Billing Code: 6750-01S 

FEDERAL TRADE COMMISSION 

16 CFR Part 310 

[RIN: 3084–AB19] 

Telemarketing Sales Rule 

AGENCY: Federal Trade Commission 

ACTION: Advance notice of proposed rulemaking 

SUMMARY: As part of the Federal Trade Commission’s (“FTC” or “Commission”) regulatory 

review of the Telemarketing Sales Rule (“TSR” or “Rule”), the Commission issues this Advance 

Notice of Proposed Rulemaking (“ANPR”) to seek public comment on whether the Rule should 

continue to exempt telemarketing calls to businesses, whether the Rule should require a notice 

and cancelation mechanism with negative option sales, and whether to extend the Rule to apply 

to telemarketing calls that consumers initiate to a telemarketer ( i.e. “inbound telemarketing 

calls”) regarding computer technical support services. 

DATES: Comments must be received on or before [Insert date 60 days after publication in the 

Federal Register]. 

ADDRESSES: Interested parties may file a comment online or on paper by following the 

instructions in the Request for Comment part of the SUPPLEMENTARY INFORAMATION 

section below. Write “Telemarketing Sales Rule (16 CFR Section 310 - ANPR) (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 

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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 Commission reviews its rules and guides periodically to seek information about their 

costs and benefits and their regulatory and economic impact. The information obtained assists 

the Commission in identifying rules and guides that it should modify or rescind. Where 

appropriate, the Commission combines such periodic general reviews with reviews seeking 

information on specific questions about an industry. 

On August 11, 2014, the Commission initiated a regulatory review by publishing a notice 

in the Federal Register requesting public comment on the TSR (“Regulatory Review”).

1 It 

sought comment on questions including whether the Rule continues to be necessary and serve a 

useful purpose, whether and how the Rule’s compliance burdens and costs can be decreased and 

its benefits increased, and the impact of changes in the marketplace and new technologies on the 

Rule. It also requested comment on three specific issues; namely, whether the Rule should: (1) 

prohibit the sharing of preacquired account information for any purpose; (2) enhance protections 

for negative option and free offers, and apply them to inbound calls induced by general media 

1 79 FR 46732. 

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advertising; and (3) require sellers and telemarketers to maintain records of the numbers they dial 

in their telemarketing campaigns. 

Having reviewed the record, the Commission is issuing a Notice of Proposed Rulemaking 

(“NPRM”) seeking comments on the Commission’s proposal to amend the TSR’s recordkeeping 

provisions and to prohibit deception in business-to-business telemarketing calls.

2 The 

Commission is also issuing this ANPR seeking comment on whether to repeal all exemptions 

regarding telemarketing calls to businesses and inbound telemarketing of computer technical 

support services, and whether the TSR should provide consumers additional protections for 

negative option products or services. 

II. Background 

A. Statutory Basis for the TSR 

Enacted in 1994, the Telemarketing and Consumer Fraud and Abuse Prevention Act 

(“Telemarketing Act” or “Act”) targeted deceptive and abusive practices in telemarketing. It 

directed the Commission to adopt a rule with anti-fraud and privacy protections for consumers 

receiving telephone solicitations to purchase goods or services, and authorized the Commission 

and state attorneys general or other appropriate state officials, as well as private persons who 

meet certain jurisdictional requirements, to bring civil actions against violators in federal district 

court.3 

In determining whether certain practices that do not fall distinctly within the parameters of 

the Telemarketing Act’s emphasis on protecting consumer privacy are “abusive,” the Commission 

2 The Commission addresses the comments on recordkeeping submitted in response to the Regulatory Review in its 

proposed NPRM being published in conjunction with this ANPR. 

3 15 U.S.C. 6101-6108. Subsequently, the USA PATRIOT Act, Pub. L. No. 107–56, 115 Stat. 272 (Oct. 26, 2001), 

expanded the Telemarketing Act’s definition of “telemarketing” to encompass calls soliciting charitable 

contributions, donations, or gifts of money or any other things of value. 

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has applied the unfairness analysis set forth in Section 5(n) of the FTC Act.4 An act or practice is 

unfair under Section 5 of the Federal Trade Commission Act (“FTC Act”) if it causes or is likely to 

cause substantial injury to consumers, if any countervailing benefits to consumers or competition do 

not outweigh the consumer harm, and if that harm is not reasonably avoidable by consumers.5 

B. TSR History and Key Provisions 

Pursuant to the Telemarketing Act’s directive, the FTC promulgated the TSR on August 

23, 1995.6 The Commission subsequently amended the Rule on four occasions: (1) in 2003 to add 

the National Do-Not Call Registry and other requirements;7 (2) in 2008 to prohibit unwanted sales 

robocalls;8 (3) in 2010 to ban the telemarketing of debt relief services requiring an advance fee;9 and 

(4) in 2015 to ban the use in telemarketing of certain payment mechanisms widely used in fraudulent 

transactions.10 

The TSR applies to virtually all “telemarketing,” defined in accordance with the 

Telemarketing Act to mean “a plan, program, or campaign which is conducted to induce the 

4 Statement of Basis and Purpose and Final Rule Amendments (“2010 TSR Amendments”), 75 FR 48458, 48469 

(Aug. 10, 2010) (discussing the Commission’s use of the unfairness standard in determining whether a practice is 

“abusive”); see also 15 U.S.C. 45(n) (codifying the Commission’s unfairness analysis, set forth in a letter from the 

FTC to Hon. Wendell Ford and Hon. John Danforth, Committee on Commerce, Science and Transportation, United 

States Senate, Commission Statement of Policy on the Scope of Consumer Unfairness Jurisdiction, reprinted in In re 

Int’l Harvester Co., 104 F.T.C. 949, *95–101 (1984)) (“Unfairness Policy Statement”). 

5 15 U.S.C. 45(n). 

6 Statement of Basis and Purpose and Final Rule (“Original TSR”), 60 FR 43842 (Aug. 23, 1995). The effective date 

of the original Rule was December 31, 1995. 

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

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

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

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

9 See 2010 TSR Amendments (adding debt relief provisions). The Commission subsequently published correcting 

amendments to the text of section 310.4 the TSR. Telemarketing Sales Rule; Correcting Amendments, 76 FR 58716 

(Sept. 22, 2011). 

10 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). 

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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.”11 

The Rule wholly or partially exempts several types of calls from its coverage. For 

example, it generally exempts telemarketing calls to businesses.12 It also generally exempts 

inbound calls placed by consumers in response to direct mail or general media advertising.13 

However, there are certain “carve-outs” from some of the TSR’s exemptions that bring certain 

conduct back within the ambit of the rule, such as the carve-out for calls initiated by a consumer 

in response to a general media advertisement relating to investment opportunities.14 

The TSR is designed to protect consumers in a number of different ways. First, the TSR 

includes provisions governing communications between telemarketers and consumers, requiring 

certain disclosures and prohibiting material misrepresentations.15 Second, the TSR requires 

11 16 CFR 310.2(gg) (using the same definition as the Telemarketing Act, 15 U.S.C. 6106(4)). The TSR, like the 

Telemarketing Act, also excludes catalog sales solicitations. Id. The Act also explicitly states that the jurisdiction 

of the Commission in enforcing the Rule is coextensive with its jurisdiction under Section 5 of the FTC Act. 15 

U.S.C. 6105(b). 

12 16 CFR 310.6(b)(7); See also 2015 TSR Amendments, 80 FR at 77555 (clarifying that the “business-to-business” 

exemption under 310.6(b)(7) applies only to telemarketing calls that are “soliciting the purchase of goods or services 

or a charitable contribution [from a] business itself, rather than personal purchases or contributions by employees of 

the business”). 

13 16 CFR 310.6(b)(5)-(6). Moreover, the Rule exempts from the National Do Not Call Registry provisions calls 

placed by for-profit telemarketers to solicit charitable contributions; such calls are not exempt, however, from the 

“entity-specific” do not call provisions or the TSR’s other requirements. 16 CFR 310.6(a). 

14 See, e.g., 16 CFR 310.6(b)(5)-(6) (provisions related to general advertisements and direct mail solicitations); 16 

CFR 310.2(s) (definition of “investment opportunity”). The TSR’s definition of “investment opportunity” includes 

anything sold in part based on a representation of future income. In addition to traditional passive investments, the 

definition can also encompass work-from-home opportunities, real estate seminars, multi-level-marketing programs, 

and programs that purport to educate consumers about the stock market. 

15 The TSR requires that telemarketers soliciting sales of goods or services promptly disclose several key pieces of 

information in an outbound telephone call or an internal or external upsell: (1) the identity of the seller; (2) the fact 

that the purpose of the call is to sell goods or services; (3) the nature of the goods or services being offered; and (4) 

in the case of prize promotions, that no purchase or payment is necessary to win. 16 CFR 310.4(d); see also 16 CFR 

310.2(ee) (defining “upselling”). Telemarketers also must disclose in any telephone sales call the cost of the goods 

or services and certain other material information. 16 CFR 310.3(a)(1). In addition, the TSR prohibits 

misrepresentations about, among other things, the cost and quantity of the offered goods or services. 16 CFR 

310.3(a)(2). It also prohibits making false or misleading statements to induce any person to pay for goods or services 

or to induce charitable contributions. 16 CFR 310.3(a)(4). 

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telemarketers to obtain consumers’ “express informed consent” to be charged on a particular 

account before billing or collecting payment and, through a specified process, to obtain 

consumers’ “express verifiable authorization” to be billed through any payment system other 

than a credit or debit card.16 Third, the TSR prohibits as an abusive practice requesting or 

receiving any fee or consideration in advance of obtaining any credit repair services;17 recovery 

services;18 offers of a loan or other extension of credit, the granting of which is represented as 

“guaranteed” or having a high likelihood of success;19 and debt relief services.20 Fourth, the 

TSR prohibits credit card laundering21 and assisting and facilitating sellers or telemarketers 

engaged in violations of the TSR.22 Fifth, the TSR, with narrow exceptions, prohibits 

telemarketers from calling consumers whose numbers are on the National Do Not Call Registry 

or who have specifically requested not to receive calls from a particular entity.23 Finally, the 

TSR requires that telemarketers transmit to consumers’ telephones accurate Caller ID 

information24 and places restrictions on calls made by predictive dialers25 and those delivering 

prerecorded messages.26 

16 16 CFR 310.4(a)(7); 16 CFR 310.3(a)(3). 

17 16 CFR 310.4(a)(2). 

18 16 CFR 310.4(a)(3). As the Commission has previously explained, “[in] recovery room scams . . . a deceptive 

telemarketer calls a consumer who has lost money, or who has failed to win a promised prize, in a previous fraud. 

The recovery room telemarketer falsely promises to recover the lost money, or obtain the promised prize, in 

exchange for a fee paid in advance. After the fee is paid, the promised services are never provided. In fact, the 

consumer may never hear from the telemarketer again.” Original TSR, 60 FR at 43854. 

19 16 CFR 310.4(a)(4); see 2003 TSR Amendments, 68 FR at 4614 (finding that these three services were 

“fundamentally bogus”). 

20 16 CFR 310.4(a)(5). 

21 16 CFR 310.3(c). 

22 16 CFR 310.3(b). 

23 16 CFR 310.4(b)(1)(iii). 

24 16 CFR 310.4(a)(8). 

25 16 CFR 310.4(b)(1)(iv); 16 CFR 310.4(b)(4) (call abandonment safe harbor). 

26 16 CFR 310.4(b)(1)(v). 

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C. Legal Standard for Retaining, Amending, or Repealing the TSR 

There is a presumption that an existing rule should be retained.27 A decision to retain any 

portion of a current rule may be based upon evidence gathered during the original rulemaking 

and the Commission’s subsequent enforcement experience, as well as evidence adduced during a 

new rulemaking.28 Moreover, the Telemarketing Act’s rulemaking authorization applies not 

only to an initial rulemaking, but also to the amendment or repeal of a telemarketing rule.29 

Because of the “potentially pervasive and deep effect” of FTC rules,30 the 

Commission carefully scrutinizes the regulatory review record to determine whether the record is 

reliable and provides sufficient support for undertaking an industry-wide rulemaking or 

amendment proceeding. In particular, the Commission routinely evaluates a number of factors, 

including the relative costs and benefits of the Rule, industry compliance, the effect on 

competition and consumer choice, its enforcement experience, and the adequacy of case-by-case 

law enforcement under the FTC Act to address existing problems that fall outside the Rule’s 

scope.31 In addition, as a responsible steward of the public funds allocated to it by Congress, the 

Commission considers whether a rulemaking or amendment proceeding would serve the public 

interest, recognizing that the rulemaking process requires a substantial, long-term investment of 

the Commission’s finite resources that could otherwise be devoted to enforcement actions 

against rule violators. 

27 See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42 (1983). 

28 Amended Funeral Rule Statement of Basis and Purpose, 59 FR 1592, 1596 (Jan. 11, 1994). 

29 Federal Trade Commission Organization, Procedures and Rules of Practice, 16 CFR 1.25. See 15 U.S.C. 

553(e); see also 2003 TSR Amendments, 68 FR at 4583. 

