number; or credit or debit card number. 

You are also solely responsible for making sure that your comment does not include any 
41

sensitive health information, such as medical records or other individually identifiable health 

information. In addition, your comment should not include any “trade secret or any commercial 

or financial information which . . . is privileged or confidential” – as provided by Section 6(f) of 

the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2) – including in 

particular competitively sensitive information such as costs, sales statistics, inventories, 

formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed 

in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). 

In particular, the written request for confidential treatment that accompanies the comment must 

include the factual and legal basis for the request, and must identify the specific portions of the 

comment to be withheld from the public record. See FTC Rule 4.9(c). Your comment will be 

kept confidential only if the General Counsel grants your request in accordance with the law and 

the public interest. Once your comment has been posted publicly at www.regulations.gov – as 

legally required by FTC Rule 4.9(b) – we cannot redact or remove your comment from the FTC 

Website, unless you submit a confidentiality request that meets the requirements for such 

treatment under FTC Rule 4.9(c), and the General Counsel grants that request.

Visit the FTC Website to read this Notice and the news release describing it. The FTC 

Act and other laws that the Commission administers permit the collection of public comments to 

consider and use in this proceeding as appropriate. The Commission will consider all timely and 

responsive public comments that it receives on or before [INSERT DATE 60 DAYS AFTER 

DATE OF PUBLICATION IN THE FEDERAL REGISTER]. For information on the 

Commission’s privacy policy, including routine uses permitted by the Privacy Act, see

https://www.ftc.gov/site-information/privacy-policy.
42

In addition to the issues raised above, the Commission solicits public comment on the list 

of questions below regarding the costs and benefits of the proposed amendments. The 

Commission requests that comments provide the factual data upon which they are based. These 

questions are designed to assist the public and should not be construed as a limitation on the 

issues on which a public comment may be submitted. 

A. General Questions for Comments

1. What would be the impact (including any benefits and costs), if any, of the proposed 

amendments on consumers?

2. What would be the impact (including any benefits and costs), if any, of the proposed 

amendments on individual firms (including small businesses) that must comply with 

them? 

3. What would be the impact (including any benefits and costs), if any, on industry, 

including those who may be affected by the proposed amendments but not obligated to 

comply with the Rule?

4. What changes, if any, should be made to the proposed amendments to minimize any costs 

to consumers or to industry and individual firms (including small businesses) that must 

comply with the Rule?

5. How would each change suggested in response to Question 4 affect the benefits that 

might be provided by the proposed amendment to consumers or to industry and 

individual firms (including small businesses) that must comply with the Rule?

6. How would the proposed amendments impact small businesses with respect to costs, 

profitability, competitiveness, and employment? What other burdens, if any, would the 

proposed amendments impose on small businesses, and in what ways could the proposed 
43

amendments be modified to reduce any such costs or burdens?

7. How many small businesses would be affected by each of the proposed amendments?

8. With respect to each of the proposed amendments, are there any potentially duplicative, 

overlapping, or conflicting federal statutes, rules, or policies that are currently in effect?

B. Specific Questions for Comments

1. Is 5 years an appropriate time period to require telemarketers and sellers to maintain 

records? If not, what is an appropriate time period and why?

2. What are the current practices of sellers and telemarketers in keeping records of their 

telemarketing activities? How will the proposed amendments alter the current practices?

3. Is the proposed requirement to retain a record of each unique robocall recording used in 

telemarketing, under Section 310.5(a)(1), overly burdensome? If so, what are the costs or 

burdens associated with keeping a record of each unique robocall recording? 

4. What are the costs or burdens associated with keeping a record of each call in which 

soundboard technology is used? How many telemarketers employ soundboard 

technology in telemarketing? How many calls do telemarketers make on average in one 

year using soundboard technology? What is the average duration of each call using 

soundboard technology? Do telemarketers typically keep recordings of such calls in the 

ordinary course of business? If so, how long do telemarketers typically keep such 

recordings in the ordinary course of business?

5. Do the proposed recordkeeping requirements of 310.5(a)(2) adequately identify all data 

categories a telemarketer or seller should retain from the call detail records of their 

telemarketing activities? If not, what data categories are missing? Alternatively, are 

there data categories that are overly burdensome or unnecessary to ensure the 
44

telemarketer and seller are complying with the TSR? If the data categories are overly 

burdensome, is there an alternative proposal on how a telemarketer or seller can retain the 

information from that data category in a less burdensome manner?

