Federal Register / Vol. 87, No. 107 / Friday, June 3, 2022 / Proposed Rules 33677 

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? 

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 August 2, 2022. Write 

‘‘Telemarketing Sales Rule ANPR, 

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 webbased form. 

If you file your comment on paper, 

write ‘‘Telemarketing Sales Rule ANPR, 

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. 

Because your comment will be placed 

on the publicly accessible website, 

https://www.regulations.gov, you are 

solely responsible for making sure your 

comment does not include any sensitive 

or confidential information. In 

particular, your comment should not 

include any sensitive personal 

information, such as your or anyone 

else’s Social Security number; date of 

birth; driver’s license number or other 

state identification number, or foreign 

country equivalent; passport number; 

financial account number; or credit or 

debit card number. You are also solely 

responsible for making sure 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 

document and the news release 

describing it. The FTC Act and other 

laws 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 it 

receives on or before August 2, 2022. 

For information on the Commission’s 

privacy policy, including routine uses 

permitted by the Privacy Act, see 

https://www.ftc.gov/site-information/ 

privacy-policy. 

By direction of the Commission. 

April J. Tabor, 

Secretary. 

[FR Doc. 2022–10922 Filed 6–2–22; 8:45 am] 

BILLING CODE 6750–01–P 

FEDERAL TRADE COMMISSION 

16 CFR Part 310 

RIN 3084–AB19 

Telemarketing Sales Rule 

AGENCY: Federal Trade Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Trade 

Commission (‘‘FTC’’ or ‘‘Commission’’) 

seeks public comment on proposed 

amendments to the Telemarketing Sales 

Rule (‘‘TSR’’). The proposed 

amendments would require 

telemarketers and sellers to maintain 

additional records of their telemarketing 

transactions, prohibit material 

misrepresentations and false or 

misleading statements in business to 

business (‘‘B2B’’) telemarketing 

transactions, and add a new definition 

for the term ‘‘previous donor.’’ The 

modified recordkeeping requirements 

are necessary to protect consumers from 

deceptive or abusive telemarketing 

practices and support the Commission’s 

law enforcement mandate to enforce the 

TSR. The prohibition on material 

misrepresentations and false or 

misleading statements is necessary to 

protect businesses from deceptive 

telemarketing practices. The new 

definition of ‘‘previous donor’’ will 

clarify that a telemarketer may not use 

prerecorded messages to solicit 

charitable donations on behalf of a 

charitable organization unless the 

recipient of the call made a donation to 

that particular charitable organization 

within the prior two years. 

DATES: Comments must be received by 

August 2, 2022. 

ADDRESSES: Interested parties may file a 

comment online or on paper by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Write ‘‘Telemarketing Sales Rule 

(16 CFR part 310—NPRM) (Project No. 

R411001)’’ on your comment and file 

your comment through https://

www.regulations.gov. If you prefer to 

file your comment on paper, mail your 


khammond on DSKJM1Z7X2PROD with PROPOSALS
33678 Federal Register / Vol. 87, No. 107 / Friday, June 3, 2022 / Proposed Rules 

1 15 U.S.C. 6101–6108. 

2 15 U.S.C. 6102(a)(3). The Telemarketing Act was 

subsequently amended in 2001 to add Section 15 

U.S.C. 6102(a)(3)(D), which requires a telemarketer 

to promptly and clearly disclose that the purpose 

of the call is to solicit charitable contributions. See 

Uniting and Strengthening America by Providing 

Appropriate Tools Required to Intercept and 

Obstruct Terrorism Act (‘‘USA PATRIOT Act’’), 

Public Law 107–56, 115 Stat. 272 (Oct. 26, 2001). 

3 15 U.S.C. 6101(a). See also 2002 notice of 

proposed rulemaking, 67 FR 4492, 4510 (Jan. 30, 

2002). 

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

5See Statement of Basis and Purpose and Final 

Rule (‘‘Original TSR’’), 60 FR 43842 (Aug. 23, 1995). 

6 Id. at 43857. 

7 Id. at 43848. 

8 Id. 

9 Id. at 43851. 

10 Id. 

11 Id. at 43867. 

12 Id. at 43861. 

13See Statement of Basis and Purpose and Final 

Amended Rule (‘‘2003 TSR Amendments’’), 68 FR 

4580 (Jan. 29, 2003) (adding Do Not Call Registry, 

charitable solicitations, and other provisions). 

14See Statement of Basis and Purpose and Final 

Rule Amendments (‘‘2008 TSR Amendments’’), 73 

FR 51164 (Aug. 29, 2008) (addressing the use of 

robocalls). 

15See Statement of Basis and Purpose and Final 

Rule Amendments (‘‘2010 TSR Amendments’’), 75 

FR 48458 (Aug. 10, 2010) (adding debt relief 

provisions). The prohibition on misrepresenting 

material aspects of debt relief services in 

310.3(a)(2)(x) was added in 2010 along with other 

debt relief provisions. See 2010 TSR Amendments, 

75 FR at 48498. The Commission subsequently 

published correcting amendments to the text of 

§ 310.4 of the TSR. Telemarketing Sales Rule; 

Correcting Amendments, 76 FR 58716 (Sept. 22, 

2011). 

16See 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, cashto-cash money transfers, and cash reload 

mechanisms). 

comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, 600 Pennsylvania Avenue 

NW, Suite CC–5610 (Annex B), 

Washington, DC 20580, or deliver your 

comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, Constitution Center, 400 7th 

Street SW, 5th Floor, Suite 5610 (Annex 

B), Washington, DC 20024. 

FOR FURTHER INFORMATION CONTACT: 

Benjamin R. Davidson, (202) 326–3055, 

bdavidson@ftc.gov, or Patricia Hsue, 

(202) 326–3132, phsue@ftc.gov, Division 

of Marketing Practices, Bureau of 

Consumer Protection, Federal Trade 

Commission, 600 Pennsylvania Avenue 

NW, Mail Stop CC–8528, Washington, 

DC 20580. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

The Federal Trade Commission issues 

this notice of proposed rulemaking 

(‘‘NPRM’’) to invite public comment on 

proposed amendments to the TSR (part 

310). The proposed amendments to the 

recordkeeping requirements reflect 

evolutions in the marketplace that make 

it more difficult for the Commission and 

other regulators to obtain records of 

sellers’ and telemarketers’ telemarketing 

activities to enforce the TSR. The 

principal proposed amendments would 

require sellers or telemarketers to retain 

additional records of their telemarketing 

activities and clarify the existing 

recordkeeping requirements to more 

clearly delineate the information 

telemarketers or sellers must keep to 

comply with those provisions. The 

Commission is also proposing to 

prohibit in B2B telemarketing 

transactions: (1) Several types of 

material misrepresentations in the sale 

of goods or services; and (2) false or 

misleading statements to induce a 

person to pay for goods or services or to 

induce a charitable contribution 

(collectively, ‘‘misrepresentations’’). 

This prohibition is necessary to help 

protect businesses from deceptive 

telemarketing practices. Finally, the 

Commission is proposing a new 

definition of the term ‘‘previous donor’’ 

to clarify that telemarketers are 

prohibited from using prerecorded 

messages to solicit charitable 

contributions from consumers on behalf 

of a non-profit charitable organization 

unless the consumer donated to that 

non-profit charitable organization 

within the last two years. 

This NPRM invites written comments 

on all issues raised by the proposed 

amendments, including answers to the 

specific questions set forth in Section IV 

of this document. 

II. Overview of the Telemarketing Sales 

Rule 

Congress enacted the Telemarketing 

and Consumer Fraud and Abuse 

Prevention Act (‘‘Telemarketing Act’’ or 

‘‘Act’’) in 1994 to curb deceptive and 

abusive telemarketing practices and 

provide key anti-fraud and privacy 

protections for consumers receiving 

telephone solicitations to purchase 

goods or services.1 The Telemarketing 

Act directed the Commission to adopt a 

rule prohibiting deceptive or abusive 

telemarketing practices, including 

prohibiting telemarketers from 

undertaking a pattern of unsolicited 

calls that reasonable consumers would 

consider coercive or abusive of their 

privacy, restricting the time of day 

telemarketers may make unsolicited 

calls to consumers, and requiring 

telemarketers to promptly and clearly 

disclose that the purpose of the call is 

to sell goods or services.2 The Act also 

generally directed the Commission to 

address in its rule other acts or practices 

it found to be deceptive or abusive, 

including acts or practices of entities or 

individuals that assist and facilitate 

deceptive telemarketing, and to consider 

including recordkeeping requirements.3

Finally, the Act authorized state 

Attorneys General, or other appropriate 

state officials, and private litigants to 

bring civil actions in federal district 

court to enforce compliance with the 

FTC’s rule.4

Pursuant to the Act’s directive, the 

FTC promulgated the TSR on August 23, 

1995.5 The FTC included recordkeeping 

requirements in § 310.5, stating the 

provision was ‘‘necessary to enable law 

enforcement agencies to ascertain 

whether sellers and telemarketers are 

complying with the requirements of the 

Final Rule, to identify persons who are 

involved in any challenged practices, 

and to identify customers who may have 

been injured.’’ 6 The FTC also included 

a prohibition on misrepresenting several 

categories of material information in 

§ 310.3(a)(2).7 The categories were based 

on ‘‘established case law’’ and 

‘‘allegations in complaints filed in 

recent years by the Commission.’’ 8 The 

Commission also included a prohibition 

on making false or misleading 

statements to induce a person to pay for 

goods or services, or to induce a 

charitable contribution, in § 310.3(a)(4).9

Section 310.3(a)(4) was designed to 

‘‘provide[] law enforcement with 

flexibility to address new ways that 

sellers and telemarketers engaged in 

fraud might attempt to take consumers’ 

money.’’ 10

The original TSR excluded several 

types of calls, including B2B calls other 

than those that sold office and cleaning 

supplies.11 The Commission required 

B2B calls that sold office and cleaning 

supplies to comply with the TSR 

because, in the Commission’s 

experience, calls involving the sale of 

those products were ‘‘by far the most 

significant business-to-business problem 

area.’’ 12

Since then, the Commission has 

amended the Rule on four occasions: (1) 

In 2003 to, among other things, create 

the National Do-Not Call Registry and 

extend the Rule to telemarketing calls 

soliciting charitable contributions; 13 (2) 

in 2008 to prohibit prerecorded 

messages (‘‘robocalls’’) selling a good or 

service or soliciting charitable 

contributions; 14 (3) in 2010 to ban the 

telemarketing of debt relief services 

requiring an advance fee; 15 and (4) in 

2015 to bar the use in telemarketing of 

certain novel payment mechanisms 

widely used in fraudulent 

transactions.16


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Federal Register / Vol. 87, No. 107 / Friday, June 3, 2022 / Proposed Rules 33679 

17Public Law 107–56, 115 Stat. 272 (Oct. 26, 

2001). 

18 2003 TSR Amendments, 68 FR at 4582. 

19 Id. at 4590. 

20 Id. 

21 Id. at 4590–91. 

22See 2008 TSR Amendments, 73 FR at 51185. 

23 Id. at 51193. 

24 Id. at 51194. 

25The Commission proposes implementing a 

time limit for the existence of an established 

relationship so that consumers will not receive 

robocalls in perpetuity from organizations to which 

they have donated. The Commission chose two 

years to account for the possibility that consumers 

who donate annually may not necessarily donate 

exactly one year apart (i.e., one year the consumer 

might donate in January and the following year the 

consumer might not donate until December). The 

Commission seeks public comment on whether two 

years is an appropriate time period. 

26 16 CFR 310.5(a). 

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

28 In 2003, the Commission added a 

recordkeeping requirement for the abandoned call 

safe harbor but did not include that provision in 

§ 310.5(a). See 2003 TSR Amendments, 68 FR at 

4645. 

29See, e.g., 2003 TSR Amendments, 68 FR at 

4653–54 (declining to implement any of the 

suggested recordkeeping revisions that were raised 

in the public comments); 2010 TSR Amendments, 

75 FR at 48502. 

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

31 Id. 

32 2010 TSR Amendments, 75 FR at 48502. 

33 2015 TSR Amendments, 80 FR at 77555–56. 

34 Id. 

35 Id. (emphasis added). As such, ‘‘cold calls to 

consumers whose name and numbers were 

purchased from a third-party list broker are [still] 

prohibited under the TSR’s do-not-call provisions 

because the calls are not placed by the specific 

seller that obtained the EWA or EBR.’’ Id. 

A. 2008 Robocall Amendment for 

Charitable Solicitations 

Pursuant to the Uniting and 

Strengthening America by Providing 

Appropriate Tools Required to Intercept 

and Obstruct Terrorism Act (‘‘USA 

PATRIOT Act’’),17 the Commission 

amended the TSR in 2003 to extend its 

coverage to telemarketing calls soliciting 

charitable contributions.18 As part of 

that amendment, the Commission 

defined ‘‘donor’’ as ‘‘any person 

solicited to make a charitable 

contribution.’’ 19 The Commission 

declined to limit the definition of donor 

to those who have ‘‘an established 

business relationship with the nonprofit charitable organization.’’ 20 The 

Commission stated its intent was for the 

term ‘‘donor. . .[to] encompass not only 

those who have agreed to make a 

charitable contribution but also any 

person who is solicited to do so, to be 

consistent with [the Rule’s] use of the 

term ‘customer.’ ’’ 21

In 2008, the Commission amended the 

TSR to prohibit robocalls soliciting 

charitable donations unless the robocall 

was delivered to a ‘‘member of, or 

previous donor to, a non-profit 

charitable organization on whose behalf 

the call is made’’ and the seller or 

telemarketer otherwise complied with 

the provisions of § 310.4(b)(1)(v)(B).22 In 

allowing robocalls to previous donors, 

the Commission stated it was 

recognizing the strong interests of nonprofit charitable organizations in 

reaching those with ‘‘whom the charity 

has an existing relationship—i.e., 

members of, or previous donors to[,] the 

non-profit organization on whose behalf 

the calls are made . . . .’’ 23 The 

Commission concluded that allowing 

‘‘telefunders to make impersonal 

prerecorded cold calls on behalf of 

charities that have no prior relationship 

with the call recipients . . . would 

defeat the amendment’s purpose of 

protecting consumers’ privacy.’’ 24

Although the Commission’s Statement 

of Basis and Purpose for the 2008 

Amendment makes clear the 

Commission intended previous donor to 

mean a donor who has previously 

provided a charitable contribution to the 

particular non-profit charitable 

organization, the Commission did not 

include a definition of the term 

‘‘previous donor’’ to explicitly effect 

that intention. 

Because the TSR’s definition of donor 

is ‘‘any person solicited to make a 

charitable contribution,’’ the 

Commission’s 2008 Amendment could 

be misinterpreted as allowing a 

telemarketer to send robocalls to any 

consumer it had previously solicited for 

a donation on behalf of a non-profit 

charitable organization, regardless of 

whether the consumer actually agreed to 

donate to that charitable organization. 