30 American Optometric Ass’n v. FTC, 626 F.2d 896, 905 (D.C. Cir. 1980). 

31 See, e.g., 2003 TSR Amendments and 2008 TSR Amendments. 

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D. Summary of the Regulatory Review Record 

The regulatory review record contains 114 unique responsive comments.32 They include: 

two comments from other law enforcement agencies;

33 one comment from a telemarketer;34 one 

from an industry services provider;35 one from a credit card association;

36 and ten comments 

from industry trade associations representing companies that provide telemarketing services, 

employ telemarketers, or make their own telemarketing calls to consumers.37 There are three 

comments on behalf of 13 consumer advocacy groups,38 one from an academic,39 two 

submissions attaching essentially identical comments from 2,064 Illinois residents,40 and 92 

unique comments from individual consumers.41 

32 We cite public comments here by the name of the commenting organization or individual and the comment 

number. Although the comment record lists 118 submissions, one is a duplicate, American Resort Development 

Association, Nos. 00100, 00101; one is listed twice, Abrams, No. 00038; one contains a final attachment to a prior 

submission, Citizens Utility Board, No. 00037 (supplementing No. 00036); and one is simply a comment period 

extension request, PACE, No. 00039, that was granted by the Commission. 79 FR 61267 (Oct. 10, 2014). 

33 National Assn. of Attorneys General (“NAAG”), No. 00117 (on behalf of the attorneys general from 37 states 

and one territory); U.S. Department of Justice (“DOJ”), No. 00111. 

34 InfoCision Management Corp., No. 00108. 

35 NobelBiz, Inc., No. 00104. 

36 Visa, Inc., No. 00109. 

37 American Bankers Insurance Association (“ABIA”), No. 00106; American Resort Development Association 

(“ARDA”), No. 00100; Brand Activation Association (“BAA”), No. 00115; Consumer Credit Industry Association 

(“CCIA”), No 00098; Direct Marketing Association (“DMA”), No. 00103; Electronic Retailing Association 

(“ERA”), No. 00095; MPA-The Association of Magazine Media (“MPA”), No. 00116; National Automobile 

Dealers Association (“NADA”), No. 00112; Newspaper Association of America (“NAA”), No. 00099; and the 

Professional Association for Customer Engagement (“PACE”), No. 00107. 

38 AARP, No. 00097; Center for Responsible Lending (“CRL”), No. 00093; and National Consumer Law Center on 

behalf of itself and the 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”), No. 00110. 

39 The Pennsylvania State University, No. 00114. 

40 Citizens Utility Board, Nos. 000356 and 00037. 

41 Aside from the Citizens Utility Board comments, the record contains 93 consumer comments, but there are 

duplicate entries for Abrams, No. 00038. Several consumer comments sought relief from collection agency calls 

that the TSR does not cover. See, e.g., Gray, No. 00007; Castallo, No. 00128; Wysong, No.00015; Branner, No. 

00121; Lehman, No. 00120; and Valdes, No.00014. Several advocate extending the TSR’s do-not-call provisions to 

cover political, charity, or survey calls. See, e.g., Wright, No. 00002; Anonymous, No. 00089; Rosenow, No. 

00067; Goodman, No. 00032; and Lehnen, No. 00030. 

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III. Regulatory Review: Continuing Need for the TSR 

All commenters generally agree on the continuing need for the TSR but differ in their 

opinions as to whether amendments are necessary. Consumers and their advocates largely argue 

for amendments they believe will enhance consumer protection including by closing “loopholes” 

in the TSR, and for more enforcement. Industry representatives, on the other hand, largely 

advocate against any amendments, arguing that the current regulatory requirements, coupled 

with the existence of self-policing industry organizations, provide consumers sufficient 

protections. 

A. Consumer Perspective 

Consumers and their advocates all support the continuing need for the TSR. The 2,064 

largely identical comments from Illinois consumers ask the Commission to “keep and 

strengthen” the TSR’s consumer protections that have “battled telemarketing fraud and deception 

for nearly two decades,”42 and four other individual consumers expressly agree that the TSR is 

still needed and should be retained.43 AARP asserts that it “strongly agrees that there is a 

continuing need for the [TSR],44 and the National Consumer Law Center (“NCLC”) and other 

consumer groups state that the TSR “provides important protections for consumers and clear 

rules of the road for the telemarketing industry.”45 

42 Citizens Utility Board, Nos. 00036 and 00037; see Rusch, 00046. 

43 Ashley L., No. 00052 (TSR is “still greatly needed, in its entirety”); Leef, No. 00085 (“Please improve – or at 

least maintain the status quo”); Wright, No. 00002 (“The Do Not Call registry is a valuable resource for consumers 

and should be continued”); West Italian, No. 00113 at 1 (“We need the TSR, and its enforcement, more than ever”). 

44 AARP, No. 00097, at 2. 

45 NCLC, No. 00110, at 1. 

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Comments from two other consumer advocates,46 an academic engaged in relevant 

behavioral research,47 and two state and federal law enforcement agencies48 state that while the 

TSR is still needed, it is also in need of improvements. In particular, consumers and their 

advocates argue for additional protections. These include heightened restrictions on the “data 

pass” of preacquired account information from an initial seller to a third party seller49 

comparable to those of the Restore Online Shoppers’ Confidence Act (“ROSCA”) for online 

transactions,

50 extending the TSR’s requirements to inbound calls,51 and requiring sellers and 

telemarketers to create and maintain their own records of the numbers dialed in telemarketing 

campaigns to facilitate enforcement by federal and state agencies and private lawsuits by injured 

consumers.52 

More than half of the unique individual consumer comments make a case that more 

enforcement is needed. They include requests for enforcement against particular violators,53 

reports about specific violations of the TSR,54 complaints about continuing unwanted calls,55 

46 CRL, No. 00093, at 1; American Association for Justice, No. 00102, at 1. 

47 Grossklags, No. 00114. 

48 NAAG, No. 00117, at 1-2; DOJ, No. 00111, at 1. 

49 Citizens Utility Board, Nos. 00036 and 00037. 

50 15 U.S.C. 8401. ROSCA requires a third-party merchant that offers add-on products or services after a sale by the 

initial seller to obtain billing information directly from the consumer, rather than from the initial seller, so the 

purchaser will understand that there is or will be a charge for any add-on purchase. See also AARP, No. 00097, at 3. 

51 Citizens Utility Board, Nos. 00036 and 00037. 

52 West Italian, No. 00113 at 1; AARP, No. 00097, at 5. 

53 Moody, No. 00094; Smith, No. 00091; Austin, No. 00050; Pecoraro, No. 00126; Hall, No. 00012; Peterson, 

No. 00004; Macias, No. 00123; and Ramseur, No. 00118. 

54 Buchko, No. 00122; Harr, No. 00020; Branner, No. 00121; Alabi, No. 00006; Mercurio, No. 00127; Texas Child, 

No. 00018; Hines, 00124; Greenwood, No. 00125 Taylor, No. 00022; and Hays, No. 00049. 

55 Swirsky, No. 00025; Duffield, No. 00021; and Harr, No. 00020. 

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demands for more general enforcement of the TSR’s Do Not Call provisions,56 appeals for more 

severe penalties to deter violations or a ban on all telemarketing,57 and concern that violators are 

calling with impunity due to inadequate enforcement.58 The 2,064 Illinois consumer comments 

request amendments that: 1) require telemarketers to provide recordings of their calls, 2) ban 

third-party use of pre-acquired account information, and 3) request stronger consumer protection 

against inbound telemarketing calls placed in response to advertisements.59 AARP also notes 

that the number of telemarketing complaints filed with the FTC and Federal Communications 

Commission (“FCC”) has risen significantly, and “a rise in complaints means more need for 

enforcement.”60 

B. Industry Perspective 

Industry comments support the continuing need for the TSR and generally oppose any 

amendments. As one trade organization observes, “the FTC’s enforcement actions under the 

Rule have provided industry with adequate and predictable notice as to what practices the agency 

views as acceptable and unacceptable.”61 Another notes that “[i]n its current form, the TSR has 

functioned well and continues to serve its purpose of protecting the customers we serve as well 

as the operations of legitimate businesses.”62 The Professional Association for Customer 

56 Johannsen, No. 00078; Hardy, No. 00071; Boles, No. 00056; Olson, No. 00027; Taylor, No. 00022; Burton, No. 

00005; Kavanaugh, No. 00041; Love, No. 00068; Bradshaw, No. 00065; Gallagher, No. 00051; Waterbury, 

No. 00044; Dougherty, No. 00043; Schugardt, No. 00031; McGlinchey, No. 00042; Lennon, No. 00028; Cockerill, 

No. 00082; West Italian, No. 00113 at 2; Rynearson-Moody, 00029; and Whi, No. 00017. 

57 Thompson, No. 00010; Abrams, No. 00038; and Bethea, No. 00016; and Keung, No. 00023. 

58 Miller, No. 00057; Marcus, No. 00026; Rothenbach, No. 00024; Gindin, No. 00009; Luttrell, 00077; and 

Karsbaek, No. 00074; 

59 Citizens Utility Board, Nos. 00036 and 00037. 

60 AARP, No. 00097, at 5. See also NCLC at 11-12 (applauding FTC enforcement action targeting robocall 

facilitators). 

61 BAA, No. 00115, at 2. 

62 MPA, No. 00116, at 1. 

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Engagement (“PACE”) states that “[t]he Rule has had an overall positive impact on consumers . . 

. and there is a continuing need for the majority of its protections.”63 

PACE, however, also asserts that while it “supports strong enforcement against 

companies that intentionally violate the Rule’s DNC provisions,” “no additional substantive 

changes are necessary at this time.”64 The Electronic Retailing Association (“ERA”) agrees that 

“no revisions to the TSR are warranted.”65 

Most of the industry comments maintain that “the current framework of laws, regulations, 

and industry self-regulation adequately covers telemarketing.”66 The Direct Marketing 

Association (“DMA”) stresses that “[a]ny changes to the Rule would have adverse impacts on 

the industry and consumers alike,”67 and the Consumer Credit Industry Association (“CCIA”) 

states that “[d]ue to the multiple layers of [federal and state] regulation and legislation, the 

industry is in a precarious position in attempting to comply.”68 PACE similarly asks that the 

Commission “consider the impact other laws and regulations have had on businesses before 

adopting any additional regulations of its own or expanding the reach of current regulations.”69 

Several industry trade associations emphasize the voluntary compliance steps they have 

taken by establishing Self-Regulatory Organizations (“SROs”) to enhance consumer protection. 

63 PACE, No. 00107, at 2; see also CASRO, No. 00105 (“strongly believes there is a continuing need” for the TSR 

and lauding it for preventing harm to consumers and the legitimate research industry). 

64 PACE, No. 00107, at 2. 

65 ERA, 00095, at 2 (the TSR provides “the FTC with the tools it needs to prosecute offensive telemarketing 

behavior”). See also BAA, 00115, at 2 (the TSR provides a “robust and effective regulatory tool with which to 

investigate and prosecute offensive telemarketing activities”). 

66 DMA, No. 00103, at 2; see also, e.g, BAA, No. 00115, at 2; PACE, No. 00107, at 2; ERA, No. 00095, at 2 

(likewise supporting the TSR but opposing any changes). 

67 DMA, No 00103 at 2. 

68 CCIA, No. 00098, at 4. 

69 PACE, No. 00107, at 2. 

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DMA’s Guidelines for Ethical Business Practice (“DMA Guidelines”)70 and the PACE SRO71 

were created to ensure compliance not only with the TSR, but also all state telemarketing laws 

and regulations. DMA asserts that its Guidelines include a “robust accountability program” that 

is “enforced by DMA’s Ethics Committee that “processes tens of thousands of complaints 

annually, and takes action against members and non-members alike,” including disclosure of 

“cases where companies failed to conform their practices to industry requirements.”72 The 

PACE-SRO accredits contact centers that “undergo an initial and recurring onside compliance 

assessment, and are subject to quarterly data audits of their outbound calling records, and those 

that do not comply fail to obtain accreditation or have their accreditation revoked.73 

Both DMA and PACE emphasize that their SRO programs require compliance not only 

with telemarketing regulations, but also with industry “best practices,” and that they can amend 

SRO requirements to address new technology and other issues more quickly than government 

can amend regulations.74 The associations ask the FTC to encourage and support their SRO 

efforts as a “strong tool that can assist in preventing the need for increased regulations.”75 

The public comments on the record from industry and consumer stakeholders, as well as 

the Commission’s own law enforcement experience, persuade the Commission that the TSR 

70 DMA, No. 00103, at 3-4. 

71 PACE, No. 00107, at 3-4 (discussing PACE-SRO, available at http://www.pacesroconnect.org) (last visited Jan. 

31, 2022). 