6. Is the proposed requirement to identify the robocall recording used in each call, under 

Section 310.5(a)(2), overly burdensome? If so, what are the costs or burdens associated 

with this requirement? Is there an alternative proposal that would still give the 

Commission information on what robocall was used in the call but is less burdensome for 

the seller or telemarketer?

7. Does the proposed amendment to Section 310.5(a)(8) adequately describe the 

information the telemarketer or seller needs to retain to provide proof of verifiable 

authorizations, express informed consent, or express agreement? If not, what other 

information should the telemarketer or seller be required to retain to show proof of 

verifiable authorizations, express informed consent, or express agreement?

8. Does the proposed amendment to Section 310.5(a)(8) require sufficient records to 

demonstrate whether telemarketers or sellers who obtain preacquired account information

through data pass are authorized to bill consumers? If not, what other information should 

the telemarketer or seller be required to retain? 

9. Does the proposed amendment to Section 310.5(a)(8) sufficiently address any potential 

harms caused by telemarketers or sellers using preacquired account information through 

data pass? Does it also sufficiently address any new harms that have emerged since 2014 

that are caused by telemarketers or sellers using preacquired account information through 

data pass? If not, what harms have emerged since 2014? What other changes should be 

made to the TSR to address harms caused by data pass of preacquired account 
45

information? 

10. Does the proposed amendment in Section 310.5(a)(9) requiring the telemarketer or seller 

to retain records of all service providers that a telemarketer uses to deliver an outbound 

call provide adequate guidance on which service providers are referenced in this 

provision? If not, is there an alternative description that would more accurately provide 

guidance on what service providers a telemarketer or seller would need to retain records 

of as required by this provision? Would such a description be flexible enough to account 

for changes in the telecommunications industry, including technological developments?

11. Should the Commission require the telemarketer or seller to retain records of every 

version of the Commission’s DNC Registry that it downloaded to ensure compliance with 

the TSR or would requiring a record of each instance the telemarketer or seller accessed 

the registry, including the date of access, the subscription account number used to access, 

the telemarketing campaign for which it was accessed, and the entity that accessed the 

registry, be sufficient to ensure compliance with the TSR?

12. Should the Commission include the safe harbor provision in Section 310.5(d) for the 

retention of records identified in Section 310.5(a)(2)? Is such a safe harbor necessary? 

Alternatively, does the proposed safe harbor provide adequate protection to the seller or 

telemarketer against mistakes that cannot readily be prevented? Should the safe harbor 

provision apply only to records identified in Section 310.5(a)(2) or should it also apply to 

other records required by Section 310.5?

13. Should sellers and telemarketers be allowed to decide by contract which entity is 

responsible for retaining records under this Rule? If not, should both sellers and 

telemarketers be required to retain records under this Rule? Alternatively, should the 
46

Commission specify which entity should be required to retain specific categories of 

records?

14. Should the definition of previous donor include a two-year time limit after which a 

consumer is no longer considered a previous donor to a particular charitable 

organization? If not, what is the appropriate amount of time that can lapse before a 

consumer should no longer be considered a previous donor to a particular charitable 

organization?

15. How many calls on average do sellers and telemarketers make per year?

16. What call detail records do sellers and telemarketers currently keep?

17. How much do sellers and telemarketers pay to retain call detail records on a monthly 

basis?

18. Are there other costs associated with creating and preserving call detail records? 

19. How many different prerecorded messages do sellers and telemarketers use with their 

campaigns and what is the file size of the messages? 

20. To what extent do existing recordkeeping requirements, such as those found under the 

Telephone Consumer Protection Act, overlap with the proposed rule’s recordkeeping 

requirements? 

21. Are businesses harmed by deception in B2B telemarketing? Would requiring B2B 

telemarketing to comply with the TSR’s prohibitions on misrepresentations and making 

false or misleading statements help businesses? 

22. Are businesses harmed by B2B telemarketing in ways not addressed by the FTC’s past 

law enforcement work? 

23. Would the proposed amendment to the B2B exemption burden sellers or telemarketers? 
47

If so, in what way, and what is the burden?

