[Federal Register Volume 62, Number 73 (Wednesday, April 16, 1997)]
[Notices]
[Pages 18666-18669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9712]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-38480]


Telemarketing and Consumer Fraud and Abuse Prevention Act; 
Determination that No Additional Rulemaking Required

April 7, 1997.

A. Background

    The Telemarketing and Consumer Fraud and Abuse Prevention Act (the 
``Telemarketing Act'') \1\ requires the Commission to promulgate, or 
require the securities industry self-regulatory organizations 
(``SROs'') to promulgate, rules substantially similar to the rules 
adopted by the Federal Trade Commission (``FTC'') pursuant to the 
Telemarketing Act (the ``FTC'').\2\ The purpose of these rules is to 
prohibit deceptive and other abusive telemarketing acts or practices by 
brokers, dealers, and other securities industry professionals.\3\ the 
Telemarketing Act provides that the Commission may elect not to 
promulgate such rules only if it determines that existing rules provide 
protection against deceptive and abusive practices in securities 
transactions that is substantially similar to that provided by the FTC 
Rules, or that additional rules are not necessary or appropriate in the 
public interest.\4\
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    \1\ 15 U.S.C. 6101-08 (1996).
    \2\ Section 3(d)(1)(a) of the Telemarketing Act provides that 
``not later than 6 months after the effective date of the rules 
promulgated by the Federal Trade Commission under subsection (a) [of 
Section 3 of the Telemarketing Act], the Securities and Exchange 
Commission shall promulgate, or require any national securities 
exchange or registered securities association to promulgate, rules 
substantially similar to such rules to prohibit deceptive and other 
abusive telemarketing acts or practices described in paragraph (2) 
[of Section 3(d)].'' 15 U.S.C. 6102(d)(1)(a) (1996). The FTC adopted 
the FTC Rules on August 23, 1995, with an effective date of December 
31, 1995. 60 FR 43842 (codified at 16 CFR 310.1-310.8 (1996)). The 
proposed NASD Rule was filed with the Commission on June 28, 1996. 
See Securities Exchange Act Release No. 37475 (July 30, 1996).
    \3\ Section 3(d)(2)(A) of the Telemarketing Act provides that 
``[t]he rules promulgated by the Securities and Exchange Commission 
under paragraph (1)(a) shall apply to a broker, dealer, transfer 
agent, municipal securities dealer, municipal securities broker, 
government securities broker, government securities dealer, 
investment adviser or investment company, or any individual 
associated with [any of the foregoing].'' 15 U.S.C. 6102(d)(2)(A) 
(1996). The Telemarketing Act defines such terms by reference to the 
Securities Exchange Act of 1934, the Investment Advisers Act of 
1940, and the Investment Company Act of 1940, and explicitly states 
that the FTC Rules shall not apply to such persons.
    \4\ Section 3(d)(1)(B) of the Telemarketing Act provides that 
``[t]he Securities and Exchange Commission is not required to 
promulgate a rule under [Section 3(d)(1)(A)] if it determines that--
(i) Federal securities laws or rules adopted by the Securities and 
Exchange Commission thereunder provide protection from deceptive and 
other abusive telemarketing by persons described in [Section 
3(d)(2)] substantially similar to that provided by rules promulgated 
by the Federal Trade Commission under [Section 3(a)]; or (ii) such a 
rule promulgated by the Securities and Exchange Commission is not 
necessary or appropriate in the public interest, or for the 
protection of investors, or would be inconsistent with the 
maintenance of fair and orderly markets.'' 15 U.S.C. 6102(d)(1)(B) 
(1996).
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    In early 1996, members of the staff of the Division of Market 
Regulation conducted a series of meetings and conferences with 
representatives of the National Association of Securities Dealers, Inc. 
(``NASD'') and other major SROs to discuss the requirements of the 
Telemarketing Act. As a result, the NASD filed a proposed rule change 
(the ``NASD Rule'') \5\ with the Commission for approval. Shortly 
thereafter, the Municipal Securities Rulemaking Board (``MSRB'') filed 
a substantially similar proposed rule change (the ``MSRB Rule'') \6\ 
with the Commission. The staff, by delegated authority, approved the