72 DMA No. 00103, at 3-4; cf. ERA, No. 00095, at 6. 

73 PACE, No. 00107, at 3-4. 

74 DMA, No. 00103, at 3; cf. PACE, No. 00107, at 3 (SROs “provide greater flexibility for constantly changing 

business environments and technologies”). 

75 ERA, No. 00095, at 7; cf. PACE, No. 00107, at 3 (arguing that “effective SROs are a strong tool that can assist in 

preventing the need for increased regulations”); DMA, No. 00103, at 3 (“Self-Regulation is the Appropriate 

Approach”). 

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continues to serve an important and useful public purpose. The Commission invites comment on 

the specific issues discussed below. 

IV. Regulatory Review: Comments on Specific Issues 

Commenters also provided responses to the specific issues identified in the Regulatory 

Review. The majority of the comments focused on whether the Rule should: (1) prohibit or 

regulate the use or retention of preacquired account information; (2) enhance protections for 

negative option and free offers, and apply them to inbound calls induced by general media 

advertising; and (3) require sellers and telemarketers to maintain records of the numbers they dial 

in their telemarketing campaigns. 

A. Should the TSR Ban the Data Pass of Preacquired Account Information? 

The TSR prohibits the disclosure or receipt, for consideration, of unencrypted consumer 

account numbers for use in telemarketing, except to process a payment.76 It also prohibits 

telemarketers and sellers from causing a consumer to be charged, directly or indirectly, without 

the consumer’s express informed consent (i.e. “unauthorized billing”) for all transactions, 

including those using preacquired account information.77 It does not, however, generally bar the 

transfer or “data pass” of preacquired consumer account information from one seller or 

telemarketer to a third party seller or telemarketer, unless doing so results in unauthorized 

billing.

78 In 2010, Congress enacted ROSCA,79 requiring a post-transaction third-party seller to 

76 16 CFR 310.4(a)(6). 

77 16 CFR 310.4(a)(7). The Commission reiterates that Section 310.4(a)(7) is not limited to transactions involving 

preacquired account information, but applies to all transactions. See 2003 TSR Amendments, 68 FR at 4620 (stating 

the unauthorized billing provision applies to all transactions and not just transactions involving preacquired account 

information). 

78 16 CFR 310.4(a)(7); see also 2003 TSR Amendments, 68 FR at 4620 (The Commission considered a general data 

pass ban on the use of preacquired account information but instead focused on the harm resulting from the use of 

preacquired account information and included a broader prohibition generally banning unauthorized billing under 

Part 310.4(a)(7).). 

79 15 U.S.C. 8401. 

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obtain a consumer’s “express informed consent” to be charged,80 and prohibiting an “initial 

merchant” from disclosing the billing information of a consumer for use in an internet sale.81 

The operating rules of three of the major credit card associations are consistent with 

ROSCA in prohibiting any “disclosure, exchange, or use” by and among their merchants of 

preacquired account information for their branded credit, debit and prepaid cards, except to 

process payments.82 Thus, the card association rules now require each merchant to obtain a 

consumer’s full account number directly from the consumer at the time of her first purchase from 

the merchant. In light of ROSCA’s passage and the subsequent operating rule changes of the 

credit card industry, the Regulatory Review sought comment on whether the TSR should be 

amended to generally ban the data pass of preacquired account information. 

AARP’s comment expresses the view that “allowing telemarketers to share information 

with third parties without consent creates a large loophole that will allow data collectors and lead 

generators to . . . harm consumers by signing them up for products and services they never 

intended to purchase or hassling them with unwanted telephone calls.”83 The National 

Association of Attorneys General (“NAAG”) concurs, arguing that the “very nature of 

telemarketing makes the use of preacquired account information difficult to identify” and 

consumers should have the same protection against unauthorized charges arising from the 

exchange of preacquired account information in telemarketing sales as ROSCA provides in 

internet sales, because the same consumer confusion that spurred ROSCA’s passage exists in the 

80 15 U.S.C. 8402(a)(2). 

81 15 U.S.C. 8402(b). 

82 79 FR at 46734-35 & n. 34; VISA, No. 00109, at 2. 

83 AARP, No. 00097, at 3; see also Rusch, No. 00046; Beverly Anne, No. 00066; Tripp, No. 00063; and West 

Italian, No. 00113, at 2. 

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telemarketing context.84 NCLC also supports a ban, and asserts that data pass is not necessary to 

conduct legitimate business, arguing that such transfers meet the unfairness test the Commission 

employs to ban abusive telemarketing practices.85 VISA likewise urges the Commission to 

consider “[h]armonizing the TSR with ROSCA” to ensure that data pass in telemarketing is not 

just prevented by the credit card associations and cannot “migrate to other forms of payment to 

the detriment of consumers.”86 

Industry advocates do not recommend adding a data pass ban to the TSR. The 

Association of Magazine Media (“MPA”) asserts that in the wake of ROSCA and the credit card 

rules, “usage of the data pass process has declined steadily,” and suggests that “concerns 

regarding deceptive or unfair transfers of preacquired account information are no longer 

necessary.”87 DMA notes that its Guidelines “instruct DMA members not to transfer or 

exchange credit card numbers when a consumer has a reasonable expectation that the 

information will be kept confidential.”88 Another possible explanation is that federal laws bar 

financial institutions from disclosing account numbers to non-affiliates for marketing purposes, 

including telemarketing.89 

DMA and PACE argue against the need for a data pass prohibition for a different reason; 

namely, that the TSR already requires a business to obtain a consumer’s “express informed 

consent” before it can charge her account for a purchase, even if it already has her billing 

84 NAAG, No. 00117, at 4; AARP, No. 00097, at 3, 5. 

85 NCLC, No. 00110, at 4-5 (citing the harm from data pass that consumers cannot avoid and the lack of benefits to 

consumers or competition). 

86 VISA, No. 00109, at 4. 

87 MPA, No. 00116, at 2. 

88 DMA, No. 00103, at 6. 

89 ABIA, No.00106, at 2; see also 15 USC 6802(d); 12 CFR 1016; 15 CFR 313.12. 

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information.

90 Moreover, for payments not made by a debit or credit card, the TSR requires 

“express verifiable authorization” of the charge by a written authorization signed by the 

consumer, an audio recording of an oral authorization, or written confirmation of the transaction 

by mail.91 DMA and MPA also assert that the evidence underpinning enactment of ROSCA 

cannot support a TSR data pass ban, because online sales are fundamentally different from 

telemarketing sales.92 

At this time, it is unclear that a TSR amendment restricting the data pass of preacquired 

account information is necessary to prevent unauthorized billing. The TSR currently prohibits 

data pass that causes unauthorized billing.93 It also requires sellers and telemarketers to obtain a 

consumer’s “express informed consent” to be charged for a good, service, or charitable 

contribution for any form of payment94 and “express verifiable authorization” for payments other 

than credit or debit cards.95 Further, card association rules and other federal laws, including the 

2015 TSR payment method prohibitions,96 provide additional protections against unauthorized 

billing. 

90 DMA, No. 00103, at 6; PACE, No. 00107, at 4; see 16 CFR 310.4(a)(7). PACE also expresses concern that a data 

pass ban would prevent sellers from using third-party telemarketers, who must be able to transmit billing 

information back to the seller. 

91 16 CFR 310.3(a)(3). 

92 DMA, No. 00103, at 5; MPA, No. 00116, at 2; but see NAAG No. 00117, at 5 (“the same consumer confusion 

which spurred ROSCA’s passage also exists in the telemarketing arena”). 

93 16 CFR 310.4(a)(7). 

94 Id. 

95 16 CFR 310.3(a)(3). 

96 On December 14, 2015, one year after the regulatory review comment period closed, the Commission issued 

antifraud amendments to the TSR. 2015 TSR Amendments, 80 FR at 77520. The amendments prohibited the use of 

remotely created checks, remotely created payment orders, cash-to-cash money transfers and cash reload 

mechanisms in telemarketing. 16 CFR 310.4(a)(9) & (10). Each of the prohibited payment mechanisms had been 

widely used by fraudulent sellers and telemarketers and three commenters urged the Commission to adopt these 

amendments during the regulatory review comment period. AARP, No. 00097, at 3; NCLC, No. 00110, at 15; 

NAAG, No. 00117, at 12-13. During its rulemaking, the Commission concluded that the TSR’s “express verifiable 

authorization” requirement for payments other than credit or debit cards was not sufficient to prevent consumer 

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The Commission, however, does recognize that it may be difficult to identify when 

preacquired account information has resulted in unauthorized billing in the context of 

telemarketing, in part because it is not always clear whether consumers have provided “express 

informed consent” or “express verifiable authorization” (collectively, “consent”) for a particular 

transaction.

97 To address this challenge, among others, the Commission is issuing an NPRM that 

would require telemarketers and sellers to retain complete records of consumer consent, 

including documentation on the purpose for which consent is sought, in the same manner and 

format that the request for consent is presented to consumers.98 The Commission believes that 

the proposed recordkeeping requirements will help clarify the extent to which the use of 

preacquired account information may result in unauthorized billing, and whether additional 

protections against the data pass of preacquired account information are necessary. Thus, the 

Commission is seeking comment on these issues in the NPRM. 

B. Should the TSR Require Consumer Consent for the Retention of Account 

Information? 

When a consumer gives a seller or telemarketer her account information to pay for a 

purchase, that information will be covered by the TSR’s definition of “preacquired account 

information” if the seller retains and uses the information for subsequent purchases in the same 

or a subsequent telemarketing call.99 The Regulatory Review asked whether sellers and 

harm because unscrupulous telemarketers that use these payment methods typically ignore the TSR’s restrictions. 

2015 TSR Amendments, 80 FR at 77543. Given the pervasiveness of fraud resulting from these payment 

mechanisms and the minimal legitimate uses for them, the Commission decided to ban these payment mechanisms 

as a bright line rule that benefits competition and consumers. Id. at 77537. 

97 See, e.g., NAAG, No. 00117, at 4- 5. See also FTC v. Vacation Property Services, No. 8:110cv099585, 2012 WL 

1854231, at *3 (M.D. Fla. May 21, 2012) (rejecting defendant’s arguments that it had obtained consumers’ express 

consent through a separate verification call); FTC v. Publishers Business Services, Inc., 821 F. Supp. 2d 1205, 1224 

(D. Nev. 2010) (same). 

98 See NPRM Section III.B.4. 

99 16 CFR 310.2(z). 

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telemarketers should be required to obtain consumer consent to retain preacquired account 

information to prevent unauthorized billing. 

Consumer advocates acknowledge that consumers would not be surprised that a seller to 

whom they have given their account information has retained it, since sellers may need it for 

purposes such as canceling the transaction and crediting the consumer’s account.100 PACE and 

DMA also argue that from an industry perspective, sellers need to keep account information 

obtained directly from a consumer not only for cancellation purposes, but also to facilitate and 

expedite returns, exchanges, refunds, and order modifications.101 

NCLC urges the Commission to amend the TSR to add four safeguards to protect 

consumers if sellers retain their billing information.102 Specifically, NCLC requests the 

following protections in transactions involving preacquired account information: (1) sellers 

should obtain a consumers’ “express verifiable consent” to retain their billing information; 

(2) sellers should confirm the last four digits of the consumers’ account number, and if the 

account has an expiration date, to confirm the expiration date; (3) sellers should allow consumers 

the right to revoke their consent to retain their account information at any time; and (4) sellers 

should allow consumers to use a different account than the one previously provided to complete 

a transaction. 

Industry advocates argue against amending the TSR to add safeguards for transactions 

involving preacquired account information. They point out that the “retention [of preacquired 

100 NCLC, No. 00110, at 6. 

101 PACE, No. 00107, at 4; DMA, No. 00103, at 7. MPA notes that its members generally do not retain account 

information except in the case of automatic renewal transactions in which case the information is retained as “a 

service of convenience.” No. 00116 at 2. 

102 NCLC, No. 00110, at 7. 

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account information] is different from charging a consumer’s account,”103 and consumers have 

sufficient protection because the TSR already requires sellers to obtain a consumer’s 

authorization to charge her account even if they have the information on file.104 DMA also 

emphasizes that sellers and telemarketers must obtain a consumer’s “express informed consent” 

before charging an account, and must “identify the account to be charged with ‘sufficient 

specificity for the customer or donor to understand what account will be charged.’”105 

While NCLC’s proposals may have merit, neither the Commission’s law enforcement 

experience nor the regulatory review provide sufficient evidence to warrant further Commission 

action at this time. 

C. Should the TSR Provide Additional Protections For Negative Option Offers, 

Including Free-to-Pay Conversion transactions? 