V. Paperwork Reduction Act

The current Rule contains various provisions that constitute information collection 

requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of 

Management and Budget (“OMB”) regulations implementing the Paperwork Reduction Act 

(PRA). 44 U.S.C. chapter 35. OMB has approved the Rule’s existing information collection 

requirements through September 30, 2022 (OMB Control No. 3084-0097). The proposed 

amendments will make changes in the Rule’s recordkeeping requirements that will increase the 

PRA burden as detailed below. Accordingly, FTC staff will submit this notice of proposed 

rulemaking and the associated Supporting Statement to OMB for review under the PRA.107

The proposed rule contains new recordkeeping requirements and modifications to 

existing recordkeeping requirements. The new recordkeeping provisions would require sellers or 

telemarketers to retain: (1) a copy of each unique prerecorded message; (2) call detail records of 

telemarketing campaigns; (3) records sufficient to show a seller has an established business 

relationship with a consumer; (4) records sufficient to show a consumer is a previous donor to a 

particular charitable organization; (5) records regarding the service providers that a telemarketer 

uses to deliver outbound calls; (6) records of a seller or charitable organization’s entity-specific 

do-not-call registries; and (7) records of the Commission’s DNC Registry that were used to 

ensure compliance with this Rule. The proposed modifications to the existing recordkeeping 

requirements would: (1) change the time period for retaining records from two years to five

years;

108 (2) clarify the records necessary for sellers or telemarketers to demonstrate that the 

107 This PRA analysis focuses specifically on the information collection requirements created by or otherwise 

affected by the proposed amendments.

108 As described above, changing industry practice including increased spoofing of Caller ID information has made 
48

person it is calling has consented to receive the call; and (3) specify the format for records that 

include phone numbers, time, or duration. 

As explained above, the Commission believes that for the most part, sellers and 

telemarketers already generate and retain these records in the ordinary course of business. For 

example, in order to comply with the TSR, sellers and telemarketers must already have a reliable 

method to identify whether they have a previous business relationship with a customer or 

whether the customer is a prior donor. They must also access the DNC Registry and maintain an 

entity-specific DNC registry. Moreover, sellers and telemarketers are also likely to keep records 

about their existing customers or donors and service providers in the ordinary course of business. 

The proposed rule would also require telemarketers and sellers to keep call detail records of their 

telemarketing campaigns, but in the Commission’s experience the technological methods sellers 

and telemarketers use to implement their campaigns can also reliably generate the records of 

those campaigns that would be required under the proposed rule.

A. Estimated Annual Hours Burden

The Commission estimates the PRA burden of the proposed amendments based on its

knowledge of the telemarketing industry and data compiled from the Do Not Call Registry. In 

calendar year 2021, 11,756 telemarketing entities accessed the Do Not Call Registry; however, 

536 were exempt entities obtaining access to data.109 Of the non-exempt entities, 6,835 obtained 

it more difficult to identify the telemarketers and sellers responsible for particular telemarketing campaigns and has 

hindered evidence gathering. As a result, two years is no longer always a sufficient amount of time for the 

Commission to fully complete its investigations of noncompliance and therefore the Commission is proposing to 

increase the required retention period for recordkeeping under the Rule. Given the decreasing cost of data storage, 

the Commission does not believe that changing the length of time sellers and telemarketers are required to keep 

records will be unduly burdensome.

109 See National Do not Call Registry Data Book for Fiscal Year 2020 (“Data Book”), available at 

https://www.ftc.gov/system/files/documents/reports/national-do-not-call-registry-data-book-fiscal-year2020/dnc_data_book_2020.pdf (last visited Jan. 31, 2022). An exempt entity is one that, although not subject to the 

TSR, voluntarily chooses to scrub its calling lists against the data in the Registry. 
49

data for a single state. Staff assumes that these 6,835 entities are operating solely intrastate, and 

thus would not be subject to the TSR. Therefore, Staff estimates that approximately 4,385

telemarketing entities (11,756 – 536 exempt – 6,835 intrastate) are currently subject to the TSR. 

The Commission also estimates that there will be 75 new entrants to the industry per year.

The Commission has previously estimated that complying with the TSR’s current

recordkeeping requirements requires 100 hours for new entrants to develop recordkeeping 

systems that comply with the TSR and 1 hour per year for established entities to file and store 

records after their systems are created, for a total annual recordkeeping burden of 4,385 hours for 

established entities and 7,500 hours for new entrants who must develop required record 

systems.

110

Because the proposed rule contains new recordkeeping requirements, the Commission 

anticipates that in the first year after the proposed amendments take effect, every entity subject to 

the TSR would need to ensure that their recordkeeping systems meet the new requirements. The 

Commission estimates that this undertaking will take 50 hours. This includes 10 hours to verify 

that the entities are maintaining the required records, and 40 hours to create and retain call detail 

records. This yields an additional burden of 219,250 hours for established entities (50 hours ×

4,385 covered entities).

For new entrants, the Commission estimates that the new requirements will increase their 

overall burden for establishing new recordkeeping systems from 100 hours per year to 150 hours 

per year. This yields a total burden for new entrants of 11,250 hours (150 hours × 75 new 

entrants per year).