Thus, the Commission proposes to add 

a new definition of ‘‘previous donor’’ to 

clarify the exemption, explicitly 

referencing consumers from whom the 

non-profit charitable organization has 

received a donation in the last two 

years.25

B. TSR’s Recordkeeping Provisions 

Regulatory History 

Since the Commission promulgated 

the TSR in 1995, it has not made 

substantial changes to its recordkeeping 

requirements under § 310.5. The TSR 

generally requires telemarketers and 

sellers to keep for a 24-month period 

records of: (1) Any substantially 

different advertisement, including 

telemarketing scripts; (2) lists of prize 

recipients, customers, and telemarketing 

employees directly involved in sales or 

solicitations; and (3) all verifiable 

authorizations or records of express 

informed consent or express 

agreement.26 They may keep the records 

in any form and in the same manner and 

format as they would keep such records 

in the ordinary course of business, and 

they may allocate responsibilities of 

complying with the Rule’s 

recordkeeping requirements between 

the seller and telemarketer.27

During its 2003 and 2010 rulemaking 

processes, the Commission considered 

whether it should modify the 

recordkeeping provisions in tandem 

with the substantive amendments under 

consideration.28 In each instance, 

however, the Commission declined to 

make substantial modifications to that 

provision, deeming such changes 

unnecessary to enact the substantive 

amendments it was promulgating.29 In 

its 2003 Amendment adding the DNC 

provisions and extending the TSR to 

charitable solicitations, the Commission 

inserted a reference to ‘‘solicitations’’ in 

§ 310.5(a)(4) to require telemarketers 

and sellers to keep records of employees 

involved in charitable solicitations.30 It 

also inserted the phrase ‘‘express 

informed consent or express agreement’’ 

in § 310.5(a)(5) to require sellers and 

telemarketers to keep records of those 

agreements, in addition to verifiable 

authorizations, since those agreements 

were newly added terms in the 2003 

amendments.31 For its 2010 

Amendment, the Commission noted the 

existing recordkeeping requirements 

would extend to new providers of debt 

relief services as a result of the 

Amendment.32

In 2015, the Commission amended the 

TSR to expressly state a seller or 

telemarketer bears the burden of 

demonstrating that a seller has an 

existing business relationship (‘‘EBR’’) 

with a consumer whose number is on 

the Commission’s Do Not Call (‘‘DNC’’) 

Registry, or has obtained express written 

agreement (‘‘EWA’’) from such a 

consumer, as required by 

§ 310.4(b)(1)(iii)(B)(1)–(2).33 The 

Commission stated that these two 

amendments reflected existing law, but 

the Commission adopted the 

amendments to make clear the burden 

of proof was on sellers and 

telemarketers to assert these affirmative 

defenses.34 The Commission also 

reiterated this carve out from the DNC 

prohibitions applies only to sellers ‘‘that 

obtained the EWA directly from, or has 

an EBR directly with, the person 

called.’’ 35 The Commission, however, 

did not amend the recordkeeping 

requirements to clarify what records a 

seller or telemarketer must keep to 

assert these affirmative defenses, 

believing that telemarketers and sellers 

would naturally maintain such records 

in the ordinary course of business 


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33680 Federal Register / Vol. 87, No. 107 / Friday, June 3, 2022 / Proposed Rules 

36See, e.g., Prepared Statement of the Federal 

Trade Commission Before the United States Senate 

Aging Committee on Commerce Science and 

Transportation: Abusive Robocalls and How We 

Can Stop Them (Apr. 18, 2018), available at https:// 

www.ftc.gov/system/files/documents/public_

statements/1366628/p034412_commission_

testimony_re_abusive_robocalls_senate_

04182018.pdf (last visited Jan. 31, 2022). From 2016 

to 2020, the Commission received on average over 

5.5 million Do Not Call complaints per year, and 

the DNC Registry currently has over 240 million 

active telephone numbers. FTC, Do Not Call Data 

Book 2020 (‘‘2020 DNC Databook’’), at 6 (Oct. 2020), 

available at https://www.ftc.gov/system/files/ 

documents/reports/national-do-not-call-registrydata-book-fiscal-year-2020/dnc_data_book_

2020.pdf (last visited Jan. 31, 2022). By comparison, 

within one year of its launch, the DNC Registry had 

over 62 million active telephone numbers 

registered, and the Commission received over 

500,000 Do Not Call complaints. See Annual Report 

to Congress for FY 2003 and 2004 Pursuant to the 

Do Not Call Implementation Act on Implementation 

of the National Do Not Call Registry, at 3 (Sept. 

2005), available at https://www.ftc.gov/sites/ 

default/files/documents/reports/national-do-notcall-registry-annual-report-congress-fy-2003-and-fy2004-pursuant-do-not-call/051004dncfy0304.pdf 

(last visited Jan. 31, 2022); National Do Not Call 

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

2009), available at https://www.ftc.gov/sites/ 

default/files/documents/reports_annual/fiscal-year2009/091208dncadatabook.pdf (last visited Jan. 31, 

2022). 

37See infra Section V.C. and note 95. 

38See supra notes 5–13. 

39See Enforcement of the Do Not Call Registry, 

available at https://www.ftc.gov/news-events/ 

media-resources/do-not-call-registry/enforcement 

(last visited Jan. 31, 2022). 

40 16 CFR 310.5(a). 

41 In this NPRM, a voice service provider broadly 

refers to any provider of telephony services, 

including telecommunications carriers, 

interconnected VoIP service providers, and any 

other voice service providers. 

42See supra note 36. On June 25, 2019, the FTC 

announced ‘‘Operation Call it Quits,’’ which 

included 94 actions against illegal robocallers, 

many of which used spoofing technology. See Press 

Release, FTC, Law Enforcement Partners Announce 

New Crackdown on Illegal Robocalls (June 25, 

2019), available at https://www.ftc.gov/newsevents/press-releases/2019/06/ftc-law-enforcementpartners-announce-new-crackdown-illegal (last 

visited Jan. 31, 2022). 

43 Id. 

44 In other instances, voice providers assert it is 

cost prohibitive to retrieve because they only 

maintain records in an easily retrievable format for 

several months before archiving them in the 

ordinary course of business. 

without affirmatively being required to 

do so. 

The telemarketing landscape has 

changed drastically since the 

Commission promulgated the Rule’s 

original recordkeeping provisions. 

Technological advancements have made 

it easier and cheaper for unscrupulous 

telemarketers to engage in illegal 

telemarketing, resulting in a greater 

proliferation of unwanted calls.36

Technological advancements have also 

reduced the burden and costs of 

recordkeeping.37 While the Commission 

has made substantial amendments to the 

TSR over the last 25 years to address the 

rise in unwanted calls—including by 

identifying new abusive and deceptive 

telemarketing practices such as 

prohibiting robocalls and calls to 

consumers on the DNC Registry 38—the 

TSR’s recordkeeping provisions have 

remained largely static. As such, they no 

longer adequately meet the needs of the 

Commission’s law enforcement mission 

to protect consumers. 

C. Law Enforcement Challenges in 

Enforcing the TSR 

To date, the Commission has brought 

more than 150 enforcement actions 

against companies and telemarketers 

under the TSR for DNC, robocall, 

spoofed caller identification (‘‘caller 

ID’’), and assisting and facilitating 

violations.39 In bringing those cases, the 

Commission has identified several 

challenges in obtaining the necessary 

records to determine whether a 

particular telemarketing campaign is 

covered by and compliant with the TSR, 

which entities are involved in the 

telemarketing campaign, and which 

consumers have been harmed by 

violations of the TSR. 

The primary hurdles are in: (1) 

Identifying the telemarketer and seller 

responsible for the telemarketing 

campaign; (2) obtaining records of the 

telemarketing calls reflecting the date, 

time, duration, and disposition of each 

call, as well as the phone number(s) that 

placed and received each call (i.e. ‘‘call 

detail records’’); and (3) linking the 

content of the telemarketing calls with 

the call detail records to determine 

which TSR provisions might apply to 

the telemarketing activity. 

The TSR currently requires 

telemarketers and sellers to retain 

records of ‘‘all substantially different 

advertising, brochures, telemarketing 

scripts and promotional materials’’ used 

in their telemarketing activities.40 It 

does not require sellers or telemarketers 

to keep other records of their 

telemarketing activities including call 

detail records or records of the nature of 

their telemarketing campaigns, such as 

whether the campaign used prerecorded 

messages, placed calls to consumers 

(‘‘outbound telemarketing’’) or induced 

calls from consumers through 

advertising (‘‘inbound telemarketing’’), 

or solicited from consumers or 

businesses. Nor does it require 

telemarketers or sellers to keep records 

that link a particular telemarketing 

campaign to a set of call detail records. 

The Commission’s law enforcement 

experience has shown, absent a 

recordkeeping requirement, it is 

increasingly difficult to obtain these 

critical records and associate the records 

with the nature, purpose, or content of 

a particular telemarketing campaign, 

frustrating the Commission’s law 

enforcement efforts. As discussed 

below, the Commission proposes 

recordkeeping requirements that ensure 

it is able to adequately assess whether 

a telemarketing campaign complies with 

the TSR and remedy the current gaps 

impeding effective law enforcement. 

When the TSR was promulgated in 

1995, the Commission relied on 

consumer complaints about unwanted 

calls to evaluate whether a particular 

telemarketing campaign likely violated 

the TSR and warranted further 

investigation. It also relied on consumer 

complaints to identify the relevant 

telemarketer responsible for making the 

calls. Specifically, the Commission 

could use the calling number included 

in the consumer’s complaint to identify 

the voice service provider (‘‘voice 

provider’’) 41 responsible for sending the 

call and send a civil investigative 

demand (‘‘CID’’) to the voice provider in 

question to identify the responsible 

telemarketer through the voice 

provider’s billing records. The 

Commission could also obtain the voice 

provider’s call detail records for that 

telemarketer and use that data as a 

proxy for the seller’s or telemarketer’s 

telemarketing campaign. 

The proliferation of new technologies 

over the years has enabled bad actors to 

‘‘spoof’’ or fake a calling number and 

send calls cheaply from within the 

United States and abroad.42 As a result, 

bad actors have sent increasingly large 

numbers of unlawful spoofed calls, 

making it more difficult for law 

enforcement to identify the telemarketer 

and seller responsible for a particular 

telemarketing campaign and obtain the 

applicable call detail records.43 For 

example, to identify a suspect 

telemarketer using ‘‘spoofed’’ calls, the 

Commission needs to issue CIDs to 

multiple voice providers in order to 

trace the call from the consumer to the 

telemarketer’s voice provider. In some 

instances, by the time the Commission 

has identified the relevant voice 

provider, the voice provider may not 

have retained the records.44 As such, the 

call detail records either no longer exist 

or are not available for law enforcement 

purposes, and the Commission cannot 

identify the bad actor responsible for the 

spoofed calls. While the Commission 

has employed other tools to successfully 

identify and take action against 

telemarketers violating the law, the 

absence of call detail records can 

present challenges, particularly in 


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45 In March 2020, the FCC adopted new rules 

requiring all originating and terminating voice 

providers to adopt the implementation of caller ID 

authentication using technical standards known as 

‘‘STIR/SHAKEN’’ in their internet Protocol (IP) 

portions of their networks by June 30, 2021 to 

reduce the number of spoofed robocalls. See FCC, 

Press Release, FCC Mandates That Phone 

Companies Implement Caller ID Authentication to 

Combat Spoofed Robocalls (Mar. 31, 2020), 

available at https://docs.fcc.gov/public/ 

attachments/DOC-363399A1.pdf (last visited Jan. 

31, 2022). The FCC is also exploring whether to 

expand the mandate to intermediate voice providers 

and whether adoption of similar standards on the 

non-IP portions of voice provider networks is 

feasible. Id. While the adoption of STIR/SHAKEN 

standards will provide a means of authenticating 

the caller ID information for some calls, spoofed 

calls will continue to challenge law enforcement in 

the future. 

46 16 CFR 310.5(a)(1). 

47 Voice providers frequently state that their call 

detail records contain the calling number, or the 

phone number that actually placed the call, but 

they do not have information on the name that the 

telemarketer chooses to submit to the call 

recipient’s caller identification service, which 

provides caller identification name information to 

the call recipient. 

48 16 CFR 310.6(b)(5) and (6) (e.g., inbound 

telemarketing calls regarding prize promotions, 

investment opportunities, and debt relief services, 

among others, are excluded from the inbound 

telemarketing exemption). 

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

77555–56. 

demonstrating violations of the TSR’s 

do-not-call provisions.45

Even when the Commission is 

successful in obtaining the call detail 

records from the voice provider and 

identifying the seller or telemarketer 

responsible for the telemarketing 

campaign, that information is limited. 

As noted above, call detail records 

typically include only: (1) The phone 

number that placed the call (‘‘calling 

number’’); (2) the phone number that 

received the call (‘‘called number’’); (3) 

the date, time, and duration of the call; 

and (4) the disposition of the call (i.e., 

was the call answered or connected, 

transferred to another phone number, 

disconnected or dropped). The records 

do not contain other important 

information, including the purpose of 

the call, the identity of the seller or 

charitable organization, or the nature of 

the call, such as whether the 

telemarketer used prerecorded 

messages. Although sellers and 

telemarketers are required to keep 

records of their advertisements, such as 

telemarketing scripts, which may 

include information on the purpose of 

the call or the identity of the seller, they 

are not currently required to maintain 

records that identify the specific 

telemarketing campaign in which they 

used each advertisement or the 

associated call detail records.46

The lack of records linking the call 

detail records to the nature, purpose, 

and content of the telemarketing 

campaign presents challenges to law 

enforcement. Without this link, it is 

difficult for the Commission to 

ascertain, among other issues: (1) The 

seller or charitable organization for 

which the telemarketer is placing calls; 

(2) the good or service the telemarketer 

is offering for sale or the charitable 

purpose for which the telemarketer is 

soliciting contributions; (3) whether the 

telemarketer used robocalls, was 

telemarketing to consumers or 

businesses, or the caller ID,47 if any, 

they transmitted in outbound telephone 

calls; and (4) the representations made 

during the call. Moreover, without 

information linking the call detail 

records to a particular telemarketing 

campaign, the Commission cannot tell 

when the telemarketing campaigns 

began and ended or how many calls the 

telemarketer made in a particular 

telemarketing campaign. 

In the FTC’s law enforcement 

experience, sellers and telemarketers 

often claim they cannot provide this 

information because they do not keep 

call detail records or records associating 

a telemarketing campaign with the voice 

provider’s call detail records. For 

example, telemarketers typically assert 

the voice provider’s call detail records 

include both their telemarketing and 

non-telemarketing calls (i.e., non-sales 

calls) but they cannot identify those that 

are telemarketing calls because they do 

not keep such records. In other 

instances, telemarketers who run 

telemarketing campaigns on behalf of 

numerous sellers or non-profit 

charitable organizations assert they 

cannot identify the telemarketing calls 

they made on behalf of a particular 

client. Without such information, the 

Commission cannot readily determine 

whether all the calls pertain to a 

particular telemarketing campaign the 

Commission is seeking information 

about or if the calls are for an unrelated 

seller and telemarketing campaign. 

The ability to associate relevant call 

detail records with information on the 

nature and content of the call is also 

critical for inbound telemarketing 

campaigns. Although many such calls 

are exempt from the TSR under 

§ 310.6(b)(4) through (b)(6), the 

exemptions do not apply to all inbound 

telemarketing calls and many such calls 

must still comply with the TSR.48

Telemarketers frequently claim the 

voice provider’s records of their 

inbound calls (when they exist) do not 

uniformly reflect calls that would be 

subject to the TSR. For example, they 

claim the voice providers’ records of 

inbound calls include customer service 

calls that would be exempt from the 

TSR. 

Sellers or telemarketers are in the best 

position to have information about their 

telemarketing calls. Thus, the 

Commission proposes new 

recordkeeping requirements that require 

sellers and telemarketers to retain 

records of this information. Such 

records are important in enabling the 

Commission to ascertain what sections 

of the TSR apply to their telemarketing 

campaigns and whether the 

telemarketing campaigns are compliant 

with the TSR. 