[[Page 18667]]

NASD rule on December 2, 1996,\7\ and the MSRB Rule on December 16, 
1996.\8\
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    \5\ the NASD Rule, SR-NASD-96-28, initially was filed with the 
Commission on June 28, 1996, and subsequently was amended by the 
NASD on July 18, 1996, July 24, 1996, and October 18, 1996. See 
Securities Exchange Act Release No. 37475 (July 24, 1996).
    \6\ The MSRB filed the MSRB Rule, SR-MSRB-96-6, with the 
Commission for approval on July 30, 1996. See Securities Exchange 
Act Release No. 37626 (Aug. 30, 1996). The MSRB amended its rule 
filing on November 1, 1996.
    \7\ See Securities Exchange Act Release No. 38009 (Dec. 2, 
1996).
    \8\ See Securities Exchange Act Release No. 38053 (Dec. 16, 
1996).
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    As discussed below, the Commission finds that the Securities 
Exchange Act of 1934 (the ``Exchange Act'') and the Investment Advisers 
Act of 1940 (the ``Advisers Act''), the rules thereunder, and the other 
rules of the SROs (including the NASD Rule and the MSRB Rule), satisfy 
the requirements of the Telemarketing Act because the applicable 
provisions of such laws and rules are substantially similar to the FTC 
Rules, except for those FTC Rules that involve areas already 
extensively regulated by existing securities laws or regulations, or 
activities inapplicable to securities transactions. Accordingly, the 
Commission has determined that no additional rulemaking is required by 
it under the Telemarketing Act. In accordance with Section 3(d)(1)(B) 
of the Telemarketing Act, the Commission is publishing this 
determination in the Federal Register, together with the reasons 
therefor.\9\
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    \9\ Section 3(d)(1)(B) of the Telemarketing Act provides that, 
if the Commission determines that no additional rulemaking is 
required, it ``shall publish in the Federal Register its 
determination with the reasons for it.'' 15 U.S.C. 6102(d)(1)(B) 
(1996).
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B. Discussion

    The FTC Rules address three areas: (1) Abusive telemarketing acts 
or practices, which are addressed through a requirement to maintain a 
do-not-call list, calling time restrictions, required oral disclosures, 
and proscriptions against the use of threats, intimidation, profane or 
obscene language, and certain repetitive calling patterns; (2) 
deceptive telemarketing acts or practices, which are addressed 
primarily through required disclosures about the goods or services 
being offered and prohibitions against misrepresentations with respect 
thereto; and (3) recordkeeping requirements relating to various aspects 
of telemarketing transactions.