For telemarketing transactions involving preacquired account information, such as 

negative option offers, the TSR requires sellers and telemarketers to: (1) identify the account to 

be charged with sufficient specificity so that a consumer understands what account will be 

charged; and (2) confirm the consumer’s “express agreement” to charge that account to complete 

the transaction. 106 For transactions involving both preacquired account information and a “freeto-pay conversion107 feature, such as free-trial offers, the TSR provides additional protections by 

requiring sellers and telemarketers to record the entire telemarketing call, obtain the last four 

103 DMA, No. 00103, at 6. 

104 PACE, No. 00107, at 4. 

105 DMA, No. 00103, at 3 (quoting 16 CFR 310.4(a)(7)(ii)(A) (requiring, in any transaction involving preacquired 

account information, that sellers and telemarketers obtain a consumer’s “express agreement” to be charged using an 

account identified with sufficient specificity for the consumer to understand what account will be charged as 

evidence of her “express informed consent”)). 

106 16 CFR 310.4(a)(7)(ii). 

107 16 CFR 310.2(r) (defining “free-to-pay conversion” as an offer in which the consumer will receive a product or 

service for free for an initial period and will incur an obligation to pay for it if she does not take affirmative action to 

cancel before the end of that trial period). 

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digits of the account number to be used, and confirm the consumer’s “express agreement” to 

charge that account to complete the transaction.108 For payment mechanisms other than credit or 

debit cards, the telemarketer or seller must also obtain “express verifiable authorization,” which 

for oral authorizations includes the number of times a consumer will be charged and the dates of 

those charges.109 The Regulatory Review sought comment on whether changes in the 

marketplace require additional protections for negative option offers, including “free-to-pay 

conversion” transactions.110 

Consumer advocates argue that the existing protections are inadequate and offer a myriad 

of recommendations for enhanced protections. NAAG argues additional protections are 

necessary because all negative option offers generate “confusion, misunderstanding, and outright 

deception” because some consumers do not understand that sellers will interpret their silence and 

inaction as authorization to charge recurring payments.111 NAAG suggests an amendment to the 

TSR requiring a statement of the negative option terms in the initial telemarketing transaction 

that is separate from the other terms of the offer, and a separate audible acceptance of the 

negative option terms.112 NAAG also suggests that the TSR should require telemarketers to send 

a “confirmation to the consumer, whether by mail or otherwise” whenever a consumer is 

enrolled in a negative option feature.113 NCLC suggests that for all negative option offers using 

preacquired account information, the TSR should require sellers and telemarketers to obtain full 

108 16 CFR 310.4(a)(7)(i). 

109 16 CFR 310.3(a)(3)(ii); see also 2015 TSR Amendments. 

110 79 FR at 46735. 

111 NAAG, No. 00117, at 3, 6. 

112 Id. 

113 Id. 

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account numbers directly from the consumer every time they charge the consumer so consumers 

will understand that their account will be charged.114 

For “free-to-pay conversion” offers in particular, NCLC urges the Commission to adopt 

an amendment barring sellers from obtaining account information until the end of the trial 

period, or at least an amendment requiring sellers to give consumers timely phone or email 

reminders about how to avoid a charge a few days before they will charge the consumer’s 

account.115 AARP’s comment concurs and proposes requiring sellers to send a reminder notice 

and obtain confirmation of a consumer’s continued desire to complete the purchase not only for 

“free-to-pay conversion” offers, but for all negative option offers.116 

NAAG also advocates for stronger protections in the context of free-to-pay conversion 

offers. Specifically, NAAG suggests that the Commission extend Section 310.4(a)(7) to all such 

offers, even if no preacquired account information is used, to ensure telemarketers obtain a 

consumer’s express informed consent before telemarketers are able to bill or send invoices to 

consumers after the “free trial” is over.117 

Industry advocates object to all of these proposed changes. DMA emphasizes that both 

card association rules and SRO Guidelines require a third-party seller with preacquired account 

information to obtain the full account number directly from the consumer for “free-to-pay 

conversion” offers.118 

114 NCLC, No. 00110, at 7. 

115 Id. at 9-10. NCLC also advocates requiring that an automated toll-free telephone number be made available to 

accept cancellations without speaking to a representative 24 hours a day, and forbidding requirements for a written 

notice of cancellation, along with other conditions that make it unduly burdensome to cancel. 

116 AARP, No. 00097, at 4; cf. NAAG, No. 00117, at 11 (urging that the TSR require a telemarketer to send a 

confirmation to the consumer at the time of enrollment in a negative option that clearly and conspicuously sets forth 

the terms of the negative option plan). 

117 NAAG, No. 00117, at 11. 

118 DMA, No. 00103, at 4, 6. 

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Industry also contends that the TSR’s current requirements appropriately balance 

consumer convenience and protection. For example, MPA argues that free trials and automatic 

renewals benefit consumers, particularly in situations where consumers are repeat customers and 

already have an established business relationship with the seller. MPA and other industry 

representatives state that requiring consumers to repeat their full 16-digit card number for each 

additional negative option offer, such as an automatic magazine subscription renewal, would 

frustrate consumers and would negatively impact legitimate business.119 

DMA concurs, emphasizing that the TSR and its SRO Guidelines require sellers to 

disclose all material terms of the offer, “identify the account [to be charged] with specificity,” 

and “obtain affirmative consent from the consumer to charge that account.”120 DMA further 

argues that requiring sellers to obtain full account information from existing customers simply 

increases the cost and time involved in the transaction, thus frustrating consumers without 

providing any additional protections.121 PACE adds that the TSR’s requirement that sellers and 

telemarketers obtain a consumer’s authorization to charge her account gives the FTC “ample 

authority to pursue entities charging accounts without proper authorization.122 

As discussed above, the Commission is proposing to amend the TSR’s recordkeeping 

provisions to explicitly require telemarketers and sellers to retain complete and accurate records 

of consumers’ “express informed consent” to be charged for a particular transaction.123 In the 

event a transaction includes a negative option, including “free-to-pay” or “fee-to-pay” 

conversion offers, a complete record of “express informed consent” must include the purpose 

119 MPA, No. 00116, at 3; see also DMA, No. 00103 at 6-7; ARDA, No. 00100, at 7. PACE, No. 00107, at 4. 

120 DMA, No. 00103, at 6-7. 

121 Id. at 3. 

122 PACE, No. 00107, at 4. 

123 See supra VI.A. 

23 
 

 

 

 

 

 

 

 

 

for which consent is requested, the account that will be charged, the date a consumer provided 

consent, and the consumer’s consent to be charged using the identified account for the relevant 

good or service. The proposed recordkeeping requirements also require sellers and telemarketers 

to retain records that demonstrate they have comported with Section 310.4(a)(7)’s requirements 

regarding the use of preacquired account information. The Commission believes that the new 

recordkeeping requirements will provide additional protections to consumers by ensuring that 

sellers and telemarketers obtain actual “express informed consent” from consumers to be charged 

for a transaction with a negative option feature.124 The Commission also believes that these 

requirements will be more effective than requiring third-party telemarketers to obtain the full 

account information from consumers as an indication of consent because consumers providing 

full account information may not understand that they are being sold a transaction with a 

negative option feature. 

The Commission is also interested in exploring the commenters’ suggestions that sellers 

or telemarketers provide consumers notice and the opportunity to cancel negative option 

transactions whenever they are billed.125 Requiring sellers or telemarketers to provide 

consumers with reminders of negative option programs and simple cancelation mechanisms may 

be an effective way of reducing consumer harm without overburdening industry. However, the 

124 See NPRM Section III.B.4. NAAG also reports that telemarketers are circumventing the heightened “express 

informed consent” requirements for “free-to-pay” conversion offers by charging a “nominal upfront fee.” No. 

00117, at 5. (“By offering their products and services for an initial term at a nominal upfront price . . . telemarketers 

relying on preacquired account information circumvent the TSR’s requirement of obtaining the last four (4) digits of 

the consumer’s account number and the equally important requirement of maintaining an audio recording of the 

entire transaction.”). The proposed recordkeeping requirements that clarify the records necessary to prove that a 

consumer has consented to a transaction should eliminate any incentive to circumvent the express informed consent 

requirement. 

125 AARP suggests that companies “send a reminder to the consumer and receive confirmation the consumer still 

wants to purchase the service or product.” AARP, No. 00097, at 4. cf. NAAG, No. 00117, at 11 (urging that the 

TSR require a telemarketer to send a confirmation to the consumer at the time of enrollment in a negative option that 

clearly and conspicuously sets forth the terms of the negative option plan). 

24 
 

 

 

 

 

 

Commission is aware of potential logistical hurdles to providing notification and cancelation 

with telemarketing transactions. For example, do telemarketers typically obtain consumers’ 

email addresses, and if so, would email be an effective method to send a notification? Should 

telemarketers provide cancelation mechanisms by phone or would online mechanisms be more 

convenient for consumers? As outlined below in Section V, the Commission is seeking 

comment on whether the TSR should require negative-option sellers to provide simple notice and 

cancelation mechanisms, and how these mechanisms should be provided. 

Beyond the changes that the Commission is proposing to the recordkeeping provisions, 

and the Commission’s request for information about notice and cancelation mechanisms, the 

Commission does not agree with the additional rule proposals made by commenters. 

Commenters proposed the rule: (1) require sellers and telemarketers to obtain a full account 

number from consumers every time they are charged; or (2) defer payment authorization until the 

end of the trial period. The Commission does not believe that these proposals would provide 

protections against deceptive negative option offers that outweigh the likely increased consumer 

frustration due to longer, complicated transactions and additional burdens on industry. And with 

respect to NAAG’s suggestion that Section 310.4(a)(7) should be extended to all free-to-pay 

conversion transactions regardless of whether preacquired account information is involved, the 

Commission does not believe such an amendment is necessary. Section 310.4(a)(7) already 

requires telemarketers or sellers to obtain a consumer’s express informed consent to be charged 

for the good, service, or charitable contribution in all telemarketing transactions, including those 

that do not involve the use of preacquired account information. The Commission nonetheless 

reiterates that Section 310.4(a)(7)’s requirement of obtaining a consumer’s express informed 

consent before billing a consumer applies to all telemarketing transactions, including those in 

which the consumer is billed for a good or service at a later date after the “free trial” is over. 

25 
 

 

 

 

 

 

 

 

D. Is There A Need To Apply Outbound Call Protections To Inbound Calls? 

The TSR generally exempts inbound calls responding to media advertising, with some 

specific exceptions.

126 The Regulatory Review asked if there is a need to amend the exemption 

in view of the proliferation of infomercials in the marketplace, including for negative option 

offers. 

Consumers and their advocates regard the general media exemption as a “loophole” in 

the TSR, advocating that the TSR should apply to all telemarketing calls regardless of which 

party initiated the call.

127 NAAG cites the Commission’s 2013 Consumer Fraud Survey as 

support because it reports that more than half of frauds are marketed through means other than 

telemarketing.128 Consumer advocates specifically suggest that the TSR should apply equally to 

inbound and outbound telemarketing for negative option offers. NCLC asserts that the TSR 

requirements for the use of preacquired account information in negative option offers should 

apply to all inbound calls responding to general media and direct mail ads because “the potential 

risks are the same” as offers in outbound telemarketing.129 NAAG agrees, and advocates an 

amendment to extend the TSR’s outbound call material terms disclosure requirements for 

negative option offers, as well as the ban on misrepresenting any aspect of such offers, to all 

inbound calls induced by direct mail or general media ads.130 

Industry advocates uniformly oppose adding any limitations to either the general media 

or direct mail exemptions. PACE and ERA agree that all material terms and conditions of 

126 16 CFR 310.6(b)(5). 

127 Kapecki, No. 00084; Rosenow, No. 00067; Beverly Anne, No. 00066; Tripp, No. 00063; and Steel, No. 00070. 

128 NAAG, No. 00117, at 8 (stating that the 2013 survey reported 59.3% of fraud incidents were the result of 

fraudulent offers through general media advertising). 

129 NCLC, No. 00110, at 7. 

130 NAAG, No. 00117, at 10. 

26 
 

 

 

 

 

 

 

 

 

 

 

negative option offers should be disclosed prior to any sale, but argue against amending the TSR 

to require that the disclosures be made during an inbound call.131 DMA explains that required 

oral disclosures during inbound calls would be duplicative in many cases of disclosures in the 

marketing materials that induced the call.132 BAA adds that unlike answering outbound 

telemarketing calls, consumers placing inbound calls have the “luxury, time and discretion to 

decide whether to respond” to general media or direct mail ads, and can obtain “the information 

they need to make an informed purchasing decision” in advance of or during the call.133 

MPA argues that applying the TSR’s disclosure requirements to inbound telemarketing 

for newspaper subscriptions, particularly for existing customers, would add time and expense for 

industry to comply without providing additional consumer protections when the general media 

advertisement includes all material terms of the offer.134 ERA similarly argues against a 

disclosure requirement without evidence of widespread abuse.135 ERA joins PACE in 

contending that the Commission can always rely on its authority under Section 5 of the FTC Act 

to bring cases against sellers that fail to disclose material terms in their advertising or during an 

inbound call.136 

The general media and direct mail exemptions for inbound calls contain additional 

limitations that narrow the scope of the exemptions. For example, negative option sales in 

131 PACE, No. 00107, at 6; ERA, No. 00095, at 3. 

132 DMA, No. 00103, at 7. 

133 BAA, No. 00115, at 3. 

134 MPA, No. 00116, at 4. 

135 ERA, No. 00095, at 3. ERA disputes NAAG’s contention that the FTC’s Third Consumer Fraud Survey provides 

evidence of pervasive fraud in general media advertising. Compare ERA, No. 00095, at 5 with NAAG, No. 00117, 

at 8. 