The Commission also proposes to 

clarify existing recordkeeping 

requirements to address telemarketers’ 

and sellers’ frequent assertion that the 

TSR does not apply to their 

telemarketing campaigns because one of 

the TSR exemptions applies. Commonly 

asserted defenses to the FTC’s law 

enforcement actions include that the 

calls were sales calls to business entities 

and not consumers, the seller or 

telemarketer has an EBR or EWA to 

make calls to consumers registered on 

the DNC Registry, or the seller has an 

express agreement, in writing, 

authorizing that particular seller to 

place robocalls to a consumer. Another 

frequently asserted defense is the 

consumer never requested to be placed 

on the entity-specific do-not-call list, 

made the request only after the 

telemarketing call had been made, or the 

consumer had asked to be placed on the 

entity-specific do-not-call list for one 

seller but the telemarketer had made 

subsequent calls on behalf of a different 

seller. 

While the Commission has amended 

the TSR to address some of these 

defenses, making clear the seller or 

telemarketer bears the burden of 

proof,49 some sellers and telemarketers 

still assert the defense in response to 

law enforcement inquiries even if their 

records are incomplete. For example, in 

some instances, the telemarketer’s 

purported proof of a consumer’s express 

written agreement is simply a list of the 

consumers’ IP addresses and 

timestamps of the purported agreement. 

The Commission does not believe that 

information is sufficient proof to 

demonstrate a consumer has provided 

express written agreement to receive 

robocalls or to receive outbound 

telemarketing calls when a consumer 

has placed her phone number on the 

FTC’s DNC Registry. Thus, in addition 

to proposing new recordkeeping 

requirements, the Commission also 

proposes amending existing 


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50See 2014 TSR Rule Review, 79 FR 46732, 

46735 (Aug. 11, 2014). 

51 Id. 

52 Id. at 46738. 

53The public comments submitted in response to 

the 2014 TSR Rule Review are available at https:// 

www.ftc.gov/policy/public-comments/2014/08/ 

initiative-578 (last visited Jan. 31, 2022). 

54 DOJ, No. 00111, at 1. DOJ notes that multiple 

defendants have ‘‘asserte[d] as a defense the 

inaccuracies of their own telemarketing call 

records.’’ Id. (emphasis in original). 

55 Id. at 2. 

56NAAG, No. 00117, at 11–12. 

57 Id. at 12. 

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

59AARP, No.00097, at 5. 

60West Italian, No. 00113, at 3. 

61See, e.g., Professional Association for Customer 

Engagement (‘‘PACE’’), No. 00107, at 5; American 

Bankers Insurance Association (‘‘ABIA’’), No. 

00106, at 1, 3; National Automobile Dealers 

Association (‘‘NADA’’), No. 00112, at 2. 

62See American Resort Development Association 

(‘‘ARDA’’), No.00100, at 7; Association of Magazine 

Media (‘‘MPA’’), No. 00116, at 4. 

63MPA, No. 00116, at 4. 

64 Id. 

65Original TSR, 60 FR at 43867. 

66Original TSR at 43861. 

67 Id. 

68 2002 notice of proposed rulemaking, 67 FR at 

4500. ‘‘internet Services’’ meant any service that 

allowed a business to access the internet, including 

internet service providers, providers of software 

and telephone or cable connections, as well as 

services that provide access to email, file transfers, 

websites, and newsgroups. Id. ‘‘Web services’’ was 

defined as ‘‘designing, building, creating, 

publishing, maintaining, providing, or hosting a 

website on the internet.’’ Id. The Commission 

intended for the term internet services to 

encompass any and all services related to accessing 

the internet and the term web services to 

encompass any and all services related to operating 

a website. Id. 

recordkeeping provisions to provide 

further guidance and clarification on the 

type of information necessary to assert 

an applicable affirmative defense. 

D. Public Comments on Recordkeeping 

In 2014, the Commission embarked on 

a regulatory review of the TSR, in which 

it sought feedback on a number of issues 

including the existing recordkeeping 

requirements.50 It raised some of the 

challenges the Commission has faced in 

bringing enforcement actions under the 

TSR, including the difficulty in 

obtaining call detail records, and sought 

feedback on whether the current 

recordkeeping requirements are 

sufficient for law enforcement agencies 

to enforce the Rule’s DNC provisions.51

Specifically, the Commission raised the 

possibility of requiring sellers and 

telemarketers to ‘‘retain records of the 

telemarketing calls they have placed’’ to 

address the Commission’s ongoing law 

enforcement challenges. It asked for 

public comments on: (1) The cost and 

burden that the lack of such a 

requirement imposed on law 

enforcement and consumers, (2) the cost 

and burden such a provision would 

impose, particularly for small 

businesses, and (3) whether there is an 

alternative solution that would reduce 

the law enforcement challenges and 

minimize the burden on industry.52

The Commission received comments 

from other state and federal law 

enforcement agencies confirming the 

problems the Commission has 

experienced in enforcing the TSR are 

not unique to the agency.53 The 

Department of Justice (‘‘DOJ’’) cited 

‘‘extreme difficulties’’ in obtaining call 

records from voice providers that 

provide usable information because they 

‘‘may contain, among other things, nontelemarketing calls’’ or calls by 

telemarketers for other clients not 

targeted in the investigation.54 DOJ also 

argued the burden of keeping call detail 

records would be ‘‘slight’’ since 

‘‘computer data storage prices are no 

longer an obstacle to maintaining 

records,’’ and stated it is ‘‘confident that 

most, if not all, reputable sellers and 

telemarketers currently maintain 

accurate records of their outbound 

calls.’’ 55

The National Association of Attorneys 

General (‘‘NAAG’’) stated in its 

experience subpoenas to voice providers 

are ‘‘time-consuming and frequently 

fruitless,’’ with those served on offshore 

voice providers going unanswered and 

U.S. voice providers either refusing to 

provide the records or requesting an 

‘‘exorbitant fee for doing so.’’ 56 NAAG 

also argued ‘‘savings realized by 

telemarketers’’ from modern dialing 

technologies ‘‘should not be realized at 

the expense of law enforcement’s 

resources and consumer protection.’’ 57

Consumer advocacy groups concurred 

that requiring the retention of outbound 

call detail records would benefit 

consumers. The National Consumer Law 

Center, Consumer Federation of 

America, Americans for Financial 

Reform, Consumers Union, Consumer 

Action, Consumer Federation of 

California, The Maryland Consumer 

Rights Coalition, National Association 

of Consumer Advocates, U.S. PIRG, 

Virginia Citizens Consumer Council, 

and Consumer Assistance Council, Inc. 

of Cape Cod and the Islands 

(collectively, ‘‘NCLC, et al.’’) submitted 

a joint comment supporting a 

recordkeeping requirement for all 

outbound telemarketing calls, and 

further advocating sellers and 

telemarketers should also be required to 

record the entirety of all completed calls 

so it is possible to examine the ‘‘overall 

net impression’’ of the representations 

made to determine if they are unfair or 

deceptive.58 AARP argued that in 

addition to call detail records, sellers 

and telemarketers should also maintain 

complete recordings of calls to ‘‘ease the 

burden on federal and state enforcers as 

well as make it easier for citizens to 

bring private cases.’’ 59 Another 

commenter also noted ‘‘TCPA plaintiffs 

would benefit from companies keeping 

internal records.’’ 60

Industry comments generally opposed 

any mandatory requirement to maintain 

call detail records, arguing that 

imposing such a requirement would be 

overly burdensome, particularly for 

small businesses.61 None of the industry 

comments, however, provided concrete 

information or data on the costs 

associated with requiring telemarketers 

to maintain call detail records, nor did 

they suggest any alternative solutions 

that address the Commission’s law 

enforcement challenges while 

minimizing the burden on industry. 

Additionally, a few industry 

comments confirmed some businesses 

are already requiring telemarketers to 

retain call detail records in the regular 

course of business.62 Notably, the 

Association of Magazine Media 

(‘‘MPA’’) supported requiring 

‘‘telemarketers to retain their own call 

records’’ as a ‘‘reasonable and workable 

approach.’’ 63 MPA also stated ‘‘[s]ome 

magazine publishers are currently 

requiring third party telemarketing 

providers to maintain outbound call 

records for three years,’’ and argued 

recordkeeping requirements would 

provide ‘‘an added layer of transparency 

that further blocks opportunities for 

fraudulent behavior.’’ 64

E. The Business-to-Business Exemption 

The Original TSR included an 

exemption for B2B calls other than B2B 

calls that sold office and cleaning 

supplies.65 The Commission decided 

not to exempt from the TSR B2B calls 

that sold office and cleaning supplies 

because, in the Commission’s 

experience, those calls were ‘‘by far the 

most significant business-to-business 

problem’’ at the time.66 The 

Commission also commented it would 

‘‘reconsider that position if additional 

business-to-business telemarketing 

activities become problems after the 

Final Rule has been in effect.’’ 67

In 2003, the Commission reconsidered 

the scope of the B2B exemption and 

issued a Notice of Proposed Rulemaking 

that would require B2B sales of internet 

or web services to also comply with the 

TSR.68 The Commission explained the 

sale of these services had ‘‘increased 

dramatically’’ and these product areas 


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69 Id. at 4531. 

70 2003 TSR Amendments 68 FR at 4663. 

71 Id. 

72A 2018 survey conducted by the Better 

Business Bureau revealed that the same scams that 

harm consumers, such as tech support scams and 

imposter scams, also harm small businesses, and 

that 57% of scams that impact small businesses are 

perpetrated through telemarketing. Better Business 

Bureau, Scams and Your Small Business Research 

Report, at 9–10 (June 2018), available at https://

www.bbb.org/SmallBizScams (last visited Jan. 31, 

2022). 

73See, e.g., FTC v. Your Yellow Book Inc., No. 

14–cv–786–D (W.D. Ok. July 24, 2014), available at 

https://www.ftc.gov/system/files/documents/cases/ 

140807youryellowbookcmpt.pdf (last visited Jan. 

31, 2022); FTC v. OnlineYellowPagesToday.com, 

Inc., No. 14–cv–0838 RAJ (W.D. Wa. June 9, 2014), 

available at https://www.ftc.gov/system/files/ 

documents/cases/ 

140717onlineyellowpagescmpt.pdf (last visited last 

visited Jan. 31, 2022); FTC v. Modern Tech. Inc., et. 

al., No. 13–cv–8257 (Nov. 18, 2013) available at 

https://www.ftc.gov/sites/default/files/documents/ 

cases/131119yellowpagescmpt.pdf (last visited Jan. 

31, 2022); FTC v. 6555381 Canada Inc. d/b/a Reed 

Publishing, No. 09–cv–3158 (N.D. Ill. May 27, 2009) 

available at https://www.ftc.gov/sites/default/files/ 

documents/cases/2009/06/090602reedcmpt.pdf 

(last visited Jan. 31, 2022); FTC v. 6654916 Canada 

Inc. d/b/a Nat’l. Yellow Pages Online, Inc., No. 09– 

cv–3159 (N.D. Ill. May 27, 2009), available at 

https://www.ftc.gov/sites/default/files/documents/ 

cases/2009/06/090602nypocmpt.pdf (last visited 

Jan. 31, 2022); FTC v. Integration Media, Inc., No. 

09–cv–3160 (N.D. Ill. May 27, 2009), available at 

https://www.ftc.gov/sites/default/files/documents/ 

cases/2009/06/090602goamcmpt.pdf (last visited 

Jan. 31, 2022); FTC v. Datacom Mktg. Inc., et. al., 

No. 06–cv–2574 (N.D. Ill. May 9, 2006), available 

at https://www.ftc.gov/sites/default/files/ 

documents/cases/2006/05/060509datacom

complaint.pdf (last visited Jan. 31, 2022); FTC v. 

Datatech Commc’ns, Inc., No. 03–cv–6249 (N.D. Il. 

Aug. 3, 2005) (filing amended complaint), available 

at https://www.ftc.gov/sites/default/files/ 

documents/cases/2005/08/ 

050825compdatatech.pdf (last visited Jan. 31, 

2022); FTC v. Ambus Registry, Inc., No. 03–cv–1294 

RBL (W.D. Wa. June 16, 2003), available at https:// 

www.ftc.gov/sites/default/files/documents/cases/ 

2003/07/ambuscomp.pdf (last visited Jan. 31, 2022). 

74See 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/2003/08/030812contempmercury

marketing.pdf (last visited Jan. 31, 2022). 

75See, 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). 

76See, 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). 

77See, 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). 

78See Press Release, FTC, BBB, and Law 

Enforcement Partners Announce Results of 

Operation Main Street: Stopping Small Business 

Scams Law Enforcement and Education Initiative 

(June 18, 2018), available at https://www.ftc.gov/ 

news-events/press-releases/2018/06/ftc-bbb-lawenforcement-partners-announce-results-operationmain (last visited Jan. 31, 2022). 

79The ANPR is published elsewhere in this issue 

of the Federal Register. 

80Among other things, it would require 

telemarketers to ensure their recordkeeping systems 

comply with the TSR’s requirements, pay fees to 

access the National Do Not Call Registry, and 

provide mandatory disclosures in telemarketing 

calls. See, e.g., 16 CFR 310.3(a)(1) (required 

disclosures); 310.5 (recordkeeping requirements); 

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

81See 15 U.S.C. 6102(a); 2003 TSR Amendments, 

68 FR at 4612. The Commission assesses abusive 

telemarketing practices using its traditional 

unfairness analysis. See, e.g., 2013 Notice of 

Proposed Rulemaking, 78 FR 41201 (July 9, 2013). 

82 310.3(a)(2) prohibits, among other things, 

misrepresenting: The total cost to purchase a good 

or service, material restrictions on the use of the 

good or service, material aspects of the central 

characteristics of the good or service, material 

aspects of the seller’s refund policy, or the seller’s 

affiliation with or endorsement by any person or 

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

through (vii). 

83Original TSR at 43848. The Commission added 

§ 310.3(a)(2)(x) in 2010. 2010 TSR Amendments, 75 

FR at 48498. This section contains prohibitions 

‘‘related to the sale of debt relief services,’’ which 

the Commission also determined are likely to be 

material and misleading. 

84 Id. at 43851. The Commission created a broad 

prohibition to ‘‘provide[ ] law enforcement with 

flexibility to address new ways that sellers and 

telemarketers engaged in fraud might attempt to 

take consumers’ money.’’ Id. 

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

‘‘ha[d] emerged as one of the leading 

sources of complaints.’’ 69 The 

Commission ultimately decided not to 

modify the B2B exemption because the 

Commission wanted to ‘‘move 

cautiously so as not to chill innovation 

in the development of cost-efficient 

methods for small businesses to join in 

the internet marketing revolution.’’ 70

The Commission again noted it would 

‘‘continue to monitor closely’’ the B2B 

telemarketing practices in this area and 

‘‘may revisit the issue in subsequent 

Rule Reviews should circumstances 

warrant.’’ 71

Since 2003, the Commission has 

continued to see businesses harmed by 

deceptive B2B telemarketing. Deceptive 

B2B telemarketing comes in many 

forms,72 including schemes that sell 

business directory listings,73 web 

hosting or design services,74 search 

engine optimization services,75 and 

market-specific advertising 

opportunities,76 as well as schemes that 

impersonate the government.77 For 

example, some of these schemes were 

the subject of a coordinated FTC-led 

crackdown on scams targeting small 

businesses, called ‘‘Operation Main 

Street,’’ announced in June of 2018.78

The Commission believes it is now time 

to reassess the B2B exemption and 

address problems associated with B2B 

telemarketing. 