1. Abusive Telemarketing Acts or Practices

    Section 310.4 of the FTC Rules proscribes a number of ``abusive 
telemarketing acts or practices'' by telemarketers. First, the FTC 
Rules effectively require the maintenance of do-not-call lists by 
telemarketers. Second, time-of-day restrictions prohibit cold-calls 
prior to 8 a.m. or after 9 p.m. local time at the called person's 
location. Third, telemarketers are required to disclose orally to the 
called person the caller's identity, that the purpose of the call is to 
sell goods or services, the nature of the goods or services being 
offered, and, if a prize promotion is involved, that no purchase is 
necessary to participate therein. Fourth, telemarketers are prohibited 
from using threats or intimidation, profane or obscene language, or 
certain repetitive calling patterns, in connection with telemarketing 
transactions. Finally, the FTC Rules prohibit a telemarketer from 
receiving payment in advance from a consumer for (1) Cleansing a credit 
report, (2) Obtaining a refund or goods promised with respect to a 
prior telemarketing transaction, or (3) Arranging a loan or other 
extension of credit.
    With respect to the do-not-call list requirement, the New York 
Stock Exchange (``NYSE''), the NASD, the Chicago Board Options Exchange 
(``CBOE''), the American Stock Exchange (``AMEX''), and the Pacific 
Stock Exchange (``PSE'') have each adopted rules that require all 
members to make and maintain a centralized do-not-call list.\10\ 
Further, the MSRB Rule includes a provision requiring municipal 
securities brokers and dealers to maintain a do-not-call list.\11\
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    \10\ NYSE Rule 440A; NASD Rule 3110(g); CBOE Rule 9.24; AMEX 
Rule 428; PSE Rule 9.20(b).
    \11\ MSRB rule G-8(a)(xix)(A).
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    Certain other abusive telemarketing acts or practices proscribed by 
the FTC Rules, which are addressed by the calling time restrictions and 
required oral disclosures, are covered by the NASD Rule and the MSRB 
Rule.\12\ Both the NASD Rule and the MSRB Rule, with certain limited 
exceptions, (a) prohibit cold-calls at any time other than between 8 
a.m. and 9 p.m. local time at the called person's location, without the 
prior consent of the called person,\13\ and (b) require the cold-caller 
to identify himself and his firm, provide a name or address at which 
the caller may be contacted, and state that the purpose of the call is 
to sell securities.\14\
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    \12\ Virtually all registered broker-dealers that conduct a 
public business (i.e., those that potentially may engage in 
telemarketing activities) are NASD members or municipal securities 
dealers, and accordingly are subject either to the NASD Rule or the 
MSRB Rule.
    \13\ NASD Rule 2211(a); MSRB rule G-39(a).
    \14\ NASD Rule 2211(b); MSRB rule G-39(b).
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    A third group of abusive telemarketing acts or practices proscribed 
by the FTC Rules, namely the use of threats, intimidation, profane or 
obscene language, and certain repetitive calling patterns, are 
prohibited specifically by recent NASD and MSRB interpretations. The 
NASD and MSRB have each issued an interpretation of their general rule 
proscribing conduct inconsistent with just and equitable principles of 
trade or fair dealing, clarifying that such proscribed conduct includes 
(a) Threats, intimidation, and the use of profane or obscene language, 
and (b) calling a person repeatedly with intent to annoy, abuse, or 
harass the called party.\15\
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    \15\ See NASD Notice to Members 96-44 (July 1996) (conduct 
inconsistent with NASD Rule 2110); MSRB Reports, Vol. 16, No. 3 
(September 1996) (conduct inconsistent with MSRB rule G-17).
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    Finally, certain specific abusive telemarketing acts or practices 
addressed by the FTC Rules do not appear applicable to securities 
transactions. The FTC Rules addressing the receipt of payment in 
advance for cleansing a credit report, obtaining refunds, or arranging 
a loan, are included in this category.

2. Deceptive Telemarketing Acts or Practices

    Section 310.3 of the FTC Rules prohibits a number of ``deceptive 
telemarketing acts or practices'' by telemarketers, and primarily 
requires specified disclosures and prohibits misrepresentations. First, 
the telemarketer must disclose the following information, in a clear 
and conspicuous manner, prior to payment by a customer for the goods or 
services offered: (1) The quantity of goods or services involved and 
the total cost thereof; (2) All material restrictions, limitations, or 
conditions with respect thereto; (3) All material terms and conditions 
of the seller's refund, cancellation, exchange, or repurchase policy, 
or the lack thereof; (4) In a prize promotion, the odds of receiving 
the prize, that no purchase or payment is required to participate, and 
instructions on how to participate; and (5) in a prize promotion, all 
material costs or conditions to redeem the prize that is the subject 
thereof. Second, a telemarketer may not make any false or misleading 
statement to induce any person to pay for goods or services, and 
misrepresentation by a telemarketer, directly or by implication, 
specifically is prohibited with respect to (1) Any of the required 
disclosure items described above; (2) Any material aspect of the 
performance, efficacy, nature, or central characteristics of the goods 
or services offered; (3) Any material aspect of an investment 
opportunity including, but not limited to, risk, liquidity, earnings 
potential, or profitability; and (4) A seller's or telemarketer's 
affiliation with, or endorsement by, any government or third-party 
organization. Third, a telemarketer may not obtain or submit for 
payment a check, draft, or other form