110 See Information Collection Activities; Proposed Collection; Comment Request 84 FR 22844 (July 19, 2019).
50

B. Estimated Annual Labor Costs

The Commission estimates annual labor costs by applying appropriate hourly wage rates 

to the burden hours described above. The Commission estimates that established entities will 

employ skilled computer support specialists to modify their recordkeeping systems. 

Applying a skilled labor rate of $29.11/hour111 yields $6,382,368 (rounded) in labor costs in the 

first year after the proposed amendments would take effect (4,385 respondents × 50 hours × 

$29.11). 

As described above, the Commission estimates that new entrants will spend 

approximately 150 hours per year to establish new recordkeeping systems. Applying a skilled 

labor rate of $29.11/hour, the Commission estimates that the annual labor costs for new entrants 

would be approximately $327,488 (rounded) (75 entrants × 150 hours × $29.11/hour). 

C. Estimated Non-Annual Labor Costs

Staff previously estimated that the non-labor costs to comply with the TSR’s 

recordkeeping requirements were de minimis because most affected entities would maintain the 

required records in the ordinary course of business. Staff estimated that the recordkeeping 

requirements could require $50 per year in office supplies to comply with the Rule’s 

recordkeeping requirements. Because the proposed recordkeeping requirements require retaining 

additional records, Staff estimates that these requirements will increase to $60 per year in office 

supplies.

The new recordkeeping requirements also require entities to retain call detail records and 

audio recordings of prerecorded messages used in calls. Staff estimates that the costs associated 

111 This figure is derived from the mean hourly wage shown for “Computer Support Specialist.” See “Occupational 

Employment and Wages-May 2021” Bureau of Labor Statistics, U.S. Department of Labor, Last Modified March 

31, 2022, Table 1 (“National employment and wage data from the Occupational Employment Statistics survey by 

occupation, May 2021”) available at https://www.bls.gov/news.release/ocwage.t01.htm (last visited April 5, 2022).
51

with preserving these records will also be de minimis. The Commission regularly obtains call 

detail records from voice providers when investigating potential TSR violations, and these 

records are kept in databases with small file sizes even when the database contains information 

about a substantial number of calls. For example, the Commission received a 2.9 gigabyte 

database that contained information about 56 million calls. The Commission also received a 1.2 

gigabyte database that contained information about 5.5 million calls. Similarly, audio files of 

most prerecorded messages will not be very large because prerecorded messages are typically 

short in duration. Storing electronic data is very inexpensive. Electronic storage can cost $.74 

per gigabyte for onsite storage including hardware, software, and personnel costs.112 

Commercial cloud-based storage options are less expensive and can cost around $.20 per 

gigabyte per year.113 The Commission estimates that the non-labor costs associated with 

electronically storing audio files of prerecorded messages and call detail records will cost around 

$5 a year.

The Commission invites comments on: (1) Whether the proposed collection of 

information is necessary for the proper performance of the functions of the agency, including 

whether the information will have practical utility; (2) the accuracy of the FTC's burden 

estimates, including whether the methodology and assumptions used are valid; (3) ways to 

enhance the quality, utility, and clarity of the information to be collected; and (4) ways to 

minimize the burden of collecting information. An agency may not conduct or sponsor, and a 

person is not required to respond to, a collection of information unless it displays a currently 

112 See Gartner, Inc. “IT Key Metrics Data 2020: Infrastructure Measures – Storage Analysis.” Gartner December 

18, 2019. 

113 Amazon’s storage rate for S3 Standard – Infrequent Access storage is $0.0125 per GB per month. Available at 

https://aws.amazon.com/s3/pricing/?nc=sn&loc=4 (last visited Jan. 31, 2022); Google’s storage rate for Archive 

Storage in parts of North America is $0.0012 per GB per month. Available at 

https://cloud.google.com/storage/pricing (last visited Jan. 31, 2022). 
52

valid OMB control number.

Written comments and recommendations for the proposed information collection should 

be sent within 30 days of publication of this notice to www.reginfo.gov/public/do/PRAMain. 

Find this particular information collection by selecting “Currently under Review - Open for 

Public Comments” or by using the search function. The reginfo.gov web link is a United States 

Government website produced by OMB and the General Services Administration (GSA). Under 

PRA requirements, OMB’s Office of Information and Regulatory Affairs (OIRA) reviews 

Federal information collections. 