The Commission is issuing an ANPR 

that seeks comments on the B2B 

exemption generally, including 

comments addressing whether the 

Commission should remove the 

exemption entirely.79 The Commission 

recognizes requiring all B2B calls to 

comply with all TSR requirements 

would be a significant change that will 

require careful consideration.80 While 

that process is underway, the 

Commission proposes in this NPRM to 

require all B2B telemarketing calls to 

comply with the TSR’s existing 

prohibitions on misrepresentations 

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

When the Commission issues a rule 

prohibiting deceptive practices pursuant 

to the Telemarketing Act, the 

Commission assesses whether the rule 

prohibits conduct that involves a 

material representation likely to mislead 

consumers acting reasonably under the 

circumstances.81 When the Commission 

included the prohibition on specific 

material misrepresentations 82 in 

§ 310.3(a)(2) of the original TSR, the 

Commission identified these particular 

misrepresentations ‘‘based on 

established case law and the 

Commission’s policy statement on 

deception.’’ 83 The prohibition in 

§ 310.3(a)(4) on making false or 

misleading statements to induce any 

person to pay for goods or services or 

induce a charitable contribution was 

included to prohibit sellers ‘‘from 

gaining access to consumers’ money 

through false and misleading 

statements.’’ 84 The prohibitions in 

§ 310.3(a)(2) and (4) have been critical 

tools in the Commission’s efforts to 

combat deceptive telemarketing. 

The Commission is of the view that 

requiring B2B calls to comply with 

these provisions should not impose any 

burden on the telemarketing industry 

because Section 5 of the FTC Act 

generally prohibits telemarketers from 

making misrepresentations when they 

sell products or solicit charitable 

contributions.85 As noted above, the 

Commission is not, at this time, 

proposing B2B sellers and telemarketers 

comply with other provisions of the 

TSR, such as the TSR’s recordkeeping 

requirements, or the requirements that 


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86See 16 CFR 310.5 (recordkeeping 

requirements); § 310.8 (fee for access to the Do Not 

Call Registry). 

87As discussed in Sections III.A.3 and III.A.4, the 

proposed amendments requiring records of EBR or 

previous donor status will only apply if a seller or 

telemarketer intends to assert that a consumer has 

an EBR with the seller or is a previous donor to a 

particular charitable organization. 

88Soundboard technology is technology that 

allows a live agent to communicate with a call 

recipient by playing recorded audio snippets 

instead of using his or her own live voice. See FTC 

Staff Opinion Letter on Soundboard Technology, at 

1 (Nov. 10, 2016), available at https://www.ftc.gov/ 

system/files/documents/advisory_opinions/letterlois-greisman-associate-director-division-marketingpractices-michael-bills/161110staffopsound

boarding.pdf (last visited Jan. 31, 2022). 

89See infra Section IV.B.4. 

90See infra Section III.B.6 (clarifying that a failure 

to keep one record constitutes one violation of the 

TSR). 

91See supra Section II.C 

92See supra Section II.C–D. 

sellers and telemarketers access the Do 

Not Call Registry and pay fees.86

III. Proposed Revisions 

The Commission proposes amending 

the § 310.5 recordkeeping provisions to 

require sellers and telemarketers to 

maintain additional records of their 

telemarketing activities. The proposed 

amendments identify specific records 

that, in the Commission’s law 

enforcement experience, are difficult for 

the Commission to obtain if the 

telemarketer or seller does not maintain 

these records, but are necessary for the 

Commission to ensure compliance with 

the TSR. 

The proposed amendments also 

clarify certain of the existing 

recordkeeping requirements by 

providing additional guidance to sellers 

and telemarketers regarding what the 

Commission considers a complete 

record and the penalties for failing to 

keep such records. In developing the 

proposed amendments, the Commission 

carefully considered the types of records 

sellers and telemarketers likely keep in 

the ordinary course of business, any 

additional burden the proposed 

amendments would impose, and the 

types of records the Commission 

considers necessary to enforce the TSR. 

The Commission also proposes 

amending the exemption for B2B 

telemarketing calls in § 310.6(b)(7) to 

require all such calls to comply with 

§ 310.3(a)(2) and (4). The proposed 

amendments would provide businesses 

the same protections the TSR provides 

consumers against misrepresentations. 

Finally, the Commission proposes 

adding a definition of ‘‘previous donor’’ 

to effectuate its original intent in the 

2008 TSR Amendments. 

The Commission invites written 

comments on the proposed 

amendments, and in particular, seeks 

answers to the questions set forth in 

Section IV below. The written 

comments will assist the Commission in 

determining whether to implement the 

proposed amendments and whether the 

amendments as proposed strike an 

appropriate balance between the goal of 

protecting consumers from deceptive 

and abusive telemarketing and harm 

from imposing compliance burdens. 

A. New Recordkeeping Requirements 

The proposed amendments require 

sellers and telemarketers to retain new 

categories of information the 

Commission considers necessary for it 

to pursue law enforcement actions 

against those who have violated the 

TSR. Specifically, the proposed 

amendments require the retention of the 

following new categories: (1) A copy of 

each unique prerecorded message; (2) 

call detail records of telemarketing 

campaigns; (3) records sufficient to 

show a seller has an established 

business relationship with a consumer; 

(4) records sufficient to show a 

consumer is a previous donor to a 

particular charitable organization; (5) 

records of the service providers a 

telemarketer uses to deliver outbound 

calls; (6) records of a seller or charitable 

organization’s entity-specific do-not-call 

registries; and (7) records of the 

Commission’s DNC Registry that were 

used to ensure compliance with this 

Rule.87

1. Section 310.5(a)(1)—Substantially 

Different Advertising Materials and 

Each Unique Prerecorded Message 

Section 310.5(a)(1) currently requires 

sellers and telemarketers to keep records 

of ‘‘all substantially different 

advertising, brochures, telemarketing 

scripts, and promotional materials.’’ The 

proposed amendments to § 310.5(a)(1) 

would require telemarketers and sellers 

to also keep a copy of each unique 

prerecorded message they use in 

telemarketing, including each call a 

telemarketer makes using soundboard 

technology.88 In the FTC’s law 

enforcement experience, records of each 

unique prerecorded message are 

necessary for the Commission to ensure 

compliance with the TSR. The 

Commission does not believe keeping 

copies of each unique robocall will be 

unduly burdensome because the 

recordings are typically of short 

duration. For calls utilizing soundboard 

technology, the Commission is mindful 

such calls may be of longer duration 

than a typical robocall. As such, the 

Commission seeks comment on the 

burden that may be imposed by 

requiring sellers or telemarketers to 

keep each unique prerecorded message 

involving the use of soundboard 

technology, including how many 

telemarketers employ soundboard 

technology in telemarketing, how many 

calls they make using soundboard 

technology, the average duration of each 

call, and whether the telemarketer 

typically keeps recordings of such calls 

in the ordinary course of business.89

The proposed amendments also 

clarify a copy of each substantially 

different advertising, brochure, 

telemarketing script, promotional 

material, and each unique robocall 

constitutes one record, and failure to 

keep one substantially different version 

of such records is one violation of the 

TSR.90 This provision applies to each 

telemarketing script, including robocall 

and upsell scripts. Telemarketers or 

sellers would be required to keep such 

records for 5 years from the date the 

record is no longer used in 

telemarketing. The Commission is 

proposing to modify this time period so 

it dates from the time the record is no 

longer in use to account for the 

possibility the advertisement may be in 

use for more than 5 years, which would 

exceed the proposed recordkeeping time 

period. 

2. § 310.5(a)(2)—Call Detail Records 

As discussed above, the Commission 

frequently has difficulty obtaining the 

call detail and other records of a seller 

or telemarketer’s telemarketing 

activities.91 Ensuring the availability of 

such records is necessary to enable the 

Commission to adequately determine 

whether the telemarketer or seller is 

complying with the TSR.92

To address these problems, the 

Commission proposes to amend the TSR 

to add § 310.5(a)(2), which would 

require the retention of call detail 

records. Such call detail records 

include, for each call a telemarketer 

places or receives, the calling number; 

called number; time, date, and duration 

of the call; and the disposition of the 

call, such as whether the call was 

answered, dropped, transferred, or 

connected. If the call was transferred, 

the record should also include the 

phone number or IP address the call was 

transferred to as well as the company 

name, if the call was transferred to a 

company different from the seller or 

telemarketer that placed the call. 

The proposed addition of § 310.5(a)(2) 

would require the retention of other 

records that help identify the nature and 

purpose of each call including: (1) The 

identity of the telemarketer who placed 

or received each call; (2) the seller or 


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93See supra Section II.C. 

94See NCLC, No. 00110, at 10 (recommending 

that sellers keep recordings of all outbound calls); 

AARP, No.00097, at 5 (same). In response to the 

FTC’s Advance Notice of Proposed Rulemaking 

Concerning the Use of Prenotification Negative 

Option Plans, 84. FR 52393 (Oct. 2, 2019), a number 

of state attorneys general (‘‘State AGs’’) submitted 

a comment requesting amendments to the TSR to 

address negative option offers. Specifically, the 

State AGs suggested that for all negative option 

offers, sellers and telemarketers should ‘‘record the 

entire transaction and retain it for a specified period 

of time and provide a full refund if the consumer 

[complains] of unauthorized charges, unless the 

company is able to provide the consumer with the 

recording of the phone call establishing the 

consumer’s affirmative consent to be charged.’’ See 

State AGs’ Comment (#0082–0012), available at 

https://www.regulations.gov/comment/FTC-2019- 

0082-0012 (last visited Jan. 31, 2022). For the 

reasons stated above and the reasons stated in 

Section IV.C of the Advance Notice of Proposed 

Rulemaking that the Commission is issuing 

simultaneously with this NPRM, the Commission 

does not believe imposing this requirement is 

necessary. 

95For example, electronic storage can cost $.74 

per gigabyte for onsite storage including hardware, 

software, and personnel costs. See Gartner, Inc. ‘‘IT 

Key Metrics Data 2020: Infrastructure Measures— 

Storage Analysis.’’ Gartner December 18, 2019. 

96A seller may also show it has an established 

business relationship with a consumer if that 

consumer purchased, rented, or leased the seller’s 

goods or services or had a financial transaction with 

the seller during the 18 months before the date of 

the telemarketing call. The Commission is 

modifying the existing recordkeeping provisions to 

state that records of existing customers should also 

include the date of the financial transaction to 

establish EBR under these circumstances. See infra 

Section III.B.3. 

97The Commission also proposes adding a new 

definition of ‘‘previous donor.’’ See supra Section 

II.A. 

charitable organization for which the 

telemarketing call is placed or received; 

(3) the good, service, or charitable 

purpose that is the subject of the call; (4) 

whether the call is to a consumer or 

business, utilizes robocalls, or is an 

outbound call; and (5) the telemarketing 

script(s) and robocall (if applicable) that 

was used in the call. Finally, proposed 

§ 310.5(a)(2) would require the retention 

of records regarding the caller ID 

transmitted if the call was an outbound 

call, including the name and phone 

number that was transmitted, and 

records of the telemarketer’s 

authorization to use the phone number 

and name that was transmitted. 

As stated above, the proposed 

addition of § 310.5(a)(2) is necessary for 

the Commission to determine whether 

the TSR applies to the calls in the 

telemarketing campaign and which 

particular sections of the TSR the seller 

and telemarketer must comply with for 

that particular telemarketing 

campaign.93

Although some consumer advocates 

recommended telemarketers and sellers 

should also be required to retain 

recordings of all their telemarketing 

calls,94 the Commission believes at this 

time, it would be overly burdensome to 

require retention of call recordings of 

each telemarketing call, particularly for 

small businesses. Requiring 

telemarketers and sellers to retain 

records of the substantially different 

telemarketing script(s) and unique 

robocall used in each call should 

provide the Commission with sufficient 

information regarding the content of the 

call, thus striking an appropriate 

balance between the Commission’s 

interest in ensuring compliance with the 

TSR and avoiding the imposition of 

unnecessary burdens on businesses. 

The Commission also believes 

implementing this new provision 

should not be overly burdensome for 

telemarketers or sellers since the cost of 

electronic storage is decreasing over 

time.95 Additionally, given the 

prevalent use of technology such as 

autodialers in telemarketing campaigns, 

the Commission believes telemarketers 

likely already prepare similar call detail 

records in the regular course of business 

and can do so in an automated fashion. 

For the categories of information that 

may not be generated in an automated 

fashion, such as records of which script 

was used in the telemarketing calls, the 

seller’s identity, or other information 

regarding the content of the call, the 

Commission believes telemarketers 

should be able to create a record of this 

information without much difficulty. 

For example, if the script contains 

information about the identity of the 

seller and the product or service being 

sold or the charitable purpose for which 

contributions are being solicited, the 

telemarketer or seller need only keep 

records of which telemarketing script is 

used for a particular telemarketing 

campaign. 

3. § 310.5(a)(5)—Established Business 

Relationship 

As discussed above, the Commission 

proposes adding § 310.5(a)(5) to further 

clarify what records a seller must keep 

in order to ‘‘demonstrate that the seller 

has an established business 

relationship’’ with a consumer. 

Specifically, for each consumer with 

whom a seller asserts it has an 

established business relationship, the 

seller must keep a record of the name 

and last known phone number of that 

consumer, the date the consumer 

submitted an inquiry or application 

regarding that seller’s goods or services, 

and the goods or services inquired 

about.96 The Commission does not 

believe adding this provision to the 

recordkeeping requirements will impose 

any significant burdens on sellers or 

telemarketers because sellers or 

telemarketers must already collect and 

use this information to ensure they are 

complying with the requirements of this 

affirmative defense. They are only being 

asked to retain the records 

demonstrating their compliance. 

4. § 310.5(a)(6)—Previous Donor 

Similar to the EBR requirements 

described above, the Commission also 

proposes adding § 310.5(a)(6) to clarify 

that if a telemarketer intends to assert a 

consumer is a previous donor to a 

particular non-profit charitable 

organization,97 the telemarketer must 

keep a record, for each such consumer, 

of the name and last known phone 

number of that consumer, and the last 

date the consumer donated to the 

particular non-profit charitable 

organization. The Commission does not 

believe this provision will impose any 

new burdens on telemarketers since this 

is information a non-profit charitable 

organization already keeps and 

telemarketers that comply with the TSR 

will likely seek this information in the 

ordinary course of business. 

5. § 310.5(a)(9)—Other Service Providers 

The Commission proposes including a 

new record keeping requirement in 

§ 310.5(a)(9) requiring sellers and 

telemarketers to keep records of all 

service providers the telemarketer uses 

to deliver outbound calls in each 

telemarketing campaign. Such service 

providers include, but are not limited 

to, voice providers, autodialers, subcontracting telemarketers, or 

soundboard technology platforms. The 

Commission does not intend for this 

provision to include every voice 

provider involved in delivering the 

outbound call, but limits this provision 

to the service providers with which the 

seller or telemarketer has a business 

relationship. For each such entity, the 

seller or telemarketer must keep records 

of any applicable contracts, the date the 

contract was signed, and the time period 

the contract is in effect. 

The Commission also proposes that 

the seller or telemarketer maintain such 

records for five years from the date the 

contract expires or five years from the 

date the telemarketing activity covered 

by the contract ceases, whichever is 

shorter. The Commission proposes that 

the telemarketer or seller maintain such 

records for that specified time period to 

provide the Commission and other law 

enforcement agencies sufficient time to 

complete any investigation of 

noncompliance. Such information is 


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98 16 CFR 310.4(b)(3)(iii) and (b)(3)(iv). 