[[Page 18668]]

of negotiable paper drawn on a customer's bank or other account without 
the customer's express verifiable authorization, and credit card 
laundering (i.e., having a third party present a credit card sales 
draft) is prohibited in connection with a telemarketing transaction. 
Finally, no person may provide substantial and knowing assistance with 
respect to a violation of any of the FTC Rules.
    One of the deceptive telemarketing acts or practices proscribed by 
the FTC Rules, namely the unauthorized use of demand drafts, 
specifically is addressed by the NASD Rule and the MSRB Rule. Both the 
NASD Rule and the MSRB Rule prohibit the cold-caller from utilizing a 
demand draft without the customer's express verifiable 
authorization.\16\
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    \16\ NASD Rule 3110(g)(2); MSRB rule G-8(a)(xix)(B).
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    Certain of the deceptive telemarketing acts or practices proscribed 
by the FTC Rules, namely those addressing prize promotions and credit 
card laundering, are not applicable to securities transactions.
    The remaining deceptive telemarketing acts or practices proscribed 
by the FTC Rules involve areas already extensively regulated by 
existing securities laws and regulations. The FTC Rules that proscribe 
deceptive telemarketing acts or practices primarily (1) Require the 
disclosure of certain information with respect to the goods or services 
being offered, and (2) prohibit misrepresentations with respect 
thereto. However, Section 9(a) of the Exchange Act,\17\ section 10(b) 
of the Exchange Act and the rules promulgated thereunder,\18\ Sections 
15(c) and 15(g) of the Exchange Act and the rules promulgated 
thereunder,\19\ and the related antifraud rules of the SROs,\20\ 
extensively regulate disclosure and prohibit misrepresentations in 
connection with the offer and sale of securities. Therefore, the more 
limited regulations addressing required disclosures and prohibited 
misrepresentations set forth in the FTC Rules and applicable to non-
securities transactions are unnecessary or inappropriate in the 
securities context in light of the more extensive existing regulatory 
framework.
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    \17\ Section 9(a)(4) of the Exchange Act prohibits a broker or 
dealer, in connection with the purchase or sale of any security 
registered on a national securities exchange, from making ``any 
statement which was at the time and in the light of the 
circumstances under which it was made, false or misleading with 
respect to any material fact, and which he knew or had reasonable 
ground to believe was so false or misleading.''
    \18\ Section 10(b) of the Exchange Act proscribes the use, in 
connection with the purchase or sale of any security, of ``any 
manipulative or deceptive device or contrivance'' in contravention 
of the rules and regulations promulgated by the Commission. Rule 
10b-5 under the Exchange Act, for example, makes it unlawful for 
``any person, directly or indirectly, . . . (a) to employ any 
device, scheme, or artifice to defraud, (b) to make any untrue 
statement of a material fact or to omit to state a material fact 
necessary to make the statements made, in light of the circumstances 
under which they were made, not misleading, or (c) to engage in any 
act, practice, or course of business which operates or would operate 
as a fraud or deceit upon any person, in connection with the 
purchase or sale of any security.'' In addition, Rule 10b-10 under 
the Exchange Act generally requires a broker-dealer to give or send 
to its customer, at or before the completion of a securities 
transaction, a written notification disclosing, among other things, 
the date of the transaction, the identity, price, and number of 
shares or units (or principal amount) of the security purchased or 
sold, whether the broker-dealer acted as principal or agent in the 
transaction, and the fees paid to, or markup received by, the 
broker-dealer in connection therewith.
    \19\ Sections 15(c)(1) and 15(c)(2) of the Exchange Act, among 
other things, prohibit brokers, dealers, municipal securities 
dealers, and government securities brokers and dealers from 
effecting transactions in, or inducing or attempting to induce the 
purchase or sale of, securities by means of any manipulative, 
deceptive, or other fraudulent device or contrivance. With respect 
to non-municipal or non-government securities brokers or dealers, 
the foregoing is limited to transactions otherwise than on a 
national securities exchange of which such broker or dealer is a 
member (in which case Section 9(a)(4) of the Exchange Act would 
apply). The rules promulgated by the Commission pursuant thereto 
define the prohibited activities in more detail. For example, Rule 
15c1-2 under the Exchange Act defines these proscribed activities as 
including ``any act, practice, or course of business which operates 
or would operate as a fraud or deceit upon any person'' and ``any 
untrue statement of a material fact and any omission to state a 
material fact necessary in order to make the statements made, in 
light of the circumstances under which they were made, not 
misleading, which statement or omission is made with knowledge or 
reasonable grounds to believe it is untrue or misleading.'' Rule 
15c2-8 sets forth certain prospectus delivery requirements for 
brokers and dealers participating in certain distributions of 
securities with respect to which a registration statement has been 
filed under the Securities Act of 1933. Section 15(g) of the 
Exchange Act and Rules 15g-2 and 15g-9 thereunder, among other 
things, prohibit a broker or dealer from effecting certain 
transactions in ``penny stocks'' (generally, securities with a price 
of less than $5 per share or unit that are not traded on an exchange 
or on NASDAQ) unless the broker or dealer first (1) has delivered a 
risk disclosure document to the customer, (2) has made certain 
suitability determinations and delivered to the customer a written 
statement setting forth the basis therefore, and (3) has received 
from the customer the customer's written agreement to the 
transaction.
    \20\ E.g., NASD Rule 2120; NYSE Rule 476; MSRB rule G-17.
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3. Recordkeeping Requirements