VI. Regulatory Flexibility Act

The Regulatory Flexibility Act (“RFA”), as amended by the Small Business 

Regulatory Enforcement Fairness Act of 1996, requires that the Commission conduct an 

analysis of the anticipated economic impact of the proposed amendments on small entities.114 

The RFA requires that the Commission provide an Initial Regulatory Flexibility Analysis 

(“IRFA”) with a proposed rule unless the Commission certifies that the rule will not have a 

significant economic impact on a substantial number of small entities.115

The Commission believes that the proposed amendment would not have a significant 

economic impact upon small entities, although it may affect a substantial number of small 

businesses. In the Commission’s view, the proposed amendment should not significantly 

increase the costs of small entities that are sellers or telemarketers because the proposed 

amendments primarily require these entities to retain records that they are already generating 

and preserving in the ordinary course of business. The Commission does not believe that the 

114 5 U.S.C. 601-612.

115 5 U.S.C. 605.
53

proposed amendments requiring small entities that are sellers or telemarketers to comply 

with the TSR’s prohibitions on misrepresentations should impose any additional costs on 

small entities. Therefore, based on available information, the Commission certifies that 

amending the Rules as proposed will not have a significant economic impact on a substantial 

number of small entities, and hereby provides notice of that certification to the Small 

Business Administration (“SBA”). Nonetheless, the Commission has determined that it is 

appropriate to publish an IRFA in order to inquire into the impact of the proposed 

amendments on small entities. The Commission invites comment on the burden on any 

small entities that would be covered and has prepared the following analysis.

A. Description of the Reasons the Agency Is Taking Action

The Commission proposes amending the TSR to require telemarketers and sellers to 

maintain additional records regarding their telemarketing transactions. As described in 

Section II, the proposed amendments are intended to update the TSR’s existing 

recordkeeping requirements so that the requirements comport with the substantial 

amendments to the TSR since the recordkeeping requirements were first made. The 

requirements are also necessary in light of the technological advancements that have made it 

easier and cheaper for unscrupulous telemarketers to engage in illegal telemarketing. The 

proposed amendments would also require B2B telemarketers to comply with the TSR’s 

prohibition on misrepresentations. These amendments are necessary to help protect 

businesses from deceptive telemarketing practices. The proposed amendments would also 

amend the definition of “previous donor” to clarify that a seller or telemarketer may not use 

prerecorded messages to solicit charitable donations on behalf of a charitable organization 

unless the recipient of the call previously donated to that charitable organization within the 
54

last two years. 

B. Statement of Objectives of, and Legal Basis for, the Proposed Amendments

The objective of the proposed amendments is to update the TSR’s recordkeeping 

requirements in order to assist the Commission’s enforcement of the TSR, and to prohibit 

misrepresentations in B2B telemarketing. The legal basis for the proposed amendments is 

the Telemarketing Act, which authorizes the Commission to issue rules to prohibit deceptive 

or abusive telemarketing practices. 

C. Description and Estimated Number of Small Entities to Which the Rule Will 

Apply

The proposed amendments to the Rule affect sellers and telemarketers engaged in 

“telemarketing,” defined by the Rule to mean “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.”116 As noted above, staff 

estimate that 4,385 telemarketing entities are currently subject to the TSR, and that 

approximately 75 new entrants enter the market per year. For telemarketers, a small business is 

defined by the SBA as one whose average annual receipts do not exceed $16.5 million.117 

Because virtually any business could be a seller under the TSR, it is not possible to identify 

average annual receipts that would make a seller a small business as defined by the SBA. 

Commission staff are unable to determine a precise estimate of how many sellers or 

116 16 CFR 310.2(dd). The Commission notes that, as mandated by the Telemarketing Act, the interstate telephone 

call requirement in the definition excludes small business sellers and the telemarketers which serve them in their 

local market area, but may not exclude some small business sellers and telemarketers in multi-state metropolitan 

markets, such as Washington, DC.

117 Telemarketers are typically classified as “Telemarketing Bureaus and Other contact Centers,” (NAICS Code 

561422). See Table of Small Business Size Standards Matched to North American Industry Classification System 

Codes, available at https://www.sba.gov/sites/default/files/2019-

08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019,%202019.pdf (last visited Jan. 31, 2022).
55

telemarketers constitute small entities as defined by SBA. The Commission invites comment 

and information on this issue.