99See infra Section IV.B.9. 

100The records covered by these two sections 

include advertising materials and the service 

providers who assisted in outbound telemarketing, 

respectively. See supra Sections III.A.1 and III.A.5. 

101 16 CFR 310.5(a)(2). 

102The Commission proposes to modify the form 

of this section so that it aligns with the new 

additions to § 310.5(a) but makes no substantive 

changes except adding the prize recipient’s last 

known phone number and last known physical or 

email address as described above. 

103 16 CFR 310.5(a)(3). 

104The Commission proposes to modify the form 

of this section so that it aligns with the new 

additions to § 310.5(a) but makes no substantive 

changes except adding the date the customer 

purchased the good or service, the customer’s last 

known phone number, and the customer’s last 

known physical or email address as described 

above. 

105See generally Federal Trade Commission 2020 

Privacy and Data Security Update, available at 

https://www.ftc.gov/system/files/documents/ 

reports/federal-trade-commission-2020-privacydata-security-update/20210524_privacy_and_data_

security_annual_update.pdf (last visited Jan. 31, 

2022). 

necessary for the Commission to 

determine whether any other entities 

assisted and facilitated in violating the 

TSR. The Commission calculates the 

five-year period from the date the 

contract expires or the date the 

telemarketing activity ceases rather than 

the date the contract was signed to 

account for the possibility the contract 

could be of long-standing duration. The 

Commission does not believe this 

requirement is overly burdensome 

because telemarketers and sellers likely 

keep such records in the ordinary 

course of business. 

6. §§ 310.5(a)(10) and (11)—DNC and 

Entity-Specific DNC 

The NPRM also includes two new 

provisions requiring telemarketers and 

sellers to maintain for five years records 

related to the entity-specific do-not-call 

registry and the FTC’s DNC Registry. For 

the entity-specific do-not-call registry, 

the Commission proposes requiring 

telemarketers and sellers to retain 

records of: (1) The consumer’s name, (2) 

the phone number(s) associated with the 

DNC request, (3) the seller or charitable 

organization from which the consumer 

does not wish to receive calls, (4) the 

telemarketer that made the call; (5) the 

date the DNC request was made; and (6) 

the good or service being offered for sale 

or the charitable purpose for which 

contributions are being solicited. 

For the FTC’s DNC Registry, the 

Commission proposes requiring 

telemarketers or sellers to keep records 

of every version of the FTC’s DNC 

Registry the telemarketer or seller 

downloaded to ensure compliance with 

the TSR. The Commission does not 

believe these two proposed 

recordkeeping requirements impose a 

substantial burden on the telemarketer 

or seller since telemarketers complying 

with the TSR already keep such records 

in the ordinary course of business to 

avail themselves of the TSR’s safe 

harbor provisions.98

The Commission, however, invites 

public comment on whether and for 

how long telemarketers and sellers 

maintain records in the ordinary course 

of business of every version of the FTC’s 

DNC Registry they access to comply 

with the TSR’s safe harbor rules, and if 

not, whether requiring them to do so 

would be overly burdensome. The 

Commission also invites comment from 

other law enforcement agencies and any 

other interested parties regarding 

whether a record of the name of the 

telemarketer or seller who accessed the 

registry, the subscription account 

number used to access the registry, the 

telemarketing campaign for which it 

was accessed, and the date of access 

would suffice to ensure telemarketers 

and sellers are complying with the 

TSR.99

B. Modification of Existing 

Recordkeeping Requirements 

1. Time Period To Keep Records 

In this NPRM, the Commission 

proposes changing the time period 

telemarketers and sellers must keep 

records from two years to five years 

from the date the record is made, except 

for § 310.5(a)(1) and (9), which require 

retention of records for five years from 

the date such records are no longer in 

use.100 The Commission is proposing to 

change the time period from two years 

to five years because the Commission 

needs adequate time to complete its 

investigations of non-compliance with 

the TSR. Given the additional 

complexities of identifying the 

telemarketer and seller responsible for 

particular telemarketing campaigns and 

gathering the necessary evidence, two 

years is no longer a sufficient amount of 

time for the Commission to fully 

complete its investigations of 

noncompliance. Given the decreasing 

cost of data storage, the Commission 

does not believe changing the length of 

time sellers and telemarketers are 

required to keep records will be unduly 

burdensome. 

2. § 310.5(a)(3)—Prize Recipients 

The TSR currently requires 

telemarketers and sellers to retain the 

‘‘name and last known address’’ of each 

prize recipient.101 The Commission is 

proposing to modify this provision also 

to require sellers and telemarketers to 

retain the last known telephone number 

and the last known physical or email 

address for each prize recipient.102 The 

Commission is proposing this change to 

reflect current business practices in 

communicating with customers. The 

Commission does not believe retention 

of such records is unduly burdensome 

since telemarketers and sellers likely 

keep such information in the regular 

course of business. 

3. § 310.5(a)(4)—Customer Records 

The TSR currently requires sellers or 

telemarketers to retain the ‘‘name and 

last known address of each customer, 

the goods or services purchased, the 

date such goods or services were 

shipped or provided, and the amount 

paid by the customer for the goods or 

services.’’ 103 To account for the new 

requirement telemarketers and sellers 

keep records of each consumer with 

whom a seller intends to assert it has an 

EBR, the Commission proposes 

modifying § 310.5(a)(4) to require the 

seller or telemarketer to keep records of 

the date the customer purchased the 

good or service.104 The Commission also 

proposes modifying § 310.5(a)(4) to 

require the retention of the customer’s 

last known telephone number and the 

customer’s last known physical address 

or email address to account for current 

business practices in communicating 

with existing customers. Because the 

Commission believes sellers likely 

already keep records of this information 

in the ordinary course of business, the 

Commission does not believe these 

modifications will cause significant 

additional burden. 

The Commission recognizes requiring 

telemarketers and sellers to retain 

information regarding consumers’ 

names, phone numbers, and either their 

email or physical addresses, in 

combination with the goods or services 

they have purchased, raises privacy 

concerns. The Commission emphasizes 

telemarketers and sellers have an 

obligation under Section 5 of the FTC 

Act to adhere to commitments they 

make about their information practices, 

and take reasonable measures to secure 

consumers’ data.105

4. § 310.5(a)(8)—Records of Consent 

Section 310.5(a)(5) of the TSR 

currently requires sellers or 

telemarketers to keep records of ‘‘[a]ll 

verifiable authorizations or records of 

express informed consent or express 

agreement required to be provided or 

received under [the TSR] .’’ The 

Commission proposes modifying this 


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106See supra Section II.C at 14 (a list of consumer 

IP addresses is not a complete record of consent 

when the Commission cannot tell the name of the 

consumer allegedly providing consent and cannot 

know the nature of the purported consent). 

requirement to keep records of verifiable 

authorizations, express informed 

consent or express agreement 

(collectively, ‘‘consent’’) to clarify what 

information the Commission believes is 

a complete record sufficient for a 

telemarketer or seller to assert such an 

affirmative defense.106 Specifically, for 

each consumer from whom a seller or 

telemarketer states it has obtained 

consent, the Commission proposes 

requiring sellers or telemarketers to 

maintain records of that consumer’s 

name and phone number, a copy of the 

consent requested in the same manner 

and format it was presented to that 

consumer, a copy of the consent 

provided, the date the consumer 

provided consent, and the purpose for 

which consent was given and received. 

For a copy of the consent provided 

under § 310.3(a)(3), 310.4(a)(7), 

(b)(1)(iii)(B)(1), or (b)(1)(v)(A), a 

complete record must include all of the 

requirements outlined in those 

respective sections. For example, a copy 

of the consent provided to receive 

prerecorded sales messages under 

§ 310.4(b)(1)(v)(A) must evidence, in 

writing: (1) The consumer’s name, 

telephone number, and signature; (2) the 

consumer states she is willing to receive 

prerecorded messages from or on behalf 

of a specific seller; (3) the seller 

obtained consent only after clearly and 

conspicuously disclosing that the 

purpose of the written agreement is to 

authorize that seller to place 

prerecorded messages to that consumer; 

and (4) the seller did not condition the 

sale of the relevant good or service on 

the consumer providing consent to 

receive prerecorded messages. 

If the telemarketer or seller requested 

consent verbally, the copy of consent 

requested need not be a recording of the 

conversation unless such a recording is 

required by another provision of the 

TSR. For such consent requests, unless 

such a recording is required by another 

provision of the TSR, a copy of the 

telemarketing script of the request for 

consent will suffice as a complete 

record. The Commission does not 

believe requiring the telemarketer or 

seller to keep records of consent 

imposes significant additional burden 

since it is likely telemarketers and 

sellers who comply with the TSR 

already keep such records in the 

ordinary course of business. 

5. § 310.5(b)—Format of Records 

The NPRM includes a modification to 

the formatting requirements for records 

that include phone numbers, time, or 

duration. For such records, the 

Commission proposes to require that 

international phone numbers must 

comport with the International 

Telecommunications Union’s 

Recommendation E.164 format and 

domestic numbers must comport with 

the North American Numbering plan. 

For time and duration, the Commission 

proposes such records be kept to the 

closest whole second, and time must be 

recorded in Coordinated Universal Time 

(UTC). The Commission does not 

believe specifying these format 

requirements will cause any undue 

burden since the numbering formats are 

standard practice across the 

telecommunications industry, and the 

proposed time and duration formats are 

widely used, so sellers and 

telemarketers can easily select them 

when they set up an automated method 

of maintaining call detail records. 

6. § 310.5(c)—Violation of 

Recordkeeping Provisions 

The Commission proposes clarifying 

that the failure to keep each record 

required by § 310.5 in a complete and 

accurate manner constitutes a violation 

of this Rule. The Commission wants to 

state clearly that a violation does not 

mean a failure to keep all records, but 

instead that failure to keep each 

required record constitutes a separate 

violation. To do otherwise would create 

a perverse incentive for deceptive 

telemarketers to choose not to comply 

with the recordkeeping provisions when 

the only consequence would be liability 

for a single violation of the TSR. Such 

an outcome would negate the entire 

purpose of implementing recordkeeping 

requirements. 

7. § 310.5(d)—Safe Harbor for 

Incomplete or Inaccurate Records Kept 

Pursuant to § 310.5(a)(2) 

The Commission proposes including a 

safe harbor provision for temporary and 

inadvertent errors in keeping call detail 

records pursuant to § 310.5(a)(2). 

Specifically, a seller or telemarketer 

would not be liable for failing to keep 

records under § 310.5(a)(2) if it can 

demonstrate: (1) It has established and 

implemented procedures to ensure 

completeness and accuracy of its 

records under § 310.5(a)(2); (2) it trained 

its personnel in the procedures; (3) it 

monitors compliance and enforces the 

procedures, and documents its 

monitoring and enforcement activities; 

and (4) any failure to keep accurate or 

complete records under § 310.5(a)(2) 

was temporary and inadvertent. 

The Commission believes providing a 

safe harbor for the recordkeeping 

requirements under § 310.5(a)(2) is 

appropriate since the process of 

maintaining such records will likely be 

automated by technology, and 

telemarketers and sellers should not be 

held liable under this section of the TSR 

for brief and inadvertent technological 

errors so long as they make good faith 

efforts to comply. 

8. § 310.5(e)—Compliance Obligations 

The Commission also proposes 

modifying the compliance obligations in 

§ 310.5(e). In the event the seller and 

telemarketer fail to allocate 

responsibility for maintaining the 

required records, the TSR currently 

designates which recordkeeping 

obligations fall on the telemarketer and 

which fall on the seller. The 

Commission is proposing to modify the 

TSR so that if the seller and 

telemarketer fail to allocate 

recordkeeping obligations between 

themselves, the responsibility for 

complying with this Section will fall on 

both parties. This would avoid disputes 

between sellers and telemarketers over 

which party is responsible for 

recordkeeping. Also, because the parties 

may still allocate the recordkeeping 

obligations, the Commission does not 

believe modifying this provision would 

alter the overall burden of complying 

with the TSR; rather, it should 

incentivize the parties to delineate 

clearly their respective responsibilities. 

C. Modification of the B2B Exemption 

The Commission proposes narrowing 

the B2B exemption to require B2B 

telemarketing calls to comply with 

§ 310.3(a)(2)’s prohibition on 

misrepresentations and § 310.3(a)(4)’s 

prohibition on false or misleading 

statements. The Commission believes a 

prohibition on such deceptive conduct 

will protect businesses from illegal 

telemarketing without burdening 

industry since the FTC Act already 

prohibits businesses from making 

misrepresentations and false or 

misleading statements. 

D. New Definitions 

The Commission proposes adding a 

new definition for the term ‘‘previous 

donor’’ to implement the Commission’s 

original intent to allow robocalls 

soliciting charitable donations on behalf 

of a particular non-profit charitable 

organization only to consumers who 

have an established relationship with 

that organization. The proposed 

definition also specifies the consumer 


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must have made a donation to the nonprofit charitable organization within the 

two-year period immediately preceding 

the date of the robocall. The 

Commission proposes implementing a 

time limit for the existence of an 

established relationship and chose two 

years to account for the possibility that 

consumers who donate annually may 

not necessarily donate exactly one year 

apart (i.e., one year the consumer might 

donate in January and the following 

year the consumer might not donate 

until December). The Commission, 

however, seeks public comment on 

whether two years is an appropriate 

time period to use in determining 

whether the consumer has an 

established relationship with a 

particular organization. 

E. Corrections to the Rule 

The Commission also proposes five 

corrections to the Rule. The first is a 

clerical correction to the cross-reference 

citations in § 310.6(b)(1), (2), and (3) 

changing the cross-references from 

§ 310.4(a)(1) and (7), (b), and (c) to 

§ 310.4(a)(1) and (8), (b), and (c). 

The second is modifying the time 

requirements in the definition of EBR to 

change it from months to days. For 

§ 310.2(q)(1), the time requirement to 

qualify for EBR will be modified from 

18 months between the date of the 

telephone call and financial transaction 

to 540 days. For § 310.2(q)(2), the time 

requirement to qualify for EBR will be 

modified from three months between 

the date of the telephone call and the 

date of the consumer’s inquiry or 

application to 90 days. The Commission 

is proposing these modifications to 

make the technical calculations of 

whether a consumer has an EBR with a 

particular seller easier to determine 

since the number of days to qualify 

would be fixed instead of fluctuating 

depending on which months were 

applicable. 

The third correction is to add an 

email address to § 310.7 so state officials 

or private litigants can more easily 

provide notice to the Commission that 

the state official or private litigant 

intends to bring an action under the 

Telemarketing Act. 

The fourth correction is amending 

§ 310.5(a)(7) so it is consistent in form 

with the new proposed additions to 

§ 310.5(a). The substantive requirements 

of this section will remain the same. 

The fifth correction is amending 

§ 310.5(f) to remove an extraneous word. 

The substantive requirements of this 

section will remain the same. 

IV. Request for Comment 

The Commission seeks comments on 

all aspects of the proposed 

requirements, including the likely 

effectiveness of the proposed 

requirements to combat violations of the 

TSR and any alternatives to the 

proposed requirements. The 

Commission also seeks comments on 

the estimated burden compliance with 

the proposed regulations will impose on 

sellers and telemarketers. In their 

replies, commenters should provide any 

available evidence and data that 

supports their position, such as 

empirical data on the costs of complying 

with the proposed amendments. 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before August 2, 2022. Write 

‘‘Telemarketing Sales Rule (16 CFR part 

310—NPRM) (Project No. R411001)’’ on 

your comment. Your comment— 

including your name and your state— 

will be placed on the public record of 

this proceeding, including, to the extent 

practicable, on the https://

www.regulations.gov website. 