    The FTC Rules require that the following records be kept by 
telemarketers with respect to their telemarketing activities for a 
period of 24 months: (1) Copies of all substantially different 
advertising, brochures, telemarketing scripts, and promotional 
materials; (2) the name and address of each customer, the product or 
service purchased, the price paid, and the date shipped or provided; 
(3) the name, address, telephone number, and job title of each current 
and former employee directly involved in telephone sales; (4) the name 
and address of each recipient of a prize with a value of at least $25, 
and a description of such prize; and (5) all verifiable authorizations 
required in connection with the submission of any demand drafts 
described above.
    Both the NASD Rule and the MSRB Rule require the retention of any 
express verifiable authorization obtained in connection with the use of 
a demand draft for a period of three years.\21\ As noted above, the FTC 
Rules addressing prize promotions are not applicable to securities 
transactions.
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    \21\ NASD Rule 3110(g)(3); MSRB rule G-9(b)(xii).
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    The remaining recordkeeping requirements of the FTC Rules are 
unnecessary in the securities context given the more extensive 
recordkeeping requirements imposed upon broker-dealers by the Exchange 
Act and existing SRO rules. Rule 17a-3 under the Exchange Act requires 
a broker-dealer to maintain certain records, including detailed records 
of all transactions in securities effected by, and all salespersons 
employed by, such broker-dealer.\22\ Rule 17a-4 under the Exchange Act 
requires, among other things, such records, as well as copies of all 
communications sent by a broker-dealer relating to its business (which 
would include advertisements and sales literature),\23\ to be retained 
by the broker-dealer for varying periods, but in no case less than 
three years. Existing rules of the SROs, in general, also contain 
comparable recordkeeping requirements.\24\
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    \22\ For example, Rule 17a-3(a)(1) under the Exchange Act 
provides that broker-dealers shall make and keep current 
``[b]lotters (or other records of original entry) containing an 
itemized daily record of all purchases and sales of securities, all 
receipts and deliveries of securities (including certificate 
numbers), all receipts and disbursements of cash and all other debts 
and credits. Such records shall show the account for which each such 
transaction was effected, the name and amount of securities, the 
unit and aggregate purchase or sale price (if any), the trade date, 
and the name or other designation of the person from whom purchased 
or received or to whom sold or delivered.'' Rule 17a-3(a)(12) 
requires broker-dealers to maintain detailed information with 
respect to each associated person (which includes any salesman or 
employee soliciting transactions or accounts) of such broker-dealer.
    \23\ Telemarketing scripts expressly are included within the 
definitions of ``sales literature'' or ``advertisement'' in both the 
NASD and MSRB rules. See NASD Rule 2210(a)(2); MSRB rule G-21(a).
    \24\ See, e.g., NASD Rules 2210 and 3110; NYSE Rules 410 and 
472.