D. Projected Reporting, Recordkeeping, and Other Compliance Requirements, 

Including Classes of Small Entities and Professional Skills Needed to Comply

The proposed rule contains new recordkeeping requirements and modifications to 

existing recordkeeping requirements. The new recordkeeping requirements would require 

sellers or telemarketers to retain: (1) a copy of each unique prerecorded message; (2) call detail 

records of telemarketing campaigns; (3) records sufficient to show a seller has an established 

business relationship with a consumer; (4) records sufficient to show a consumer is a previous 

donor to a particular charitable organization; (5) records regarding the service providers that a 

telemarketer uses to deliver outbound calls; (6) records of a seller or charitable organization’s 

entity-specific do-not-call registries; and (7) records of the Commission’s DNC Registry that 

were used to ensure compliance with this Rule. The proposed modifications to the existing 

recordkeeping requirements would: (1) change the time period for retaining records from two

years to five years; (2) clarify the records necessary for sellers or telemarketers to demonstrate 

that the person they are calling has consented to receive the call; and (3) specify the format for 

records that include phone numbers, time, or duration. The small entities potentially covered by 

the proposed amendment will include all such entities subject to the Rule. The Commission has 

described the skills necessary to comply with these recordkeeping requirements in Section V 

above.

E. Identification of Duplicative, Overlapping, or Conflicting Federal Rules

The Telephone Consumer Protection Act of 1991, 47 U.S.C. 227, and its implementing 

regulations, 47 CFR 64.1200 (collectively, “TCPA”) contain recordkeeping requirements that 
56

may overlap with the recordkeeping requirements proposed by the new rule. For example, the 

proposed provision requiring sellers or telemarketers to keep a record of consumers who state 

they do not wish to receive any outbound calls made on behalf of a seller or telemarketer, 16 

CFR 310.5(a)(10), overlaps to some degree with the TCPA’s prohibition on a person or entity 

initiating a call for telemarketing unless such person or entity has procedures for maintaining 

lists of persons who request not to receive telemarketing calls including a requirement to record 

the request.118 The Commission’s proposed recordkeeping requirements do not conflict with the 

TCPA’s recordkeeping requirements because sellers and telemarketers can comply with both sets 

of requirements simultaneously. Moreover, in the Commission’s experience, the recordkeeping 

requirements under the TCPA do not lessen the need for the more robust recordkeeping 

requirements the Commission is proposing to further its law enforcement efforts. The 

Commission invites comment and information regarding any potentially duplicative, 

overlapping, or conflicting federal statutes, rules, or policies.

F. Significant Alternatives to the Proposed Amendments

The Commission has not proposed any specific small entity exemption or other 

significant alternatives to the proposed rule. The Commission has made every effort to avoid 

imposing unduly burdensome requirements on sellers and telemarketers by limiting the 

recordkeeping requirements to records that are both necessary for the Commission’s law 

enforcement and typically already kept in the ordinary course of business. 

VII. Communications by Outside Parties to the Commissioners or Their Advisors

Written communications and summaries or transcripts of oral communications respecting 

the merits of this proceeding, from any outside party to any Commissioner or Commissioner’s 

118 47 CFR 65.1200(d)(3).
57

advisor, will be placed on the public record.119 

VIII. Incorporation by Reference

Consistent with 5 U.S.C. 552(a) and 1 CFR part 51, the Commission proposes to 

incorporate the specifications of the following standard issued by the International 

Telecommunications Union: ITU-T E.164: Series E: Overall Network Operation, Telephone 

Service, Service Operation and Human Factors (published 11/2010). The E.164 standard 

establishes a common framework for how international telephone numbers should be arranged so 

that calls can be routed across telephone networks. Countries use this standard to establish their 

own international telephone number formats and ensure that those numbers have the information 

necessary to route telephone calls successfully between countries. 

This ITU standard is reasonably available to interested parties. The ITU provides free 

online public access to view read-only copies of the standard. The ITU website address for

access to the standard is: https://www.itu.int/en/pages/default.aspx. 

IX. Proposed Rule Language

List of Subjects in 16 CFR Part 310

Incorporation by reference, Telemarketing, Trade practices.

For the reasons stated above, the Federal Trade Commission proposes to amend part 310 

of title 16 of the Code of Federal Regulations as follows:

PART 310--TELEMARKETING SALES RULE 16 CFR PART 310

1. The authority for part 310 continues to read as follows:

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

119 See 16 CFR 1.26(b)(5).
58

PART 310 – [AMENDED]

2. In § 310.2,

a. Redesignate paragraphs (aa) through (hh) as follows:

Old section New section

(aa) (bb)

(bb) (cc)

(cc) (dd)

(dd) (ee)

(ee) (ff)

(ff) (gg)

(gg) (hh)

(hh) (ii)

b. Revise paragraph (q) to read as follows:

§ 310.2 Definitions

* * * * *

(q) Established business relationship means a relationship between a seller and a consumer based 

on:

(1) the consumer’s purchase, rental, or lease of the seller’s goods or services or a 

financial transaction between the consumer and seller, within the 540 days immediately 

preceding the date of a telemarketing call; or

(2) the consumer’s inquiry or application regarding a good or service offered by the 

seller, within the 90 days immediately preceding the date of a telemarketing call.