Because of the public health 

emergency in response to the COVID–19 

outbreak and the agency’s heightened 

security screening, postal mail 

addressed to the Commission will be 

subject to delay. We strongly encourage 

you to submit your comment online 

through the https://www.regulations.gov 

website. To ensure the Commission 

considers your online comment, please 

follow the instructions on the webbased form. 

If you file your comment on paper, 

write ‘‘Telemarketing Sales Rule (16 

CFR part 310—NPRM) (Project No. 

R411001)’’ on your comment and on the 

envelope, and mail your comment to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

600 Pennsylvania Avenue NW, Suite 

CC–5610 (Annex B), Washington, DC 

20580, or deliver your comment to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

Constitution Center, 400 7th Street SW, 

5th Floor, Suite 5610 (Annex B), 

Washington, DC 20024. If possible, 

please submit your paper comment to 

the Commission by courier or overnight 

service. 

Because your comment will be placed 

on the publicly accessible website, 

https://www.regulations.gov, you are 

solely responsible for making sure your 

comment does not include any sensitive 

or confidential information. In 

particular, your comment should not 

include any sensitive personal 

information, such as your or anyone 

else’s Social Security number; date of 

birth; driver’s license number or other 

state identification number, or foreign 

country equivalent; passport number; 

financial account number; or credit or 

debit card number. You are also solely 

responsible for making sure 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 

document and the news release 

describing it. The FTC Act and other 

laws 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 it 

receives on or before August 2, 2022. 

For information on the Commission’s 

privacy policy, including routine uses 

permitted by the Privacy Act, see 

https://www.ftc.gov/site-information/ 

privacy-policy. 

In addition to the issues raised above, 

the Commission solicits public 

comment on the list of questions below 

regarding the costs and benefits of the 

proposed amendments. The 

Commission requests that comments 


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provide the factual data upon which 

they are based. These questions are 

designed to assist the public and should 

not be construed as a limitation on the 

issues on which a public comment may 

be submitted. 

A. General Questions for Comments 

1. What would be the impact 

(including any benefits and costs), if 

any, of the proposed amendments on 

consumers? 

2. What would be the impact 

(including any benefits and costs), if 

any, of the proposed amendments on 

individual firms (including small 

businesses) that must comply with 

them? 

3. What would be the impact 

(including any benefits and costs), if 

any, on industry, including those who 

may be affected by the proposed 

amendments but not obligated to 

comply with the Rule? 

4. What changes, if any, should be 

made to the proposed amendments to 

minimize any costs to consumers or to 

industry and individual firms 

(including small businesses) that must 

comply with the Rule? 

5. How would each change suggested 

in response to Question 4 affect the 

benefits that might be provided by the 

proposed amendment to consumers or 

to industry and individual firms 

(including small businesses) that must 

comply with the Rule? 

6. How would the proposed 

amendments impact small businesses 

with respect to costs, profitability, 

competitiveness, and employment? 

What other burdens, if any, would the 

proposed amendments impose on small 

businesses, and in what ways could the 

proposed amendments be modified to 

reduce any such costs or burdens? 

7. How many small businesses would 

be affected by each of the proposed 

amendments? 

8. With respect to each of the 

proposed amendments, are there any 

potentially duplicative, overlapping, or 

conflicting federal statutes, rules, or 

policies currently in effect? 

B. Specific Questions for Comments 

1. Is 5 years an appropriate time 

period to require telemarketers and 

sellers to maintain records? If not, what 

is an appropriate time period and why? 

2. What are the current practices of 

sellers and telemarketers in keeping 

records of their telemarketing activities? 

How will the proposed amendments 

alter the current practices? 

3. Is the proposed requirement to 

retain a record of each unique robocall 

recording used in telemarketing, under 

§ 310.5(a)(1), overly burdensome? If so, 

what are the costs or burdens associated 

with keeping a record of each unique 

robocall recording? 

4. What are the costs or burdens 

associated with keeping a record of each 

call in which soundboard technology is 

used? How many telemarketers employ 

soundboard technology in 

telemarketing? How many calls do 

telemarketers make on average in one 

year using soundboard technology? 

What is the average duration of each call 

using soundboard technology? Do 

telemarketers typically keep recordings 

of such calls in the ordinary course of 

business? If so, how long do 

telemarketers typically keep such 

recordings in the ordinary course of 

business? 

5. Do the proposed recordkeeping 

requirements of 310.5(a)(2) adequately 

identify all data categories a 

telemarketer or seller should retain from 

the call detail records of their 

telemarketing activities? If not, what 

data categories are missing? 

Alternatively, are there data categories 

that are overly burdensome or 

unnecessary to ensure the telemarketer 

and seller are complying with the TSR? 

If the data categories are overly 

burdensome, is there an alternative 

proposal on how a telemarketer or seller 

can retain the information from that 

data category in a less burdensome 

manner? 

6. Is the proposed requirement to 

identify the robocall recording used in 

each call, under § 310.5(a)(2), overly 

burdensome? If so, what are the costs or 

burdens associated with this 

requirement? Is there an alternative 

proposal that would still give the 

Commission information on what 

robocall was used in the call but is less 

burdensome for the seller or 

telemarketer? 

7. Does the proposed amendment to 

§ 310.5(a)(8) adequately describe the 

information the telemarketer or seller 

needs to retain to provide proof of 

verifiable authorizations, express 

informed consent, or express 

agreement? If not, what other 

information should the telemarketer or 

seller be required to retain to show 

proof of verifiable authorizations, 

express informed consent, or express 

agreement? 

8. Does the proposed amendment to 

§ 310.5(a)(8) require sufficient records to 

demonstrate whether telemarketers or 

sellers who obtain preacquired account 

information through data pass are 

authorized to bill consumers? If not, 

what other information should the 

telemarketer or seller be required to 

retain? 

9. Does the proposed amendment to 

§ 310.5(a)(8) sufficiently address any 

potential harms caused by telemarketers 

or sellers using preacquired account 

information through data pass? Does it 

also sufficiently address any new harms 

that have emerged since 2014 caused by 

telemarketers or sellers using 

preacquired account information 

through data pass? If not, what harms 

have emerged since 2014? What other 

changes should be made to the TSR to 

address harms caused by data pass of 

preacquired account information? 

10. Does the proposed amendment in 

§ 310.5(a)(9) requiring the telemarketer 

or seller to retain records of all service 

providers a telemarketer uses to deliver 

an outbound call provide adequate 

guidance on which service providers are 

referenced in this provision? If not, is 

there an alternative description that 

would more accurately provide 

guidance on what service providers a 

telemarketer or seller would need to 

retain records of as required by this 

provision? Would such a description be 

flexible enough to account for changes 

in the telecommunications industry, 

including technological developments? 

11. Should the Commission require 

the telemarketer or seller to retain 

records of every version of the 

Commission’s DNC Registry that it 

downloaded to ensure compliance with 

the TSR or would requiring a record of 

each instance the telemarketer or seller 

accessed the registry, including the date 

of access, the subscription account 

number used to access, the 

telemarketing campaign for which it 

was accessed, and the entity that 

accessed the registry, be sufficient to 

ensure compliance with the TSR? 

12. Should the Commission include 

the safe harbor provision in § 310.5(d) 

for the retention of records identified in 

§ 310.5(a)(2)? Is such a safe harbor 

necessary? Alternatively, does the 

proposed safe harbor provide adequate 

protection to the seller or telemarketer 

against mistakes that cannot readily be 

prevented? Should the safe harbor 

provision apply only to records 

identified in § 310.5(a)(2) or should it 

also apply to other records required by 

§ 310.5? 

13. Should sellers and telemarketers 

be allowed to decide by contract which 

entity is responsible for retaining 

records under this Rule? If not, should 

both sellers and telemarketers be 

required to retain records under this 

Rule? Alternatively, should the 

Commission specify which entity 

should be required to retain specific 

categories of records? 

14. Should the definition of previous 

donor include a two-year time limit 


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33690 Federal Register / Vol. 87, No. 107 / Friday, June 3, 2022 / Proposed Rules 

107This PRA analysis focuses specifically on the 

information collection requirements created by or 

otherwise affected by the proposed amendments. 

108As described above, changing industry 

practice including increased spoofing of Caller ID 

information has made it more difficult to identify 

the telemarketers and sellers responsible for 

particular telemarketing campaigns and has 

hindered evidence gathering. As a result, two years 

is no longer always a sufficient amount of time for 

the Commission to fully complete its investigations 

of noncompliance and therefore the Commission is 

proposing to increase the required retention period 

for recordkeeping under the Rule. Given the 

decreasing cost of data storage, the Commission 

does not believe that changing the length of time 

sellers and telemarketers are required to keep 

records will be unduly burdensome. 

109See National Do not Call Registry Data Book 

for Fiscal Year 2020 (‘‘Data Book’’), available at 

https://www.ftc.gov/system/files/documents/ 

reports/national-do-not-call-registry-data-bookfiscal-year-2020/dnc_data_book_2020.pdf (last 

visited Jan. 31, 2022). An exempt entity is one that, 

although not subject to the TSR, voluntarily chooses 

to scrub its calling lists against the data in the 

Registry. 

110See Information Collection Activities; 

Proposed Collection; Comment Request 87 FR 

23177 (Apr. 19, 2022). 

after which a consumer is no longer 

considered a previous donor to a 

particular charitable organization? If 

not, what is the appropriate amount of 

time that can lapse before a consumer 

should no longer be considered a 

previous donor to a particular charitable 

organization? 

15. How many calls on average do 

sellers and telemarketers make per year? 

16. What call detail records do sellers 

and telemarketers currently keep? 

17. How much do sellers and 

telemarketers pay to retain call detail 

records on a monthly basis? 

18. Are there other costs associated 

with creating and preserving call detail 

records? 

19. How many different prerecorded 

messages do sellers and telemarketers 

use with their campaigns and what is 

the file size of the messages? 

20. To what extent do existing 

recordkeeping requirements, such as 

those found under the Telephone 

Consumer Protection Act, overlap with 

the proposed rule’s recordkeeping 

requirements? 

21. Are businesses harmed by 

deception in B2B telemarketing? Would 

requiring B2B telemarketing to comply 

with the TSR’s prohibitions on 

misrepresentations and making false or 

misleading statements help businesses? 

22. Are businesses harmed by B2B 

telemarketing in ways not addressed by 

the FTC’s past law enforcement work? 

23. Would the proposed amendment 

to the B2B exemption burden sellers or 

telemarketers? If so, in what way, and 

what is the burden? 

V. Paperwork Reduction Act 

The current Rule contains various 

provisions that constitute information 

collection requirements as defined by 5 

CFR 1320.3(c), the definitional 

provision within the Office of 

Management and Budget (‘‘OMB’’) 

regulations implementing the 

Paperwork Reduction Act (PRA). 44 

U.S.C. chapter 35. OMB has approved 

the Rule’s existing information 

collection requirements through 

September 30, 2022 (OMB Control No. 

3084–0097). The proposed amendments 

will make changes in the Rule’s 

recordkeeping requirements that will 

increase the PRA burden as detailed 

below. Accordingly, FTC staff will 

submit this notice of proposed 

rulemaking and the associated 

Supporting Statement to OMB for 

review under the PRA.107

The proposed rule contains new 

recordkeeping requirements and 

modifications to existing recordkeeping 

requirements. The new recordkeeping 

provisions would require sellers or 

telemarketers to retain: (1) A copy of 

each unique prerecorded message; (2) 

call detail records of telemarketing 

campaigns; (3) records sufficient to 

show a seller has an established 

business relationship with a consumer; 

(4) records sufficient to show a 

consumer is a previous donor to a 

particular charitable organization; (5) 

records regarding the service providers 

a telemarketer uses to deliver outbound 

calls; (6) records of a seller or charitable 

organization’s entity-specific do-not-call 

registries; and (7) records of the 

Commission’s DNC Registry that were 

used to ensure compliance with this 

Rule. The proposed modifications to the 

existing recordkeeping requirements 

would: (1) Change the time period for 

retaining records from two years to five 

years; 108 (2) clarify the records 

necessary for sellers or telemarketers to 

demonstrate the person it is calling has 

consented to receive the call; and (3) 

specify the format for records that 

include phone numbers, time, or 

duration. 

As explained above, the Commission 

believes for the most part, sellers and 

telemarketers already generate and 

retain these records in the ordinary 

course of business. For example, to 

comply with the TSR, sellers and 

telemarketers must already have a 

reliable method to identify whether they 

have a previous business relationship 

with a customer or whether the 

customer is a prior donor. They must 

also access the DNC Registry and 

maintain an entity-specific DNC 

registry. Moreover, sellers and 

telemarketers are also likely to keep 

records about their existing customers 

or donors and service providers in the 

ordinary course of business. The 

proposed rule would also require 

telemarketers and sellers to keep call 

detail records of their telemarketing 

campaigns, but in the Commission’s 

experience the technological methods 

sellers and telemarketers use to 

implement their campaigns can also 

reliably generate the records of those 

campaigns that would be required under 

the proposed rule. 

A. Estimated Annual Hours Burden 

The Commission estimates the PRA 

burden of the proposed amendments 

based on its knowledge of the 

telemarketing industry and data 

compiled from the Do Not Call Registry. 

In calendar year 2021, 11,756 

telemarketing entities accessed the Do 

Not Call Registry; however, 536 were 

exempt entities obtaining access to 

data.109 Of the non-exempt entities, 

6,835 obtained data for a single state. 

Staff assumes these 6,835 entities are 

operating solely intrastate, and thus 

would not be subject to the TSR. 

Therefore, Staff estimates approximately 

4,385 telemarketing entities (11,756— 

536 exempt—6,835 intrastate) are 

currently subject to the TSR. The 

Commission also estimates there will be 

75 new entrants to the industry per year. 

The Commission has previously 

estimated that complying with the 

TSR’s current recordkeeping 

requirements requires 100 hours for new 

entrants to develop recordkeeping 

systems that comply with the TSR and 

1 hour per year for established entities 

to file and store records after their 

systems are created, for a total annual 

recordkeeping burden of 4,385 hours for 

established entities and 7,500 hours for 

new entrants who must develop 

required record systems.110

Because the proposed rule contains 

new recordkeeping requirements, the 

Commission anticipates in the first year 

after the proposed amendments take 

effect, every entity subject to the TSR 

would need to ensure their 

recordkeeping systems meet the new 

requirements. The Commission 

estimates this undertaking will take 50 

hours. This includes 10 hours to verify 

the entities are maintaining the required 

records, and 40 hours to create and 

retain call detail records. This yields an 

additional burden of 219,250 hours for 

established entities (50 hours × 4,385 

covered entities). 

For new entrants, the Commission 

estimates the new requirements will 

increase their overall burden for 

establishing new recordkeeping systems 

from 100 hours per year to 150 hours 


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111This figure is derived from the mean hourly 

wage shown for ‘‘Computer Support Specialist.’’ 

See ‘‘Occupational Employment and Wages-May 

2021’’ Bureau of Labor Statistics, U.S. Department 

of Labor, Last Modified March 31, 2022, Table 1 

(‘‘National employment and wage data from the 

Occupational Employment Statistics survey by 

occupation, May 2021’’) available at https://

www.bls.gov/news.release/ocwage.t01.htm (last 

visited April 5, 2022). 