136 ERA, No. 00095, at 5. ERA and PACE made these comments before the Supreme Court held that Section 13(b) 

of the FTC Act does not authorize courts to award equitable monetary relief. See AMG Capital Management, LLC 

v. FTC, 141 S.Ct. 1341 (2021). 

27 
 

 

 

 

inbound telemarketing that are upsells after an initial purchase are expressly excluded from both 

the general media and direct mail exemptions.137 The TSR’s outbound call provisions therefore 

are equally applicable to inbound call upsells. 

Whether and to what extent there may be a problem with inbound telemarketing calls 

offering a negative option is unclear from the regulatory review record. It therefore is difficult to 

determine at this time whether there is a need for an amendment that would apply the negative 

option disclosure requirements and prohibitions or other protections to such calls. The 

Commission is mindful, however, of the rising trend of certain types of goods or services that are 

marketed through general media or direct mail and induce inbound telemarketing sales that often 

include a negative option feature. In particular, the Commission’s law enforcement experience 

indicates that scams offering computer technical support services (or “tech support”) have been a 

rising trend that particularly impacts older adults and are marketed through inbound 

telemarketing.

138 Many of these tech support services also include negative options. As a result, 

as outlined below in Section V, the Commission is seeking comment on whether the TSR should 

apply to inbound telemarketing of tech support services.

139 The Commission also seeks comment 

in Section V.E on the number of sellers or telemarketers who deceptively sell products or 

services with negative options, other than tech support services, solely through inbound 

telemarketing. 

137 16 CFR 310.6(b)(5)(iii) and (b)(6)(iii). 

138 See FTC Data Spotlight, Older Adults Hardest Hit by Tech Support Scams (“FTC Data Spotlight”) (Mar. 7, 2019) 

(tech support scams particularly impact older adults), available at https://www.ftc.gov/news-events/blogs/dataspotlight/2019/03/older-adults-hardest-hit-tech-support-scams (last visited Jan. 31, 2022); FTC Report to Congress, 

Protecting Older Consumers, 2019-2020 (“2020 Protecting Older Consumers Report”) at 6 (Oct. 18, 2020), 

available at https://www.ftc.gov/system/files/documents/reports/protecting-older-consumers-2019-2020-reportfederal-trade-commission/p144400_protecting_older_adults_report_2020.pdf (last visited Jan. 31, 2022). 

139 See infra Section V.A. 

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E. Should the Rule Continue to Exempt Business-to-Business Telemarketing? 

Currently the TSR exempts telemarketing calls to “any business to induce the purchase of 

goods or services or a charitable contribution by the business,” (i.e. “business-to-business 

exemption” or “B2B exemption”).140 The Commission sought comment on how sales to a 

“home-based business should be treated” under the Rule.141 One comment suggests that “home 

business[es] should be treated more like [] consumer[s]...out of deference to the overall home 

environment....The same phone often handles both personal and business calls in a home 

business or in a home occupied by an independent consultant or freelancer.”142 

PACE, however, argues that the current exemption “properly strikes a balance between 

consumer protection and overregulation and should be left intact.”143 PACE also asserts that 

allowing the exemption to continue “represents sound public policy and equitableness because it 

is impossible for callers to know whether the phone provider classifies the number as a 

residential or business number.”144 

Although the Commission did not receive many comments on this question, the 

Commission’s law enforcement experience with deceptive business-to-business telemarketing 

along with changing market forces influencing where consumers perform their jobs and the 

nature of those jobs raise the question whether the TSR should continue to exempt such calls. 

Thus, for the reasons outlined below in Section V, the Commission is seeking additional 

comment on whether the TSR should continue to exempt business-to-business telemarketing.145 

140 16 CFR 310.6(b)(7). This exemption, however, does not apply to the telemarketing of nondurable office or 

cleaning supplies. Id. 

141 79 FR at 46738. 

142 West Italian, No. 00113, at 3. 

143 PACE, No. 00107, at 6. 

144 Id. 

145 See infra Section V.B. 

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F. Other Commenter Proposals 

A number of comments have recommended a variety of other amendments to the TSR. 

These comments fall into the following categories: (1) revision of prior determinations or 

interpretations that the Commission is not inclined to reconsider;146 (2) amendments that the 

Commission does not believe are necessary;

147 (3) amendments that are outside of the agency’s 

jurisdiction;

148 and (4) amendments that lack data to support the suggested change.149 As such, 

the Commission is not inclined to further consider or implement these requested amendments. 

V. Request for Comments 

In determining the advisability of exempting certain calls from complying with the TSR 

the Commission considers the following factors: (1) did Congress intend the TSR to cover such 

calls; (2) is the conduct or business in question regulated extensively by federal or state law; (3) 

in the Commission’s law enforcement experience, does the conduct or business lend itself to the 

type of deceptive acts and practices that the TSR is intended to address; and (4) would it be 

unduly burdensome to require businesses to comply with the TSR compared to the likelihood 

146 Infocision, No. 00108, at 2 (amendment to exempt for-profit telemarketers who offer goods or services on behalf 

of non-profits (i.e., ticket sales on behalf of a ballet company)); NAA, No. 00099, at 1-6 (amendment of the 

“established business relationship” exception to allow live calls to introduce digital offerings to former newspaper 

subscribers with numbers on the Do Not Call Registry); ARDA, No. 00100, at 2-4 (e.g., amendments to the 

prohibition to send robocalls and relaxing the restrictions on abandoned calls to existing customers); NCLC, No. 

00110, at 14 (amendment to change the assisting and facilitating knowledge standard from “knows or consciously 

avoids knowing” to “knows or has reason to know”); NobelBiz, No. 00104, at 5 (amendment stating that the 

transmission of an erroneous name or failure to transmit a name pursuant to the TSR’s caller ID provision is not a 

violation unless there was intent to deceive the call recipient). 

147 NAA, No. 00099, at 7-8 (amendment to require monthly purging of disconnected and reassigned numbers on the 

Registry which is unnecessary since the agency already performs such purging – see FTC, Do-Not-Call 

Improvement Act of 2007, Report To Congress: Regarding the Accuracy of the Do Not Call Registry (Oct. 2008), 

available at https://www.ftc.gov/sites/default/files/documents/reports/do-not-call-improvement-act-2007-reportcongress-regarding-accuracy-do-not-call-registry/p034305dncreport.pdf); Air Rehab. Corp., No. 00047 (amendment 

to exempt calls to arrange face-to-face sales meetings which are already exempt under Section 310.6(b)(3)); Whi, 

No. 00017 (amendment to permit private lawsuits, which are already permitted under the Telemarketing Act, 15 

U.S.C. 6104, and the Telephone Consumer Protection Act, 47 USC 227(b)(3)). 

148 See, e.g., ARDA, No. 00100, at 2, 4-6 (amendments relating to issues under the FCC’s jurisdiction, including 

autodialers, cell phones, and SMS texts). 

149 See, e.g., CRL, No. 00093 at 4, 10 (acknowledging lack of data); NCLC, No. 001100, at 18-19. 

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that sellers or telemarketers engaged in fraud will use the existing exemption to circumvent the 

TSR’s coverage.150 

To assist the Commission in evaluating these factors, the Commission seeks comments 

on whether the TSR should: (1) apply to inbound telemarketing of tech support services; 

(2) apply to telemarketing to businesses; and (3) require telemarketers to provide consumers with 

notice that they are about to be billed for a negative option product or service and provide 

consumers with a simple cancellation mechanism. The Commission also seeks comments on the 

benefits and estimated burdens that these potential rule changes would 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 harm to consumers caused by deceptive 

inbound telemarketing of tech support services, deceptive telemarketing to businesses, or the 

failure to provide consumers with notice and simple cancellation mechanism in negative option 

telemarketing. Commenters should also provide any empirical data on the costs to sellers or 

telemarketers that would be caused by applying the TSR’s requirements on inbound 

telemarketing of tech support services, telemarketing to businesses, or requiring notification and 

a simple cancellation mechanism for negative option products or services. The questions are 

designed to assist the public and should not be construed as a limitation on the issues about 

which a public comment may be submitted. 

A. Inbound Telemarketing of Computer Technology Support Services 

Consumer complaints about tech support scams have increased dramatically over the last 

few years, ranging from approximately 40,000 complaints in 2017 to approximately 100,000 

150 Original TSR, 60 FR at 43859. 

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complaints in 2020.151 In 2018, consumers reported losing more than $55 million to these 

scams, with an average individual loss of approximately $400, and an average individual loss for 

consumers over the age of 60 of approximately $500.152 Indeed, tech support scams 

disproportionately harm older consumers, with consumers age 60 and over being six times more 

likely to report a financial loss to tech support scams compared to younger consumers.153 From 

2015 to 2018, older adults filed more reports on tech support scams than on any other fraud 

category.154 

The scam typically begins with an outbound telemarketing call, a pop-up message on a 

consumer’s computer, or an advertisement that induces inbound telemarketing calls.155 The 

scammers typically pretend to represent well-known companies such as Microsoft, McAfee, or 

Symantec, and in their outbound calls, they inform consumers that they have detected an issue on 

151 See FTC Consumer Sentinel Network Databook 2020, at 86, (Feb. 2021), available at 

https://www.ftc.gov/system/files/documents/reports/consumer-sentinel-network-data-book2020/csn_annual_data_book_2020.pdf (last visited Jan. 31, 2022); FTC Consumer Sentinel Network Databook 

2017, at 93, (list visited Jan. 31, 2022), available at https://www.ftc.gov/system/files/documents/reports/consumersentinel-network-data-book-2017/consumer_sentinel_data_book_2017.pdf (last visited Jan. 31, 2022). 

152 See, FTC Data Spotlight, available at https://www.ftc.gov/news-events/blogs/data-spotlight/2019/03/olderadults-hardest-hit-tech-support-scams (last visited Jan. 31, 2022). 

153 See 2020 Protecting Older Consumers Report, at 6, available at 

https://www.ftc.gov/system/files/documents/reports/protecting-older-consumers-2019-2020-report-federal-tradecommission/p144400_protecting_older_adults_report_2020.pdf (last visited Jan. 31, 2022). 

154 FTC Data Spotlight, available at https://www.ftc.gov/news-events/blogs/data-spotlight/2019/03/older-adultshardest-hit-tech-support-scams (last visited Jan. 31, 2022); see also FTC Report to Congress, Protecting Older 

Consumers, 2018-2019, at 5 (Oct. 18, 2019), available at https://www.ftc.gov/reports/protecting-older-consumers2018-2019-report-federal-trade-commission (last visited Jan. 31, 2022). In 2019, reports of online shopping frauds 

became the top fraud complaint for older consumers, with tech support scams dropping to second place. 2020 

Protecting Older Consumers Report, at 7, available at 

https://www.ftc.gov/system/files/documents/reports/protecting-older-consumers-2019-2020-report-federal-tradecommission/p144400_protecting_older_adults_report_2020.pdf (last visited Jan. 31, 2022). Older consumers, 

however, are less likely to report losing money to online shopping frauds, compared to younger consumers. Id. 

155 See, e.g., Prepared Statement of the Federal Trade Commission Before the United States Senate Special 

Committee on Aging on Combatting Technical Support Scams (“Tech Support Testimony”), at 3-5 (Oct. 21, 2015), 

available at 

https://www.ftc.gov/system/files/documents/public_statements/826561/151021techsupporttestimony.pdf (last 

visited Jan. 31, 2022). 

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their computers.156 Alternatively, scammers use deceptive computer pop-up messages that tell 

consumers to run a scan resulting in numerous “error” messages.

157 Or, they place search engine 

advertisements that are displayed when a consumer searches online for either the phone number 

of her computer company or for information about an issue she is having with her computer.158 

The pop-up messages and search engine advertisements typically direct consumers to call a 

phone number to fix the purported problems. Once consumers connect with telemarketers, 

whether through outbound telemarketing or inbound, the telemarketers convince consumers that 

there are a variety of problems with their computers and persuade consumers to purchase 

subscription tech support services159 or software that they do not need.160 

The Commission has brought a multitude of cases against sellers and telemarketers 

perpetrating tech support frauds on consumers.161 In many of those cases, telemarketers have 

156 Id. 

157 See, e.g., Tech Support Testimony, at 3-5, available at 

https://www.ftc.gov/system/files/documents/public_statements/826561/151021techsupporttestimony.pdf (last 

visited Jan. 31, 2022). 

158 See, e.g., FTC v. Click4Support, LLC, et. al., No. 15-cv-05777-SD, at 9-10 (E.D. Pa. Oct. 26, 2015), available at 

https://www.ftc.gov/system/files/documents/cases/151113click4supportcmpt.pdf (last visited Jan. 31, 2022). 