* * * * *
59

c. Add new paragraph (aa) to read as follows:

* * * * *

(aa) Previous donor means any person who has made a charitable contribution to a 

particular charitable organization within the two-year period immediately preceding the date of 

the telemarketing call soliciting on behalf of that charitable organization.

* * * * *

3. Revise § 310.5 to read as follows:

§ 310.5 Recordkeeping

(a) Any seller or telemarketer must keep, for a period of 5 years from the date the record is 

produced unless specified otherwise, the following records relating to its telemarketing activities:

(1) A copy of each substantially different advertising, brochure, telemarketing script, and 

promotional material, and a copy of each unique prerecorded message. Such records must be 

kept for a period of 5 years from the date that they are no longer used in telemarketing; 

(2) A record of each telemarketing call, which must include: 

(i) the telemarketer that placed or received the call;

(ii) the seller or person for which the telemarketing call is placed or received;

(iii) the good, service, or charitable purpose that is the subject of the telemarketing call;

(iv) whether the telemarketing call is to a consumer or a business;

(v) whether the telemarketing call is an outbound telephone call;

(vi) whether the telemarketing call utilizes a prerecorded message;

(vii) the calling number, called number, date, time, and duration of the telemarketing call;

(viii) the telemarketing script(s) and prerecorded message, if any, used during the call;
60

(ix) the caller identification telephone number, and if it is transmitted, the caller identification 

name that is transmitted in an outbound telephone call to the recipient of the call, and any 

contracts or other proof of authorization for the telemarketer to use that telephone number and 

name, and the time period for which such authorization or contract applies; and

(x) the disposition of the call, including but not limited to, whether the call was answered, 

connected, dropped, or transferred. If the call was transferred, the record must also include the 

telephone number or IP address that the call was transferred to as well as the company name, if 

the call was transferred to a company different from the seller or telemarketer that placed the 

call;

(3) For each prize recipient, a record of the name, last known telephone number, and last known 

physical or email address of that prize recipient, and the prize awarded for prizes that are 

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

(4) For each customer, a record of the name, last known telephone number, and last known 

physical or email address of that customer, the goods or services purchased, the date such goods 

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

amount paid by the customer for the goods or services;120 

(5) For each consumer with whom a seller asserts it has an established business relationship 

under §310.2(q)(2), a record of the name and last known telephone number of that consumer, the 

date that consumer submitted an inquiry or application regarding the seller’s goods or services, 

and the goods or services inquired about; 

120 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, will constitute compliance with 310.5(a)(4) of this Rule.
61

(6) For each consumer that a telemarketer intends to assert is a previous donor to a particular 

charitable organization under § 310.2(aa), a record of the name and last known telephone number 

of that consumer, and the last date that consumer donated to that particular charitable 

organization; 

(7) For each current or former employee directly involved in telephone sales or solicitations, a 

record of the name, any fictitious name used, the last known home address and telephone

number, and the job title(s) of that employee; 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; 

(8) All verifiable authorizations or records of express informed consent or express agreement 

(collectively, “Consent”) required to be provided or received under this Rule. A complete record 

of Consent includes the following:

(i) the name and telephone number of the person providing Consent;

(ii) a copy of the request for Consent in the same manner and format in which it was presented to 

the person providing Consent; 

(iii) the purpose for which Consent is requested and given; 

(iv) a copy of the Consent provided;

(v) the date Consent was given; and 

(vi) for the copy of Consent provided under §§ 310.3(a)(3), 310.4(a)(7), 310.4(b)(1)(iii)(B)(1), or

310.4(b)(1)(v)(A), a complete record must also include all information specified in those 

respective sections of this Rule;

(9) A record of each service provider a telemarketer used to deliver an outbound telephone call to 

a consumer on behalf of a seller for each good or service the seller offers for sale through 
62

telemarketing. For each such service provider, a complete record includes the contract for the 

service provided, the date the contract was signed, and the time period the contract is in effect. 