112See Gartner, Inc. ‘‘IT Key Metrics Data 2020: 

Infrastructure Measures—Storage Analysis.’’ 

Gartner December 18, 2019. 

113Amazon’s storage rate for S3 Standard— 

Infrequent Access storage is $0.0125 per GB per 

month. Available at https://aws.amazon.com/s3/ 

pricing/?nc=sn&loc=4 (last visited Jan. 31, 2022); 

Google’s storage rate for Archive Storage in parts of 

North America is $0.0012 per GB per month. 

Available at https://cloud.google.com/storage/ 

pricing (last visited Jan. 31, 2022). 

114 5 U.S.C. 601–612. 115 5 U.S.C. 605. 

per year. This yields a total burden for 

new entrants of 11,250 hours (150 hours 

× 75 new entrants per year). 

B. Estimated Annual Labor Costs 

The Commission estimates annual 

labor costs by applying appropriate 

hourly wage rates to the burden hours 

described above. The Commission 

estimates established entities will 

employ skilled computer support 

specialists to modify their 

recordkeeping systems. 

Applying a skilled labor rate of 

$29.11/hour 111 to the estimated 50 

burden hours for established entities 

yields approximately $6,384,560 in 

labor costs in the first year after the 

proposed amendments would take effect 

(4,385 respondents × $1,456). 

As described above, the Commission 

estimates new entrants will spend 

approximately 150 hours per year to 

establish new recordkeeping systems. 

Applying a skilled labor rate of $29.11/ 

hour to the estimated 150 burden hours 

for new entrants, the Commission 

estimates the annual labor costs for new 

entrants would be approximately 

$327,525 (75 entrants × $4,367). 

C. Estimated Non-Annual Labor Costs 

Staff previously estimated the nonlabor costs to comply with the TSR’s 

recordkeeping requirements were de 

minimis because most affected entities 

would maintain the required records in 

the ordinary course of business. Staff 

estimated the recordkeeping 

requirements could require $50 per year 

in office supplies to comply with the 

Rule’s recordkeeping requirements. 

Because the proposed recordkeeping 

requirements require retaining 

additional records, Staff estimates these 

requirements will increase to $60 per 

year in office supplies. 

The new recordkeeping requirements 

also require entities to retain call detail 

records and audio recordings of 

prerecorded messages used in calls. 

Staff estimates the costs associated with 

preserving these records will also be de 

minimis. The Commission regularly 

obtains call detail records from voice 

providers when investigating potential 

TSR violations, and these records are 

kept in databases with small file sizes 

even when the database contains 

information about a substantial number 

of calls. For example, the Commission 

received a 2.9 gigabyte database that 

contained information about 56 million 

calls. The Commission also received a 

1.2 gigabyte database that contained 

information about 5.5 million calls. 

Similarly, audio files of most 

prerecorded messages will not be very 

large because prerecorded messages are 

typically short in duration. Storing 

electronic data is very inexpensive. 

Electronic storage can cost $.74 per 

gigabyte for onsite storage including 

hardware, software, and personnel 

costs.112 Commercial cloud-based 

storage options are less expensive and 

can cost around $.20 per gigabyte per 

year.113 The Commission estimates the 

non-labor costs associated with 

electronically storing audio files of 

prerecorded messages and call detail 

records will cost around $5 a year. 

The Commission invites comments 

on: (1) Whether the proposed collection 

of information is necessary for the 

proper performance of the functions of 

the agency, including whether the 

information will have practical utility; 

(2) the accuracy of the FTC’s burden 

estimates, including whether the 

methodology and assumptions used are 

valid; (3) ways to enhance the quality, 

utility, and clarity of the information to 

be collected; and (4) ways to minimize 

the burden of collecting information. An 

agency may not conduct or sponsor, and 

a person is not required to respond to, 

a collection of information unless it 

displays a currently valid OMB control 

number. 

Written comments and 

recommendations for the proposed 

information collection should be sent 

within 30 days of publication of this 

document to www.reginfo.gov/public/ 

do/PRAMain. Find this particular 

information collection by selecting 

‘‘Currently under Review—Open for 

Public Comments’’ or by using the 

search function. The reginfo.gov web 

link is a United States Government 

website produced by OMB and the 

General Services Administration (GSA). 

Under PRA requirements, OMB’s Office 

of Information and Regulatory Affairs 

(OIRA) reviews Federal information 

collections. 

VI. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

(‘‘RFA’’), as amended by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, requires that the 

Commission conduct an analysis of the 

anticipated economic impact of the 

proposed amendments on small 

entities.114 The RFA requires the 

Commission provide an Initial 

Regulatory Flexibility Analysis 

(‘‘IRFA’’) with a proposed rule unless 

the Commission certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities.115

The Commission believes that the 

proposed amendment would not have a 

significant economic impact upon small 

entities, although it may affect a 

substantial number of small businesses. 

In the Commission’s view, the proposed 

amendment should not significantly 

increase the costs of small entities that 

are sellers or telemarketers because the 

proposed amendments primarily require 

these entities to retain records they are 

already generating and preserving in the 

ordinary course of business. The 

Commission does not believe the 

proposed amendments requiring small 

entities that are sellers or telemarketers 

to comply with the TSR’s prohibitions 

on misrepresentations should impose 

any additional costs on small entities. 

Therefore, based on available 

information, the Commission certifies 

that amending the Rules as proposed 

will not have a significant economic 

impact on a substantial number of small 

entities, and hereby provides notice of 

that certification to the Small Business 

Administration (‘‘SBA’’). Nonetheless, 

the Commission has determined it is 

appropriate to publish an IRFA in order 

to inquire into the impact of the 

proposed amendments on small entities. 

The Commission invites comment on 

the burden on any small entities that 

would be covered and has prepared the 

following analysis. 

A. Description of the Reasons the 

Agency Is Taking Action 

The Commission proposes amending 

the TSR to require telemarketers and 

sellers to maintain additional records 

regarding their telemarketing 

transactions. As described in Section II, 

the proposed amendments are intended 

to update the TSR’s existing 

recordkeeping requirements so the 

requirements comport with the 

substantial amendments to the TSR 

since the recordkeeping requirements 

were first made. The requirements are 


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116 16 CFR 310.2(dd). The Commission notes that, 

as mandated by the Telemarketing Act, the 

interstate telephone call requirement in the 

definition excludes small business sellers and the 

telemarketers which serve them in their local 

market area, but may not exclude some small 

business sellers and telemarketers in multi-state 

metropolitan markets, such as Washington, DC. 

117Telemarketers are typically classified as 

‘‘Telemarketing Bureaus and Other contact 

Centers,’’ (NAICS Code 561422). See Table of Small 

Business Size Standards Matched to North 

American Industry Classification System Codes, 

available at https://www.sba.gov/sites/default/files/ 

2019-08/ 

SBA%20Table%20of%20Size%20Standards_

Effective%20Aug%2019,%202019.pdf (last visited 

Jan. 31, 2022). 

118 47 CFR 65.1200(d)(3). 

119See 16 CFR 1.26(b)(5). 

also necessary in light of the 

technological advancements that have 

made it easier and cheaper for 

unscrupulous telemarketers to engage in 

illegal telemarketing. The proposed 

amendments would also require B2B 

telemarketers to comply with the TSR’s 

prohibition on misrepresentations. 

These amendments are necessary to 

help protect businesses from deceptive 

telemarketing practices. The proposed 

amendments would also amend the 

definition of ‘‘previous donor’’ to clarify 

that a seller or telemarketer may not use 

prerecorded messages to solicit 

charitable donations on behalf of a 

charitable organization unless the 

recipient of the call previously donated 

to that charitable organization within 

the last two years. 

B. Statement of Objectives of, and Legal 

Basis for, the Proposed Amendments 

The objective of the proposed 

amendments is to update the TSR’s 

recordkeeping requirements in order to 

assist the Commission’s enforcement of 

the TSR, and to prohibit 

misrepresentations in B2B 

telemarketing. The legal basis for the 

proposed amendments is the 

Telemarketing Act, which authorizes 

the Commission to issue rules to 

prohibit deceptive or abusive 

telemarketing practices. 

C. Description and Estimated Number of 

Small Entities To Which the Rule Will 

Apply 

The proposed amendments to the 

Rule affect sellers and telemarketers 

engaged in ‘‘telemarketing,’’ defined by 

the Rule to mean ‘‘a plan, program, or 

campaign which is conducted to induce 

the purchase of goods or services or a 

charitable contribution, by use of one or 

more telephones and which involves 

more than one interstate telephone 

call.’’ 116 As noted above, staff estimate 

4,385 telemarketing entities are 

currently subject to the TSR, and 

approximately 75 new entrants enter the 

market per year. For telemarketers, a 

small business is defined by the SBA as 

one whose average annual receipts do 

not exceed $16.5 million.117 Because 

virtually any business could be a seller 

under the TSR, it is not possible to 

identify average annual receipts that 

would make a seller a small business as 

defined by the SBA. Commission staff 

are unable to determine a precise 

estimate of how many sellers or 

telemarketers constitute small entities as 

defined by SBA. The Commission 

invites comment and information on 

this issue. 

D. Projected Reporting, Recordkeeping, 

and Other Compliance Requirements, 

Including Classes of Small Entities and 

Professional Skills Needed To Comply 

The proposed rule contains new 

recordkeeping requirements and 

modifications to existing recordkeeping 

requirements. The new recordkeeping 

requirements would require sellers or 

telemarketers to retain: (1) A copy of 

each unique prerecorded message; (2) 

call detail records of telemarketing 

campaigns; (3) records sufficient to 

show a seller has an established 

business relationship with a consumer; 

(4) records sufficient to show a 

consumer is a previous donor to a 

particular charitable organization; (5) 

records regarding the service providers 

a telemarketer uses to deliver outbound 

calls; (6) records of a seller or charitable 

organization’s entity-specific do-not-call 

registries; and (7) records of the 

Commission’s DNC Registry that were 

used to ensure compliance with this 

Rule. The proposed modifications to the 

existing recordkeeping requirements 

would: (1) Change the time period for 

retaining records from two years to five 

years; (2) clarify the records necessary 

for sellers or telemarketers to 

demonstrate the person they are calling 

has consented to receive the call; and (3) 

specify the format for records that 

include phone numbers, time, or 

duration. The small entities potentially 

covered by the proposed amendment 

will include all such entities subject to 

the Rule. The Commission has 

described the skills necessary to comply 

with these recordkeeping requirements 

in Section V above. 

E. Identification of Duplicative, 

Overlapping, or Conflicting Federal 

Rules 

The Telephone Consumer Protection 

Act of 1991, 47 U.S.C. 227, and its 

implementing regulations, 47 CFR 

64.1200 (collectively, ‘‘TCPA’’) contain 

recordkeeping requirements that may 

overlap with the recordkeeping 

requirements proposed by the new rule. 

For example, the proposed provision 

requiring sellers or telemarketers to 

keep a record of consumers who state 

they do not wish to receive any 

outbound calls made on behalf of a 

seller or telemarketer, 16 CFR 

310.5(a)(10), overlaps to some degree 

with the TCPA’s prohibition on a person 

or entity initiating a call for 

telemarketing unless such person or 

entity has procedures for maintaining 

lists of persons who request not to 

receive telemarketing calls including a 

requirement to record the request.118

The Commission’s proposed 

recordkeeping requirements do not 

conflict with the TCPA’s recordkeeping 

requirements because sellers and 

telemarketers can comply with both sets 

of requirements simultaneously. 

Moreover, in the Commission’s 

experience, the recordkeeping 

requirements under the TCPA do not 

lessen the need for the more robust 

recordkeeping requirements the 

Commission is proposing to further its 

law enforcement efforts. The 

Commission invites comment and 

information regarding any potentially 

duplicative, overlapping, or conflicting 

federal statutes, rules, or policies. 

F. Significant Alternatives to the 

Proposed Amendments 

The Commission has not proposed 

any specific small entity exemption or 

other significant alternatives to the 

proposed rule. The Commission has 

made every effort to avoid imposing 

unduly burdensome requirements on 

sellers and telemarketers by limiting the 

recordkeeping requirements to records 

both necessary for the Commission’s 

law enforcement and typically already 

kept in the ordinary course of business. 

VII. Communications by Outside 

Parties to the Commissioners or Their 

Advisors 

Written communications and 

summaries or transcripts of oral 

communications respecting the merits 

of this proceeding, from any outside 

party to any Commissioner or 

Commissioner’s advisor, will be placed 

on the public record.119

VIII. Incorporation by Reference 

Consistent with 5 U.S.C. 552(a) and 1 

CFR part 51, the Commission proposes 

to incorporate the specifications of the 

following standard issued by the 

International Telecommunications 

Union: ITU–T E.164: Series E: Overall 

Network Operation, Telephone Service, 


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Federal Register / Vol. 87, No. 107 / Friday, June 3, 2022 / Proposed Rules 33693 

1For offers of consumer credit products subject 

to the Truth in Lending Act, 15 U.S.C. 1601 et seq., 

and Regulation Z, 12 CFR part 226, compliance 

with the recordkeeping requirements under the 

Truth in Lending Act, and Regulation Z, will 

constitute compliance with paragraph (a)(4) of this 

section. 

Service Operation and Human Factors 

(published 11/2010). The E.164 

standard establishes a common 

framework for how international 

telephone numbers should be arranged 

so calls can be routed across telephone 

networks. Countries use this standard to 

establish their own international 

telephone number formats and ensure 

those numbers have the information 

necessary to route telephone calls 

successfully between countries. 

This ITU standard is reasonably 

available to interested parties. The ITU 

provides free online public access to 

view read-only copies of the standard. 

The ITU website address for access to 

the standard is: https://www.itu.int/en/ 

pages/default.aspx. 

List of Subjects in 16 CFR Part 310 

Incorporation by reference, 

Telemarketing, Trade practices. 

For the reasons stated above, the 

Federal Trade Commission proposes to 

amend part 310 of title 16 of the Code 

of Federal Regulations as follows: 

PART 310—TELEMARKETING SALES 

RULE 

■ 1. The authority for part 310 

continues to read as follows: 

Authority: 15 U.S.C. 6101–6108. 

PART 310—[AMENDED] 

■ 2. In § 310.2, 

■ a. Revise paragraph (q) 

■ b. Redesignate paragraphs (aa) 

through (hh) as follows: 

Old section New section 

(aa) (bb) 

(bb) (cc) 

(cc) (dd) 

(dd) (ee) 

(ee) (ff) 

(ff) (gg) 

(gg) (hh) 

(hh) (ii) 

■ c. Add new paragraph (aa). 

The revision and addition read as 

follows: 

§ 310.2 Definitions. 

* * * * * 

(q) Established business relationship 

means a relationship between a seller 

and a consumer based on: 

(1) The consumer’s purchase, rental, 

or lease of the seller’s goods or services 

or a financial transaction between the 

consumer and seller, within the 540 

days immediately preceding the date of 

a telemarketing call; or 

(2) the consumer’s inquiry or 

application regarding a good or service 

offered by the seller, within the 90 days 

immediately preceding the date of a 

telemarketing call. 

* * * * * 

(aa) Previous donor means any person 

who has made a charitable contribution 

to a particular charitable organization 

within the two-year period immediately 

preceding the date of the telemarketing 

call soliciting on behalf of that 

charitable organization. 

* * * * * 

■ 3. Revise § 310.5 to read as follows: 

§ 310.5 Recordkeeping. 