159 See, e.g., FTC v. Vylah Tec LLC, et. al., No. 17-cv-228-FtM-99MRM (M.D. Fa. May 17, 2017), available at 

https://www.ftc.gov/system/files/documents/cases/162_3253_vylah_tec_llc_complant.pdf (last visited Jan. 31, 

2022). 

160 Id. 

161 See, e.g., FTC v. RevenueWire, Inc., No. 1:20-cv-1032 (D.D.C. April 21, 2020) (the companies to which 

RevenueWire provided payment processing services used pop-up dialog boxes that claimed to have detected 

computer infections and directed consumers to call a 1-800 number) available at 

https://www.ftc.gov/system/files/documents/cases/revcomp3.pdf (last visited Jan. 31, 2022); FTC v. Boost Software, 

Inc., No. 14-cv-81397 (S.D. Fla. Nov. 10, 2014) (same as RevenueWire) available at 

https://www.ftc.gov/system/files/documents/cases/141119vastboostcmpt.pdf (last visited Jan. 31, 2022); FTC v. 

PCCare247, Inc., 12-cv-7189 (S.D.N.Y. Oct. 3, 2012) (PCCare used paid advertisements that made it appear 

PCCare was affiliated with established computer companies in order to trick consumers to call PCCare’s 

telemarketers) available at https://www.ftc.gov/sites/default/files/documents/cases/2012/10/121003pccarecmpt.pdf 

(last visited Jan. 31, 2022). See also, Press Release, FTC and Federal, State and International Partners Announce 

Major Crackdown on Tech Support Scams (May 12, 2017) (announcing 16 new cases as part of tech support sweep) 

available at https://www.ftc.gov/news-events/press-releases/2017/05/ftc-federal-state-international-partnersannounce-major-crackdown (last visited Jan. 31, 2022) and “Operation Tech Trap Law Enforcement Actions” (May 

2017) (listing cases brought as part of tech support sweep) available at 

https://www.ftc.gov/system/files/attachments/press-releases/ftc-federal-state-international-partners-announce-majorcrackdown-tech-support-scams/operation_tech_trap_chart_of_actions.pdf (last visited Jan. 31, 2022). 

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induced inbound telemarketing by placing advertisements via search engine ads, thus falling 

outside of the TSR’s purview unless the telemarketer also upsells the consumer on a good or 

service.

162 Given this rising threat and the harm it causes to consumers, particularly those aged 

60 and older, the Commission believes the time is ripe to consider repealing the TSR exemption 

for inbound telemarketing of tech support services. 

In considering this proposal, in addition to the questions listed below, the Commission 

seeks comment on whether: (1) it should add tech support services to the list of goods or services 

for which the inbound telemarketing exemptions do not apply;163 (2) it should repeal the 

exemption only for general media advertisements (e.g., search engine ads) that induce inbound 

telemarketing of tech support services but retain the exemption for direct mail solicitation under 

Section 310.6(b)(6); or (3) it should repeal the exemption in its entirety but carve out an 

exemption for sellers who manufacture the computer at issue, and with whom the consumer has 

an existing business relationship (i.e., if a consumer purchased a computer from Microsoft, the 

TSR would not apply to any inbound telemarketing calls induced by or on behalf of Microsoft to 

that consumer). The Commission also seeks comment on whether tech support service scams 

impact other devices such as mobile phones or tablets. 

B. Questions for Inbound Telemarketing of Tech Support Services 

1. Should the TSR apply to inbound telemarketing of tech support services? If not, why 

not? If yes, why? What harm is caused by such calls? What benefits do such calls 

confer? What existing federal or state laws apply to such calls, and are the existing laws 

sufficient or insufficient to address the identified harm? 

162 The TSR generally exempts inbound telemarketing calls induced by general media advertisements. 16 CFR 

310.6(b)(5) & (b)(6). As noted in Section IV.D, supra, the TSR’s coverage extends to all upsells, including those in 

inbound telemarketing. 16 CFR 310.6(b)(5)(iii) & (b)(6)(iii). 

163 See 16 CFR 310.6(b)(5) & (b)(6). 

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2. What kind of tech support services do sellers offer to consumers? What kinds of 

products do the tech support services cover? What is the nature of the services offered? 

Do the services require consumers to sign up for a subscription plan? How many 

services require a subscription plan? 

3. How many sellers or telemarketers sell tech support services through inbound 

telemarketing without using unfair or deceptive acts or practices? How many sellers 

offer those services only through inbound telemarketing and do not employ any outbound 

telemarketing? How do consumers learn about these sellers? Do they advertise through 

general media advertisements or direct mail solicitations? What kind of advertisements? 

How would requiring such sellers to comply with the TSR affect their business? How 

would it affect consumers? 

4. How many inbound telemarketing calls for tech support services do sellers or 

telemarketers receive on average per year, per month, or per day? How many of those 

calls or what percentage of those calls result in a sale? 

5. Do sellers or telemarketers that sell tech support services through inbound telemarketing 

sell those services to consumers, businesses, or both? If sellers or telemarketers are 

engaged in inbound telemarketing of tech support services to consumers, how many such 

calls do sellers or telemarketers receive on average per year, per month, or per day? How 

many of those calls or what percentage of those calls result in a sale? If sellers or 

telemarketers are engaged in inbound telemarketing of tech support services to 

businesses, how many such calls do sellers or telemarketers receive on average per year, 

per month, or per day? How many of those calls or what percentage of those calls result 

in a sale? 

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6. How many inbound tech support telemarketing calls were induced by general media 

advertising such as search engine advertisements? How many of those calls or what 

percentage of calls induced by general media resulted in a sale? 

7. How many inbound tech support telemarketing calls were induced by a direct mail 

solicitation? How many of those calls or what percentage of calls induced by direct mail 

solicitations resulted in a sale? 

8. Do entities that manufacture and sell computers engage in inbound telemarketing of tech 

support services to businesses or consumers? If so, do such entities use unfair or 

deceptive acts or practices to sell their tech support services? If such entities engage in 

inbound telemarketing of tech support services to consumers, how many calls do such 

entities receive from consumers on average per year, per month, or per day? How many 

calls result in a sale? If such entities engage in inbound telemarketing of tech support 

services to businesses, how many calls do such entities receive from businesses on 

average per year, per month, or per day? How many calls result in a sale? 

9. Should the TSR apply to inbound telemarketing of tech support services induced by 

advertisements through any medium? If yes, why, and what is the harm caused by such 

solicitations? If not, why not, and should the TSR apply to inbound telemarketing of tech 

support services induced by particular types of advertisements? 

10. Should the TSR apply to inbound telemarketing of tech support services induced by 

direct mail solicitation? If yes, why and what harm is caused by such solicitations? If 

not, why not? 

11. Should the TSR continue to exempt inbound telemarketing of tech support services but 

apply the TSR’s provisions regarding the use of prerecorded messages, including those 

that use soundboard technology? If yes, why and what is the harm caused by the use of 

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prerecorded messages in inbound telemarketing of tech support services? If not, why 

not? 

12. If the Commission repeals the exemptions for inbound telemarketing of tech support 

services, should it create a carve out? What kind of carve out and why? Should the 

Commission carve out an exemption for entities who manufacture the computer at issue 

and have an existing business relationship with the consumer? Why or why not? 

13. How should the Commission define “tech support services”? Should the definition apply 

to any type of technology assistance, including for any device (e.g., mobile phones and 

tablets)? If not, why not? If yes, why and what is the harm caused in connection with 

those technology assistance services? Have there been instances of fraud occurring in 

connection with those technology assistance services? How pervasive is this type of 

fraud? 

14. If the Commission considers employing a broad definition of tech support so that it either 

encompasses multiple types of services, or any form of technology assistance, should the 

Commission consider carve outs for a particular type of technology assistance? If yes, 

what carve out should the Commission consider and why? 

15. If the Commission repeals the exemptions for inbound telemarketing of tech support 

services, what burden would be imposed on industry? How do you quantify that burden? 

How can the Commission repeal the exemption for inbound telemarketing of tech support 

services but lessen that burden on industry? 

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C. Business-to-Business Telemarketing Calls 

1. Regulatory History of Business-to-Business Telemarketing Exemption 

The Commission has considered whether to narrow or clarify the business-to-business 

(“B2B”) exemption on several occasions since its promulgation in 1995.164 First, in 2003 the 

Commission considered whether to include a carve out from the exemption for the sale of 

internet or web services165 to prevent small businesses from being defrauded as they navigated 

the then-new world of internet advertising. The Commission defined internet or web services as 

services that enable businesses to access the internet or the world wide web.

166 The Commission 

noted that reports of frauds from small businesses about telemarketers promoting services that 

could help them increase their internet presence had risen dramatically with the rapid adoption of 

internet use from 1997 to 2002.167 

Consumer advocates and law enforcement agencies argued that the TSR should not 

exempt telemarketing of internet or web services to businesses based on extensive law 

enforcement efforts to combat the proliferation of fraudulent telemarketing of those services.168 

164 See Original TSR, 60 FR at 43861. 

165 2003 TSR Amendments, 68 FR at 4662. The Commission also considered whether to carve out solicitations for 

charitable contributions from the TSR’s B2B exemption. On balance, the Commission decided to rely on its Section 

5 authority to address fraudulent fundraising rather than impose additional regulatory burdens on legitimate nonprofit organizations that already operate on very narrow margins. Id. at 4663. 

166 The Commission proposed two definitions in its proposed rulemaking – Internet Services and Web Services. 

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 the world wide web. Id. 

167 Id. at 4531; see also Press Release, FTC Cracks Down on Small Business Scams (June 17, 1999) (announcing 

sweep of cases against fraudulent telemarketers who scammed small businesses by offering a negative option 

website design and hosting service to help small businesses create an internet presence), available at 

https://www.ftc.gov/news-events/press-releases/1999/06/ftc-cracks-down-small-business-scams (last visited Jan. 31, 

2022). 

168 2003 TSR Amendments, 68 FR at 4662. 

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Industry proponents argued that the record did not support applying the TSR to those services in 

such a sweeping fashion and that overregulation would result in harming small businesses 

because “it would increase their costs and hamper their use of Web-based advertising such as 

online Yellow Pages.”169 The Commission decided that imposing regulations without further 

evidence that its law enforcement tools were insufficient might negatively impact small 

businesses by increasing their cost and impeding their use of internet advertising.170 The 

Commission stated it needed 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.”171 

The Commission revisited the B2B exemption in 2013 when it issued a Notice of 

Proposed Rulemaking (“2013 NPRM”) seeking comment on whether to amend the exemption to 

explicitly limit it to telemarketing calls selling a good or service to that business or seeking a 

charitable contribution from that business, rather than personal purchases or charitable 

contributions of employees of the business.172 The Commission noted in its 2013 NPRM that it 

had allowed business telephone numbers to be listed on the FTC’s Do Not Call (“DNC”) 

Registry “because, among other reasons, telemarketers who seek to circumvent the Registry have 

solicited employees at their place of business to buy goods or services such as dietary products, 

auto warranties, and credit assistance.”173 In implementing the amendment in 2015, the 

Commission reiterated that the amendment is “simply a clarification of the scope of the existing 

169 Id. at 4663. 

170 Id. 

171 Id. 

172 Notice of Proposed Rule Making (“2013 TSR NPRM”), 78 FR 41200, 41219 (July 9, 2013). 

173 Id. at 41219. 

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exemption, not a change in its substance” and that the “clarification should further deter 

telemarketers from attempting to circumvent the Registry.”174 

2. Law Enforcement Experience in Deceptive Business-to-Business 

Telemarketing 

Since the Commission last considered, and declined, to substantively amend the B2B 

exemption to exclude services providing access to the internet, the marketplace has substantially 

evolved. The digital marketing landscape has become increasingly complex and rife with 

opportunities for sellers or telemarketers to defraud small businesses by selling them services to 

help them advertise their businesses online. Indeed, the expansion of the different ways to 

advertise online has been accompanied by numerous types of deceptive telemarketing schemes 

aimed at small businesses, including schemes that have purportedly sold business directory 

listing services, the very same services that industry proponents claimed small businesses would 

not be able to access if the Commission implemented its proposed amendments.175 The 

Commission has brought many cases against fraudulent telemarketers selling services that 

purportedly assist small businesses to advertise online, including business directory listings,

176 

174 Id. 

175 See supra note 169. 

176 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 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), 

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web hosting or design scams,177 and search engine optimization (“SEO”) services.178 The 

Commission has also seen deceptive telemarketing schemes that target businesses in other areas 

that are not related to online advertising services.179 In fact, the Commission has filed cases 

against other telemarketing frauds targeting small businesses such as market-specific advertising 

opportunities180 and government imposter scams.