Such contracts must be kept for 5 years from the date the contract expires, or 5 years from the 

date the telemarketing activity that the contract applies to ceased, whichever period of time is 

shorter;

(10) A record of each consumer who has stated she does not wish to receive any outbound 

telephone calls made on behalf of a seller or charitable organization pursuant to § 

310.4(b)(1)(iii)(A) including: the name of the consumer, the telephone number(s) associated with 

the request, the seller or charitable organization from which the consumer does not wish to 

receive calls, the telemarketer that called the consumer, the date the consumer requested that she

cease receiving such calls, and the goods or services the seller was offering for sale or the 

charitable purpose for which a charitable contribution was being solicited; and

(11) A record of each version of the Commission’s “do-not-call” registry that was used to ensure 

compliance with § 310.4(b)(1)(iii)(B). Such record must include the date the version was 

obtained, and the seller or telemarketer who obtained that version. 

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

format, or place as they keep such records in the ordinary course of business. The format for 

records required by § 310.5(a)(2)(vii), and any other records that include a time or telephone 

number, must also comply with the following: 

(1) The format for domestic telephone numbers must comport with the North American 

Numbering plan;
63

(2) The format for international telephone numbers must comport with the standard established 

in the International Telecommunications Union’s Recommendation ITU-T E.164: Series E: 

Overall Network Operation, Telephone Service, Service Operation and Human Factors (2010);

(3) The time and duration of a call must be kept to the closest second; and

(4) Time must be recorded in Coordinated Universal Time (UTC). 

(c) Failure to keep each record required by § 310.5(a) in a complete and accurate manner, and in 

compliance with § 310.5(b), as applicable, is a violation of this Rule. 

(d) For records kept pursuant to § 310.5(a)(2), the seller or telemarketer will not be liable for 

failure to keep complete and accurate records pursuant to this Rule if it can demonstrate, with 

documentation, that as part of its routine business practice:

(1) It has established and implemented procedures to ensure completeness and accuracy of its 

records;

(2) It has trained its personnel, and any entity assisting it in its compliance, in such procedures;

(3) It monitors compliance with and enforces such procedures, and maintains records 

documenting such monitoring and enforcement; and

(4) Any failure to keep complete and accurate records was temporary and due to inadvertent 

error.

(e) 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 will

govern, and the seller or telemarketer, as the case may be, need not keep records that duplicate 

those of the other. If by written agreement the telemarketer bears the responsibility for the 

recordkeeping requirements of this section, the seller must establish and implement practices and 
64

procedure to ensure the telemarketer is complying with the requirements of this section. If the 

agreement is unclear as to who must maintain any required record(s), or if no such agreement 

exists, both the telemarketer and the seller are responsible for complying with this section.

(f) In the event of any dissolution or termination of the seller’s or telemarketer’s business, the 

principal of that seller or telemarketer must maintain all records 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 must maintain all records required under this section.

(g) The standards required in this section are incorporated by reference into this section with the 

approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All 

approved material is available for inspection at the FTC Library, (202) 326-2395, Federal Trade 

Commission, Room H-630, 600 Pennsylvania Avenue, NW, Washington, DC 20580, and is

available from the International Telecommunications Union, Telecommunications 

Standardization Bureau, Place des Nations, CH-1211 Geneva 20; (+41 22 730 5852); 

https://www.itu.int/en/pages/default.aspx. It is also available for inspection at the National 

Archives and Records Administration (NARA). For information on the availability of this 

material at NARA, call 202-741-6030 or go to www.archives.gov/federal-register/cfr/ibrlocations.html.

§ 310.6 [Amended]

4. Amend § 310.6 as follows:

a. In § 310.6(b)(1), (b)(2), and (b)(3), remove the words “§§ 310.4(a)(1), (a)(7), (b), and (c)” and 

add, in their place, the words “§§ 310.4(a)(1), (a)(8), (b), and (c)”; and

b. Revise § 310.6(b)(7) to read as follows:

§ 310.6 Exemptions
65

* * * * *

(b) * * *

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

services or a charitable contribution by the business, provided, however that this exemption does 

not apply to: 

(i) the requirements of § 310.3(a)(2) and § 310.3(a)(4); or

(ii) 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

5. Amend § 310.7 by revising paragraph (a) to read as follows:

§ 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, must serve written notice of its action on the Commission, 

if feasible, prior to its initiating an action under this Rule. The notice must be sent to the Office 

of the Director, Bureau of Consumer Protection, Federal Trade Commission, Washington, DC 

20580, at tsrnotice@ftc.gov and must 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 must serve the Commission with the required notice immediately upon instituting 

its action.

* * * * *

By direction of the Commission.

April J. Tabor,
66

Secretary
67