(a) Any seller or telemarketer must 

keep, for a period of 5 years from the 

date the record is produced unless 

specified otherwise, the following 

records relating to its telemarketing 

activities: 

(1) A copy of each substantially 

different advertising, brochure, 

telemarketing script, and promotional 

material, and a copy of each unique 

prerecorded message. Such records 

must be kept for a period of 5 years from 

the date that they are no longer used in 

telemarketing; 

(2) A record of each telemarketing 

call, which must include: 

(i) The telemarketer that placed or 

received the call; 

(ii) the seller or person for which the 

telemarketing call is placed or received; 

(iii) the good, service, or charitable 

purpose that is the subject of the 

telemarketing call; 

(iv) whether the telemarketing call is 

to a consumer or a business; 

(v) whether the telemarketing call is 

an outbound telephone call; 

(vi) whether the telemarketing call 

utilizes a prerecorded message; 

(vii) the calling number, called 

number, date, time, and duration of the 

telemarketing call; 

(viii) the telemarketing script(s) and 

prerecorded message, if any, used 

during the call; 

(ix) the caller identification telephone 

number, and if it is transmitted, the 

caller identification name that is 

transmitted in an outbound telephone 

call to the recipient of the call, and any 

contracts or other proof of authorization 

for the telemarketer to use that 

telephone number and name, and the 

time period for which such 

authorization or contract applies; and 

(x) the disposition of the call, 

including but not limited to, whether 

the call was answered, connected, 

dropped, or transferred. If the call was 

transferred, the record must also include 

the telephone number or IP address that 

the call was transferred to as well as the 

company name, if the call was 

transferred to a company different from 

the seller or telemarketer that placed the 

call; 

(3) For each prize recipient, a record 

of the name, last known telephone 

number, and last known physical or 

email address of that prize recipient, 

and the prize awarded for prizes that are 

represented, directly or by implication, 

to have a value of $25.00 or more; 

(4) For each customer, a record of the 

name, last known telephone number, 

and last known physical or email 

address of that customer, the goods or 

services purchased, the date such goods 

or services were purchased, the date 

such goods or services were shipped or 

provided, and the amount paid by the 

customer for the goods or services; 1

(5) For each consumer with whom a 

seller asserts it has an established 

business relationship under 

§ 310.2(q)(2), a record of the name and 

last known telephone number of that 

consumer, the date that consumer 

submitted an inquiry or application 

regarding the seller’s goods or services, 

and the goods or services inquired 

about; 

(6) For each consumer that a 

telemarketer intends to assert is a 

previous donor to a particular charitable 

organization under § 310.2(aa), a record 

of the name and last known telephone 

number of that consumer, and the last 

date that consumer donated to that 

particular charitable organization; 

(7) For each current or former 

employee directly involved in telephone 

sales or solicitations, a record of the 

name, any fictitious name used, the last 

known home address and telephone 

number, and the job title(s) of that 

employee; provided, however, that if the 

seller or telemarketer permits fictitious 

names to be used by employees, each 

fictitious name must be traceable to only 

one specific employee; 

(8) All verifiable authorizations or 

records of express informed consent or 

express agreement (collectively, 

‘‘Consent’’) required to be provided or 

received under this Rule. A complete 

record of Consent includes the 

following: 

(i) The name and telephone number of 

the person providing Consent; 

(ii) a copy of the request for Consent 

in the same manner and format in 

which it was presented to the person 

providing Consent; 

(iii) the purpose for which Consent is 

requested and given; 


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33694 Federal Register / Vol. 87, No. 107 / Friday, June 3, 2022 / Proposed Rules 

(iv) a copy of the Consent provided; 

(v) the date Consent was given; and 

(vi) for the copy of Consent provided 

under § 310.3(a)(3) or 310.4(a)(7), 

(b)(1)(iii)(B)(1), or (b)(1)(v)(A), a 

complete record must also include all 

information specified in those 

respective sections of this Rule; 

(9) A record of each service provider 

a telemarketer used to deliver an 

outbound telephone call to a consumer 

on behalf of a seller for each good or 

service the seller offers for sale through 

telemarketing. For each such service 

provider, a complete record includes the 

contract for the service provided, the 

date the contract was signed, and the 

time period the contract is in effect. 

Such contracts must be kept for 5 years 

from the date the contract expires, or 5 

years from the date the telemarketing 

activity that the contract applies to 

ceased, whichever period of time is 

shorter; 

(10) A record of each consumer who 

has stated she does not wish to receive 

any outbound telephone calls made on 

behalf of a seller or charitable 

organization pursuant to 

§ 310.4(b)(1)(iii)(A) including: The name 

of the consumer, the telephone 

number(s) associated with the request, 

the seller or charitable organization 

from which the consumer does not wish 

to receive calls, the telemarketer that 

called the consumer, the date the 

consumer requested that she cease 

receiving such calls, and the goods or 

services the seller was offering for sale 

or the charitable purpose for which a 

charitable contribution was being 

solicited; and 

(11) A record of each version of the 

Commission’s ‘‘do-not-call’’ registry that 

was used to ensure compliance with 

§ 310.4(b)(1)(iii)(B). Such record must 

include the date the version was 

obtained, and the seller or telemarketer 

who obtained that version. 

(b) A seller or telemarketer may keep 

the records required by paragraph (a) of 

this section in the same manner, format, 

or place as they keep such records in the 

ordinary course of business. The format 

for records required by paragraph 

(a)(2)(vii) of this section, and any other 

records that include a time or telephone 

number, must also comply with the 

following: 

(1) The format for domestic telephone 

numbers must comport with the North 

American Numbering plan; 

(2) The format for international 

telephone numbers must comport with 

the standard established in the ITU–T 

E.164; 

(3) The time and duration of a call 

must be kept to the closest second; and 

(4) Time must be recorded in 

Coordinated Universal Time (UTC). 

(c) Failure to keep each record 

required by paragraph (a) of this section 

in a complete and accurate manner, and 

in compliance with paragraph (b) of this 

section, as applicable, is a violation of 

this Rule. 

(d) For records kept pursuant to 

paragraph (a)(2) of this section, the 

seller or telemarketer will not be liable 

for failure to keep complete and 

accurate records pursuant to this section 

if it can demonstrate, with 

documentation, that as part of its 

routine business practice: 

(1) It has established and 

implemented procedures to ensure 

completeness and accuracy of its 

records; 

(2) It has trained its personnel, and 

any entity assisting it in its compliance, 

in such procedures; 

(3) It monitors compliance with and 

enforces such procedures, and 

maintains records documenting such 

monitoring and enforcement; and 

(4) Any failure to keep complete and 

accurate records was temporary and due 

to inadvertent error. 

(e) The seller and the telemarketer 

calling on behalf of the seller may, by 

written agreement, allocate 

responsibility between themselves for 

the recordkeeping required by this 

section. When a seller and telemarketer 

have entered into such an agreement, 

the terms of that agreement will govern, 

and the seller or telemarketer, as the 

case may be, need not keep records that 

duplicate those of the other. If by 

written agreement the telemarketer 

bears the responsibility for the 

recordkeeping requirements of this 

section, the seller must establish and 

implement practices and procedure to 

ensure the telemarketer is complying 

with the requirements of this section. If 

the agreement is unclear as to who must 

maintain any required record(s), or if no 

such agreement exists, both the 

telemarketer and the seller are 

responsible for complying with this 

section. 

(f) In the event of any dissolution or 

termination of the seller’s or 

telemarketer’s business, the principal of 

that seller or telemarketer must 

maintain all records required under this 

section. In the event of any sale, 

assignment, or other change in 

ownership of the seller’s or 

telemarketer’s business, the successor 

business must maintain all records 

required under this section. 

(g) The material required in this 

section is incorporated by reference into 

this section with the approval of the 

Director of the Federal Register under 5 

U.S.C. 552(a) and 1 CFR part 51. All 

approved material is available for 

inspection at the Federal Trade 

Commission (FTC) and at the National 

Archives and Records Administration 

(NARA). Contact FTC at: FTC Library, 

(202) 326–2395, Federal Trade 

Commission, Room H–630, 600 

Pennsylvania Avenue NW, Washington, 

DC 20580; or by email at Library@

ftc.gov. For information on the 

availability of this material at NARA, 

email: fr.inspection@nara.gov or go to 

www.archives.gov/federal-register/cfr/ 

ibr-locations.html. It is available from: 

The International Telecommunications 

Union, Telecommunications 

Standardization Bureau, Place des 

Nations, CH–1211 Geneva 20; (+41 22 

730 5852); https://www.itu.int/en/ 

pages/default.aspx. 

(1) Recommendation ITU–T E.164: 

Series E: Overall Network Operation, 

Telephone Service, Service Operation 

and Human Factors, 2010. 

(2) [Reserved.] 

■ 4. Amend § 310.6 as follows: 

■ a. In paragraphs (b)(1) through (3), 

remove the text ‘‘§§ 310.4(a)(1), (a)(7), 

(b), and (c)’’ and add, in its place, the 

text ‘‘§§ 310.4(a)(1), (a)(8), (b), and (c)’’; 

and 

■ b. Revise paragraph (b)(7) to read as 

follows: 

§ 310.6 Exemptions. 

* * * * * 

(b) * * * 

(7) Telephone calls between a 

telemarketer and any business to induce 

the purchase of goods or services or a 

charitable contribution by the business, 

provided, however that this exemption 

does not apply to: 

(i) The requirements of § 310.3(a)(2) 

and (4); or 

(ii) Calls to induce the retail sale of 

nondurable office or cleaning supplies; 

provided, however, that 

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

apply to sellers or telemarketers of 

nondurable office or cleaning supplies. 

■ 5. Amend § 310.7 by revising 

paragraph (a) to read as follows: 

§ 310.7 Actions by states and private 

persons. 

(a) Any attorney general or other 

officer of a state authorized by the state 

to bring an action under the 

Telemarketing and Consumer Fraud and 

Abuse Prevention Act, and any private 

person who brings an action under that 

Act, must serve written notice of its 

action on the Commission, if feasible, 

prior to its initiating an action under 

this part. The notice must be sent to the 

Office of the Director, Bureau of 

Consumer Protection, Federal Trade 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 107 / Friday, June 3, 2022 / Proposed Rules 33695 

Commission, Washington, DC 20580, at 

tsrnotice@ftc.gov and must include a 

copy of the state’s or private person’s 

complaint and any other pleadings to be 

filed with the court. If prior notice is not 

feasible, the state or private person must 

serve the Commission with the required 

notice immediately upon instituting its 

action. 

* * * * * 

By direction of the Commission. 

April J. Tabor, 

Secretary. 

[FR Doc. 2022–09914 Filed 6–2–22; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2022–0372] 

RIN 1625–AA00 

Safety Zone; Parade, Willamette River, 

Portland, OR 

AGENCY: Coast Guard, Homeland 

Security (DHS). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard is proposing 

to establish a temporary safety zone for 

certain waters of the Willamette River. 

This action is necessary to provide for 

the safety of participants and the 

maritime public during a float parade on 

the Willamette River in Portland, 

Oregon on July 10, 2022. This proposed 

rulemaking would prohibit nonparticipant persons and vessels from 

being in the safety zone unless 

authorized by the Captain of the Port 

Columbia River or a designated 

representative. We invite your 

comments on this proposed rulemaking. 

DATES: Comments and related material 

must be received by the Coast Guard on 

or before June 21, 2022. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2022–0372 using the Federal Decision 

Making Portal at https://

www.regulations.gov. See the ‘‘Public 

Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section for 

further instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this proposed 

rulemaking, call or email LT Sean 

Murphy, Waterways Management 

Division, Marine Safety Unit Portland, 

U.S. Coast Guard; telephone 503–240– 

9319, email D13-SMBMSUPortlandWWM@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

COTP Captain of the Port Columbia River 

II. Background, Purpose, and Legal 

Basis 

On April 22, 2022, the Human Access 

Project notified the Coast Guard that it 

will need to reschedule The Big Float, 

an annually recurring marine event. The 

event consists of a float parade from 11 

a.m. to 6 p.m. on July 10, 2022. Hazards 

from a float parade include potentially 

oversized decorations, lower traffic 

speed, and falling debris. The Captain of 

the Port Columbia River (COTP) has 

determined that the potential hazards 

associated with the float parade would 

be a safety concern for anyone within 

the designated area of the safety zone 

before, during, or after the parade. 

The purpose of this rulemaking is to 

protect personnel, vessels, and the 

marine environment in these navigable 

waters before, during, and after the 

scheduled event. The Coast Guard is 

proposing this rulemaking under 

authority in 46 U.S.C. 70034 (previously 

33 U.S.C. 1231). 

III. Discussion of Proposed Rule 

The COTP is proposing to establish a 

safety zone from 10:30 a.m. until 6:30 

p.m. on July 10, 2022. The safety zone 

will cover all navigable waters of the 

Willamette River, in Portland Oregon, 

enclosed by the Hawthorne Bridge, the 

Marquam Bridge, and west of a line 

beginning at the Hawthorne Bridge at 

approximate location 45°30′50′′ N; 

122°40′21′′ W, and running south to the 

Marquam Bridge at approximate 

location 45°30′27′′ N; 122°40′11′′ W. The 

duration of the zone is intended to 

ensure the safety of vessels and these 

navigable waters before, during, and 

after the scheduled 11 a.m. to 6 p.m. 

parade. No vessel or person would be 

permitted to enter the safety zone 

without obtaining permission from the 

COTP or a designated representative. 

The regulatory text we are proposing 

appears at the end of this document. 

IV. Regulatory Analyses 

We developed this proposed rule after 

considering numerous statutes and 

Executive orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes and 

Executive orders, and we discuss First 

Amendment rights of protestors. 

A. Regulatory Planning and Review 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits. 

This NPRM has not been designated a 

‘‘significant regulatory action,’’ under 

Executive Order 12866. Accordingly, 

the NPRM has not been reviewed by the 

Office of Management and Budget 

(OMB). 

This regulatory action determination 

is based on the size, location, duration, 

and time-of-year of the safety zone. The 

safety zone created by this proposed 

rule is designed to minimize its impact 

on navigable waters. This proposed rule 

will prohibit entry into certain 

navigable waters of the Willamette River 

and is not anticipated to exceed 7 hours 

in duration. Thus, restrictions on vessel 

movement within that particular area 

are expected to be minimal. Moreover, 

under certain conditions vessels may 

still transit through the safety zone 

when permitted by the COTP. The Coast 

Guard will issue a broadcast notice to 

mariners via VHF–FM marine channel 

16 about the zone and the rulemaking 

allows vessels to seek permission to 

enter the zone. 

B. Impact on Small Entities 

The Regulatory Flexibility Act of 

1980, 5 U.S.C. 601–612, as amended, 

requires Federal agencies to consider 

the potential impact of regulations on 

small entities during rulemaking. The 

term ‘‘small entities’’ comprises small 

businesses, not-for-profit organizations 

that are independently owned and 

operated and are not dominant in their 

fields, and governmental jurisdictions 

with populations of less than 50,000. 

The Coast Guard certifies under 5 U.S.C. 

605(b) that this proposed rule would not 

have a significant economic impact on 

a substantial number of small entities. 

While some owners or operators of 

vessels intending to transit the safety 

zone may be small entities, for the 

reasons stated in section IV.A above, 

this proposed rule would not have a 

significant economic impact on any 

vessel owner or operator. 

If you think that your business, 

organization, or governmental 

jurisdiction qualifies as a small entity 

and that this proposed rule would have 

a significant economic impact on it, 

please submit a comment (see 

ADDRESSES) explaining why you think it 

qualifies and how and to what degree 


khammond on DSKJM1Z7X2PROD with PROPOSALS