181 Given the Commission’s law enforcement 

experience in this area showing the prevalence of fraud in digital marketing services targeting 

businesses, and the maturation of this industry, the Commission believes it is time to reconsider 

whether the TSR should continue to exempt B2B telemarketing at all, or at a minimum, B2B 

telemarketing of digital marketing services or imposter scams that harm businesses.

182 The 

Commission also believes there is sufficient evidence to apply the TSR’s prohibitions against 

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). 

177 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). 

178 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). 

179 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/globalassets/local-bbbs/council113/media/small-business-research/bbb_smallbizscamsreport-final-06-18.pdf (last visited Jan. 31, 2022). 

180 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). 

181 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). 

182 See supra note 186; see also, FTC Blog, Protecting Small Business from Imposters (Jan. 9 2020), available at 

https://www.consumer.ftc.gov/blog/2020/01/protecting-small-business-imposters (last visited Jan. 31, 2022). 

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making material misrepresentations or false or misleading statements in B2B telemarketing and 

seeks comment on this proposal in the NPRM. 

3. Market Changes in People’s Work Experience 

In addition to the Commission’s law enforcement experience, the Commission also notes 

that since it last considered making substantive changes to the exemption in 2003, technological 

advancements, along with current events, have drastically affected where people typically 

perform their jobs as well as the types of jobs they perform. Specifically, technological changes 

have provided people more workplace flexibilities,

183 resulting in greater numbers of people 

working from home on either a part-time or full-time basis.

184 But more significantly, the 

COVID-19 pandemic has resulted in an unprecedented number of people working from home 

since March 2020.

185 Although it is difficult to predict whether people will continue to work 

from home in such large numbers in the future, industry analysts currently believe that 

183 See Rachel M. Krantz-Kent, Monthly Labor Review: Where did Workers Perform Their Jobs in the Early 21st 

Century?, U.S. Bureau of Labor and Statistics (July 2019), available at 

https://www.bls.gov/opub/mlr/2019/article/where-did-workers-perform-their-jobs.htm (last visited Jan. 31, 2022) 

(noting that “advances in information and communication technology allow people to reach their colleagues and 

clients by phone, email, or text from nearly anywhere, at all hours of the day” and that the “development and 

expansion of secure computer networks, cloud computing, and wireless connections provide additional flexibility in 

where and when work can be done”). 

184 A 2017 survey estimated that approximately 43% of Americans spend some time working from home, with 

increasing numbers working remotely four to five days a week. Niraj Chokshi, Out of the Office: More People Are 

Working Remotely, Survey Finds, N.Y. Times, Feb. 15, 2017, available at 

https://www.nytimes.com/2017/02/15/us/remote-workers-work-from-home.html (last visited Jan. 31, 2022). See 

also U.S. Bureau of Labor Statistics (“BLS”), Ability to Work From Home: Evidence From Two Surveys and 

Implications for the Labor Market in the COVID-19 Pandemic, at n.1 (June 2020), available at 

https://www.bls.gov/opub/mlr/2020/article/ability-to-work-from-home.htm#_edn1 (last visited Jan. 31, 2022) (citing 

to a survey conducted by Global Workforce Analytics that reported the number of workers who worked at home at 

least half the time increased by 115% from 2005 to 2017); see also BLS, Job Flexibilities and Work Schedules – 

2017-2018: Data from the American Time Use Survey (Sept. 19, 2019), available at 

https://www.bls.gov/news.release/flex2.nr0.htm (last visited Jan. 31, 2022) (reporting that approximately 25% of 

wage and salary workers worked at home occasionally); BLS, Work at Home Summary in 2004 (Sept. 25, 2005), 

available at https://www.bls.gov/news.release/homey.nr0.htm (last visited Jan. 31, 2022) (reporting that 

approximately 15% of workers reported working from home at least once per week). 

185 The Federal Reserve, Update on the Economic Well-Being of U.S. Households: July 2020 Results, at 4 (Sept. 22, 

2020), available at https://www.federalreserve.gov/publications/files/2019-report-economic-well-being-ushouseholds-update-202009.pdf (last visited Jan. 31, 2022) (reporting that approximately 41% and 31% of workers 

were working from home when the surveys were conducted in April 2020 and July 2020, respectively.). 

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businesses will provide greater work flexibilities to their employees post-pandemic.186 The 

Commission’s DNC Registry is meant, in part, to protect consumers’ privacy from an abusive 

pattern of calls.

187 With more people working from home, the likelihood that B2B telemarketing 

will impinge on the privacy of a consumer’s home is escalating. This raises the question whether 

the DNC Registry will still be able to effectively protect consumers’ privacy if the TSR is not 

extended to cover B2B telemarketing. 

Additionally, the rise of the gig economy and the economic impact of the pandemic has 

resulted in more people utilizing alternative work arrangements to supplement their income, or as 

a means of full-time employment.

188 The gig economy refers to alternative work arrangements 

including independent contractors, online platform workers, contract firm work, on-call workers, 

186 See Press Release, Gartner, Inc., Gartner HR Survey Reveals 41% of Employees Likely to Work Remotely at 

Least Some of the Time Post Coronavirus Pandemic (April 14, 2020), available at 

https://www.gartner.com/en/newsroom/press-releases/2020-04-14-gartner-hr-survey-reveals-41--of-employeeslikely-to- (last visited Jan. 31, 2022); See also, McKinsey & Company, The Future of Telework after Covid-19 (Feb. 

18, 2021), available at https://www.mckinsey.com/featured-insights/future-of-work/the-future-of-work-after-covid19 (last visited Jan. 31, 2022) (reporting that approximately 4-5 times more telework is possible post Covid-19 in 

advanced economies and in jobs in which remote work can be done without loss of productivity and that a survey of 

executives revealed they planned to reduce their office footprint by approximately 30%); PwC, US Remote Work 

Survey (Jan. 12, 2021), available at https://www.pwc.com/us/en/library/covid-19/us-remote-worksurvey.html#content-free-1-24f5 (last visited Jan. 31, 2022) (reporting a hybrid workplace where employees rotate 

in and out of the offices configured for shared spaces is a likely outcome post Covid-19). 

187 2003 TSR Amendments, 68 FR at 4631. 

188 Shane McFeely and Ryan Pendell, The Gig Economy and Alternative Work Arrangements, at 6 (Aug. 18, 2018), 

available at https://www.gallup.com/workplace/240929/workplace-leaders-learn-real-gig-economy.aspx (last visited 

Jan. 31, 2022) (reporting approximately 36% of workers are involved in the gig economy); see also The Federal 

Reserve, Report on the Economic Well-Being of U.S. Households in 2019, Featuring Supplemental Data from April 

2020, at 18 (May 2020), available at https://www.federalreserve.gov/publications/files/2019-report-economic-wellbeing-us-households-202005.pdf (last visited Jan. 31, 2022) (reporting approximately one in three of all adults 

engaged in gig work). Another survey estimated that approximately 30% of the population freelanced or 

participated in the gig economy in the U.S., and projected that approximately 50% of the population will be 

freelancing in 10 years. Elaine Pofeldt, Are We Ready For A Workforce That Is 50% Freelance?, Forbes, Oct. 17, 

2017, available at https://www.forbes.com/sites/elainepofeldt/2017/10/17/are-we-ready-for-a-workforce-that-is-50-

freelance/#6c123af23f82 (last visited Jan. 31, 2022). See also, Matthew Lavietes and Michael McCoy, Waiting for 

Work: Pandemic Leaves U.S. Gig Workers Clamoring for Jobs, Reuters, Oct. 19, 2020, available at 

https://www.reuters.com/article/us-biggerpicture-health-coronavirus-gigw/waiting-for-work-pandemic-leaves-u-sgig-workers-clamoring-for-jobs-idUSKBN2741DM (last visited Jan. 31, 2022) (reporting that with unemployment 

soaring, more workers are joining the gig economy). 

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and temporary workers.189 Given the nature of gig work, it is likely that gig workers utilize their 

personal phones for business purposes rather than relying on separate phone lines dedicated for 

business purposes. Thus, for gig workers, allowing B2B telemarketing might subject them to an 

increasing number of unwanted calls that they cannot avoid by using call-blocking technology190 

or by placing their numbers on the FTC’s DNC Registry.191 This is not a new dilemma; one 

commenter to the Regulatory Review highlighted it as a challenge for home-based businesses 

several years ago.192 But it may be on the rise along with the gig economy. This issue likely 

affects more than just home-based businesses and applies to any person who utilizes one phone 

for both personal purposes and business purposes. Despite the Commission’s amendments in 

2015 to make explicit that the B2B telemarketing exemption only applies to the sale of goods or 

services to a business, unscrupulous telemarketers could take advantage of this rising trend to 

assert that the B2B exemption should apply if a person does have a dual purpose phone. 

In light of these changes in workforce dynamics, the Commission is seeking comment on 

whether the TSR should continue to exempt B2B telemarketing calls. Specifically, the 

Commission seeks comments on whether: (1) the exemption should be repealed in its entirety;193 

(2) the exemption should be partially repealed so that only specific provisions of the TSR would 

189 See Shane McFeely and Ryan Pendell, The Gig Economy and Alternative Work Arrangements, at 6 (Aug. 18, 

2018), available at https://www.gallup.com/workplace/240929/workplace-leaders-learn-real-gig-economy.aspx (last 

visited Jan. 31, 2022) (examples of gig workers include Uber drivers, Task Rabbit workers, contract nurses, and free 

lancers). 

190 While call-blocking technology may be effective for a consumer’s personal phone, businesses and individuals 

using their personal phones for business purposes may not feel able to employ call-blocking technology to the same 

extent if they anticipate receiving calls from prospective customers. 

191 Because the TSR exempts B2B telemarketing calls, a seller or telemarketer engaged in B2B telemarketing may 

argue that it is not prohibited from calling people on the FTC’s Do Not Call registry if those people are also using 

their phone numbers for business purposes and the seller or telemarketer is calling to sell a good or service to a 

business. 

192 West Italian, No. 00113, at 3. 

193 The Commission is publishing an NPRM in conjunction with this ANPR. The NPRM proposes, among other 

things, prohibiting deception in business-to-business telemarketing calls. This ANPR seeks additional comment on 

the B2B exemption including whether it should be repealed in its entirety. 

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apply to B2B telemarketing; or (3) the exemption should be partially repealed so that the TSR 

applies to a subset of B2B telemarketing based on, for example, the particular goods or services 

offered for sale. 

Because, as PACE has noted, telemarketers cannot easily differentiate between 

residential phone numbers and business phone numbers,194 the Commission believes it is 

possible that many telemarketers who engage in telemarketing to businesses may already ensure 

that they do not make calls to numbers on the FTC’s DNC Registry even though they are not 

currently required to comply with the DNC provisions of the TSR. As such, the Commission is 

also particularly interested in seeking comment on the number of sellers or telemarketers who 

engage in telemarketing to businesses. The Commission is also interested in whether, in the 

ordinary course of business, such sellers or telemarketers make any attempts to determine 

whether a phone number is on the FTC’s DNC Registry or to differentiate between phone 

numbers used for personal purposes and those used for business purposes. 

From its law enforcement experience and through its policy work in connection with the 

Every Community Initiative, the Commission is cognizant that fraud and other consumer and 

business concerns can have disproportionate negative impacts on underserved communities.195 

Thus, the Commission is also interested in understanding whether its proposal to apply more 

completely the TSR to B2B telemarketing will impact underserved communities differently. For 

example, would applying the TSR to B2B telemarketing impose greater burdens on minorityowned businesses engaged in telemarketing? Would it create barriers to entrepreneurship when 

194 PACE, No. 00107, at 6. 

195 See Serving Communities of Color: A Staff Report on the Federal Trade Commission’s Efforts to Address Fraud 

and Consumer Issues Affecting Communities of Color, available at 

https://www.ftc.gov/system/files/documents/reports/serving-communities-color-staff-report-federal-tradecommissions-efforts-address-fraud-consumer/ftc-communities-color-report_oct_2021-508-v2.pdf (last visited Jan. 

31, 2022). 

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entrepreneurs from communities of color are already underrepresented compared to their share of 

the population?196 Or would it provide greater protection to minority-owned businesses against 

fraud and disruptive telemarketing? The Commission has found very few sources of data on 

these issues and invites comments that can help the Commission understand the full impact of its 

proposal on underserved communities. 

D. Questions for Business-to-Business Telemarketing Calls 

Questions regarding possible benefits to people and businesses from repealing the B2B 

exemption: 

1. How many telemarketing calls do businesses and non-profit charitable organizations 

receive on average per year, per month, or per day? What kinds of goods or services are 

the subject of those B2B telemarketing calls? Do businesses and non-profit charitable 

organizations receive B2B telemarketing calls utilizing prerecorded messages, including 

soundboard technology? If yes, how many do businesses receive on average per year, per 

month, or per day? What kinds of goods or services are sold to businesses and non-profit 

charitable organizations via prerecorded message? How many of these calls involve 

soundboard technology? 