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4. Investment Companies and Investment Advisers

    Most investment company securities are sold through registered 
broker-dealers that are required by the Exchange Act to be members of 
the NASD and are subject to NASD rules. Separate rulemaking under the 
Investment Company Act of 1940 covering the telemarketing of investment 
company securities by NASD members would be largely duplicative of the 
NASD Rule and would not provide additional protections to consumers.
    A small minority of investment companies are ``self-distributed'' 
(i.e., the investment company sells its share to the public directly 
and not through a registered broker-dealer). The sale of these 
companies' securities are not covered by NASD rules. Under Exchange Act 
Rule 3a4-1, however, unsolicited telemarketing by self-distributed 
investment companies generally is prohibited.\25\ Because telemarketing 
by self-distributed investment companies is already restricted by Rule 
3a4-1, additional rulemaking appears unnecessary.
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    \25\ Rule 3a4-1 provides an exclusion from the definition of 
``broker'' for certain persons associated with issuers of 
securities. Self-distributed investment companies operate without 
NASD membership pursuant to this rule. Rule 3a4-1(a)(4)(iii) 
prohibits ``oral solicitations'' of ``potential purchasers.'' 
Investment company personnel may respond, however, ``to inquiries of 
a potential purchaser in a communication initiated by the potential 
purchaser in a communication initiated by the potential purchaser'' 
as long as the response is limited to information contained in the 
investment company's prospectus.
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    Investment advisers infrequently employ telemarketing to obtain 
advisory clients. Unlike the sale of a single security or other 
products and services, the service provided by an investment adviser 
typically involves an ongoing personal relationship that cannot easily 
be established over the telephone. Moreover, the Advisers Act and 
Commission rules thereunder provide procedural safeguards that have the 
effect of deterring abusive telemarketing by advisers. For example, 
Rule 204-3 generally requires a registered investment adviser to 
provide to a prospective client a written disclosure statement 
containing specified information concerning its personnel, investment 
strategies and methods, the services provided and the fees charged (1) 
At least 48 hours before entering into an investment advisory contract, 
or (2) At the time the contract is entered into, if the client has the 
right to terminate the contract without penalty within five business 
days.\26\
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    \26\ Rule 204-3 does not require a disclosure statement for a 
``contract for impersonal advisory services'' involving a payment of 
less than $200. Impersonal advisory services include (1) general 
information or recommendations not tailored for a specific client, 
and 92) statistical information that does not make a recommendation 
regarding a particular security. Neither the Division of Investment 
Management nor the Office of Compliance Inspections and Examinations 
is aware of any instances in which impersonal advisory services have 
been sold to consumers through unsolicited telemarketing.
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    Unsolicited telemarketing is not, however, prohibited by the 
Advisers Act or the rules thereunder. Although the Commission does not 
believe that specific rules are warranted at this time, it will monitor 
the implementation and effectiveness of the NASD Rule and consider 
whether similar rules are necessary to deter the development of abusive 
telemarketing practices by the investment advisory industry.

C. Conclusion

    The Commission finds that the NASD Rule and MSRB Rule, together 
with the Exchange Act and the Advisers Act, the rules thereunder, and 
the other rules of the SROs, satisfy the requirements of the 
Telemarketing Act, because the applicable provisions of such laws and 
rules are substantially similar to the FTC Rules,\27\ except for those 
FTC Rules that involve areas already extensively regulated by existing 
securities laws or regulations or activities inapplicable to securities 
transactions.\28\ Accordingly, the Commission has determined that no 
additional rulemaking is required by it under the Telemarketing Act.

    \27\ The Commission finds that such laws and rules provide 
protection from deceptive and other abusive telemarketing acts and 
practices by persons described in Section 3(d)(2) of the 
Telemarketing Act substantially similar to that provided by the FTC 
Rules. See Section 3(d)(1)(B)(i) of the Telemarketing Act, 15 U.S.C. 
6102(d)(1)(B)(i) (1996).
    \28\ With respect to those FTC Rules that involve areas already 
extensively regulated by existing securities laws or regulations, or 
activities inapplicable to securities transactions, the Commission 
finds that the promulgation of substantially similar rules is not 
necessary or appropriate in the public interest. See Section 
3(d)(1)(B)(ii) of the Telemarketing Act, 15 U.S.C. 6102(d)(1)(B)(ii) 
(1996).
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    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 97-9712 Filed 4-15-97; 8:45 am]
BILLING CODE 8010-01-M