2. Do businesses and non-profit charitable organizations receive telemarketing calls 

soliciting charitable contributions? If yes, how many such calls do businesses receive on 

average per year, per month, or per day? On behalf of what kinds of organizations do 

telemarketers solicit charitable contributions from businesses and non-profit charitable 

organizations? Do businesses and non-profit charitable organizations receive B2B 

196 See, Michael McManus, Minority Business Ownership: Data from the 2012 Survey of Business Owners, Office 

of Advocacy, U.S. Small Business Administration, at 1-2 (Sept. 14, 2016), available at 

https://cdn.advocacy.sba.gov/wp-content/uploads/2016/09/07141514/Minority-Owned-Businesses-in-the-US.pdf 

(last accessed June 29, 2021). 

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telemarketing that use prerecorded messages to solicit charitable contributions? How 

many such calls do businesses and non-profit charitable organizations receive on average 

per year, per month, or per day? Do those messages utilize soundboard technology? 

3. Do people or businesses support repealing the business-to-business exemption from the 

TSR? If not, why not? If yes, what harm does B2B telemarketing cause to people, to 

small businesses, or to businesses of any size? What is an accurate estimate of annual 

harm suffered by businesses as a result of B2B telemarketing? 

4. Do underserved communities support repealing the business-to-business exemption from 

the TSR? If not, why not? If yes, what harm does B2B telemarketing cause to 

underserved communities? What is an accurate estimate of annual harm suffered by 

underserved communities as a result of B2B telemarketing? 

5. Do B2B telemarketing calls cause harm to non-profit charitable organizations? If yes, 

what harm does B2B telemarketing calls cause? If not, why not? 

6. Should the TSR apply to all B2B telemarketing calls? If so, why? If not, why not? If 

not, what types of B2B telemarketing calls should the TSR apply to and why? What 

harm do those B2B telemarketing calls cause to people, businesses, or non-profit 

charitable organizations? 

7. Should the TSR apply only to B2B telemarketing calls offering digital marketing goods 

or services to businesses or non-profit charitable organizations and imposter scams? If 

not, why not? If yes, why? How would you define digital marketing goods or services? 

What harm is caused by telemarketing these goods or services to businesses or non-profit 

charitable organizations? If the TSR were applied to B2B telemarketing calls of digital 

marketing goods or services or imposter scams harming businesses, should the TSR carve 

out any exceptions? If yes, what exceptions and why? 

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8. Should the TSR be limited to B2B telemarketing calls of specific goods or services? If 

yes, what goods or services? What harm is caused by telemarketing those goods or 

services to businesses or non-profit charitable organizations? What existing federal or 

state laws apply to the telemarketing of those goods or services to businesses or nonprofit charitable organizations? Why are the existing laws governing the sale of those 

goods or services to businesses or non-profit charitable organizations insufficient to 

prevent the identified harm? Should all provisions of the TSR apply to the telemarketing 

of those goods or services to businesses? If not, why not and what specific TSR 

provisions should apply? Should there be any carve outs from applying the TSR or 

specific provisions of the TSR to the telemarketing of those goods or services to 

businesses or non-profit charitable organizations? 

9. Should the TSR eliminate the exemption for inbound B2B telemarketing calls? If not, 

why not? If so, why? What harm is caused by inbound B2B telemarketing? 

10. Should the TSR eliminate the exemption for outbound B2B telemarketing calls? If not, 

why not? If so, why? What harm is caused by outbound telemarketing that affect 

businesses or non-profit charitable organizations? 

11. Should all of the provisions of the TSR apply to B2B telemarketing calls? If yes, why? 

If not, which provision(s) of the TSR should apply to B2B telemarketing calls? What 

harm would be prevented by applying that provision? 

12. Should the TSR’s provisions regarding the use of prerecorded messages apply to B2B 

telemarketing calls? If no, why not? If yes, why? What harm is caused by B2B 

telemarketing calls that utilize prerecorded messages? 

13. How many people work from home? How many days per week do people work from 

home? Do people who work from home use a separate phone number for business 

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purposes? Do people who work from home use their personal mobile or home landline 

for business purposes? Do people who work from home receive B2B telemarketing 

calls? Do they receive those calls on their personal phone numbers or business phone 

numbers? How many B2B telemarketing calls do they receive? Do any of those B2B 

telemarketing calls use prerecorded messages? How many B2B telemarketing calls using 

prerecorded messages do they receive? What types of goods or services are offered for 

sale in B2B telemarketing calls that use prerecorded messages? 

14. How many people are employed in the gig economy? How many gig workers use a 

separate business phone number for their gig work? How many gig workers use one 

phone number for personal purposes and another for their gig work? Do gig workers 

receive B2B telemarketing calls? How many B2B telemarketing calls do they receive? 

Do any of those B2B telemarketing calls use prerecorded messages? How many B2B 

telemarketing calls that use prerecorded messages do they receive? What types of goods 

or services are offered for sale in the B2B telemarketing calls that gig workers receive? 

15. Do businesses or non-profit organizations employ call-blocking technologies? If yes, do 

they successfully reduce the number of unwanted B2B telemarketing calls? If they don’t 

use such technologies, why not? 

16. Do people who work from home or gig workers use call-blocking technologies? If yes, 

do they use such technologies on their business phones or personal phones? Do the callblocking technologies successfully reduce the number of unwanted telemarketing calls, 

including unwanted B2B calls, if any? If they don’t use such technologies, why not? 

17. How many home-based businesses have a dedicated phone number for business 

purposes? How many B2B telemarketing calls do such businesses receive on their 

business phone numbers on average per year, per month, or per day? How many home49 
 

 

 

 

 

 

 

 

 

based businesses utilize one phone number for both personal and business purposes? 

How many B2B telemarketing calls do such businesses receive on their dual purpose 

phone number on average per year, per month, or per day? Do home-based businesses 

use call-blocking technologies? If yes, do such businesses use call-blocking technologies 

on their business lines? Do call-blocking technologies successfully reduce the number of 

unwanted telemarketing calls, including unwanted B2B calls, if any? If not, why don’t 

home-based businesses use call-blocking technologies? What types of goods or services 

are offered for sale in the B2B telemarketing calls that home-based businesses receive? 

18. How many small businesses have a dedicated phone number for business purposes? How 

many B2B telemarketing calls do such businesses receive on their business lines on 

average per year, per month, or per day? How many small businesses have one phone 

number that they use for personal and business purposes? How many B2B telemarketing 

calls do such businesses receive on their dual purpose phone number on average per year, 

per month, or per day? Do small businesses use call-blocking technologies? If yes, do 

small businesses use call-blocking technologies on their business lines? Do call-blocking 

technologies successfully reduce the number of telemarketing calls, including unwanted 

B2B calls, if any? If not, why don’t small businesses use call-blocking technologies? 

What types of goods or services are offered for sale in the B2B telemarketing calls that 

small businesses receive? 

19. How do sellers or telemarketers determine whether a phone number belongs to a person 

or a business? Has this determination been made more difficult by people working from 

home or participating in the gig economy? 

Questions regarding the potential burden to telemarketers and sellers from repealing the B2B 

exemption: 

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1. How many sellers or telemarketers engage in telemarketing to businesses? How much 

revenue do sellers or telemarketers make in telemarketing to businesses and how would 

removing the exemption for B2B sales affect their revenue? 

2. How many sellers or telemarketers engage in telemarketing exclusively to businesses and 

do not engage in telemarketing to people? 

3. How many telemarketers solicit charitable contributions from businesses? Do those same 

telemarketers also solicit charitable contributions from people? 

4. What goods or services do sellers offer for sale to businesses through telemarketing? Do 

sellers utilize other means of marketing those same goods or services to businesses? Do 

sellers sell those same goods or services to people? 

5. How many outbound B2B telemarketing calls do sellers or telemarketers make on 

average per year, per month, or per day? How many of those calls or what percentage of 

those outbound B2B telemarketing calls result in a sale? How many inbound B2B 

telemarketing calls do sellers or telemarketers receive on average per year, per month, or 

per day? How many of those calls or what percentage of those inbound telemarketing 

calls result in a sale? Do sellers or telemarketers keep records of the outbound calls or 

inbound B2B telemarketing calls in the ordinary course of business? What type of 

records do sellers or telemarketers keep of those telemarketing calls? How long are they 

kept? 

6. Do sellers or telemarketers offer goods or services to businesses by using prerecorded 

messages, including through soundboard technology? If so, how many B2B 

telemarketing calls do sellers or telemarketers make using prerecorded messages on 

average per year, per month, or per day? How many of those calls result in a sale? 

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7. Do sellers or telemarketers make B2B telemarketing calls involving debt relief services? 

If so, how many calls involving debt relief services do sellers or telemarketers make on 

average per year, per month, or per day? How many of those calls or what percentage of 

those calls result in a sale? 

8. What is the estimated burden of complying with the TSR if the B2B exemption is 

repealed for both outbound and inbound telemarketing? What is the basis for the 

estimated burden? 

9. What is the estimated burden of complying with the TSR if the B2B exemption for 

outbound telemarketing is repealed? What is the basis for the estimated burden? 

10. What is the estimated burden to underserved communities of complying with the TSR if 

the B2B exemption is repealed for outbound telemarketing? What is the estimated 

burden to underserved communities of complying with the TSR if the B2B exemption is 

repealed for inbound telemarketing? What is the basis for the estimated burden? 

11. What is the estimated burden of complying with the TSR if the B2B exemption is 

repealed for the sale of digital marketing goods or services or imposter scams that harm 

businesses? What is the basis for the estimated burden? 

12. What is the estimated burden of complying with the TSR if the B2B telemarketing calls 

are required to comply with the TSR’s provisions regarding prerecorded messages? 

What is the basis for the estimated burden? 

13. Do sellers or telemarketers who engage in B2B telemarketing take any steps to ensure 

they are not making calls to phone numbers on the DNC Registry? If so, what steps do 

sellers or telemarketers take? Do such sellers or telemarketers also engage in 

telemarketing to people? Do sellers or telemarketers who engage in B2B telemarketing 

exclusively take steps to ensure that they are not making calls to phone numbers on the 

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FTC’s DNC Registry? If so, what steps do such sellers or telemarketers take? Do they 

access the DNC Registry? 

E. Questions for Negative Option Notice and Cancelation Mechanisms 

As discussed in Section IV.C, the Commission seeks comment on the proposal that 

negative option sellers and telemarketers provide consumers with notice and the opportunity to 

cancel before they are billed for negative option products. The Commission also seeks comment 

on the scope of deceptive or abusive inbound telemarketing with a negative option feature. 

1. How many telemarketing calls involve a negative option feature on average per year, per 

month, or per day? How many of those calls or what percentage of those calls result in a 

sale? 

2. Which industries offer negative option goods or services through telemarketing and what 

products do they sell? How many of the goods or services sold by these industries are 

sold through telemarketing that includes negative options? 

3. When sellers or telemarketers sell goods, or services with negative option features, how 

often (e.g., weekly, monthly, annually) do the sellers bill consumers and businesses? 

4. Do sellers or telemarketers already provide consumers notice when consumers and 

businesses are billed as part of negative option programs? How is that notice provided? 

How often is the notice provided before the consumer and business is billed? What is the 

cost of providing this notice? 

5. Do consumers want notification that they are about to be charged for a subscription plan? 

If so, how would they like to be notified? How often would they like to be notified? 

When would they like the notification to take place (e.g., one week before being 

charged)? 

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6. What cancelation mechanisms do sellers or telemarketers provide for consumers and 

businesses to cancel their negative option programs? What is the cost of these 

mechanisms? Are some mechanisms easier for consumers to use than others? If sellers 

or telemarketers offer multiple cancelation mechanisms, how often do consumers use 

each mechanism? 

7. Do consumers and businesses who purchase a negative option product or service through 

telemarketing have a preference for how they communicate with the seller (e.g. email, 

phone, online chat, or some other method)? 

8. Do consumers and businesses who purchase negative option products or services through 

telemarketing typically have email accounts where they can receive notice of negative 

option programs? Do they typically provide email addresses to sellers or telemarketers? 

Do they have a preference for how they cancel the negative option or service? If not, 

what is the best way for those consumers and businesses to cancel negative-option 

programs? 

9. When sellers or telemarketers sell negative option programs to consumers and 

businesses, what personal information do they obtain? How often do sellers or 

telemarketers communicate with consumers by email? 

10. How often do sellers or telemarketers use unfair or deceptive acts or practices to sell 

goods or services with a negative option feature solely through inbound telemarketing 

that are not part of an upsell? Are goods or services other than tech support sold in this 

manner? If so, which goods or services and how often are they sold in this 

manner? Should the TSR be further amended to provide consumers with additional 

protections against these deceptive acts or practices? How so? 

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VI. Comment Submissions 

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 Section 310 - ANPR) (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 - ANPR) (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 

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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 

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 

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Commission’s privacy policy, including routine uses permitted by the Privacy Act, see 

https://www.ftc.gov/site-information/privacy-policy. 

By direction of the Commission. 

April Tabor, 

Secretary 

57