33662 Federal Register / Vol. 87, No. 107 / Friday, June 3, 2022 / Proposed Rules 

1 79 FR 46732. 

2The Commission addresses the comments on 

recordkeeping submitted in response to the 

Regulatory Review in its proposed NPRM being 

published in conjunction with this ANPR. 

3 15 U.S.C. 6101–6108. Subsequently, the USA 

PATRIOT Act, Public Law 107–56, 115 Stat. 272 

(Oct. 26, 2001), expanded the Telemarketing Act’s 

definition of ‘‘telemarketing’’ to encompass calls 

soliciting charitable contributions, donations, or 

gifts of money or any other things of value. 

4Statement of Basis and Purpose and Final Rule 

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

48458, 48469 (Aug. 10, 2010) (discussing the 

Commission’s use of the unfairness standard in 

determining whether a practice is ‘‘abusive’’); see 

also 15 U.S.C. 45(n) (codifying the Commission’s 

unfairness analysis, set forth in a letter from the 

FTC to Hon. Wendell Ford and Hon. John Danforth, 

Committee on Commerce, Science and 

Transportation, United States Senate, Commission 

Statement of Policy on the Scope of Consumer 

Unfairness Jurisdiction, reprinted in In re Int’l 

Harvester Co., 104 F.T.C. 949, *95–101 (1984)) 

(‘‘Unfairness Policy Statement’’). 

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

6Statement of Basis and Purpose and Final Rule 

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

effective date of the original Rule was December 31, 

1995. 

7See Statement of Basis and Purpose and Final 

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

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

and other provisions). 

radius of Columbia Regional Airport; and 

within 2.4 miles each side of the Columbia 

VOR/DME 019° radial extending from the 

6.8-mile radius of the Columbia Regional 

Airport to 7 miles north of the Columbia 

VOR/DME; and within 2 miles each side of 

the 315° bearing from the Columbia Regional 

Airport extending from the 6.8-mile radius of 

the airport to 10.7 miles northwest of the 

airport; and within 2 miles each side of the 

Columbia VOR/DME 333° radial extending 

from the 6.8-mile radius of the Columbia 

Regional Airport to 11.1 miles northwest of 

the airport. 

Issued in Fort Worth, Texas, on May 31, 

2022. 

Martin A. Skinner, 

Acting Manager, Operations Support Group, 

ATO Central Service Center. 

[FR Doc. 2022–11964 Filed 6–2–22; 8:45 am] 

BILLING CODE 4910–13–P 

FEDERAL TRADE COMMISSION 

16 CFR Part 310 

RIN 3084–AB19 

Telemarketing Sales Rule 

AGENCY: Federal Trade Commission. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: As part of the Federal Trade 

Commission’s (‘‘FTC’’ or 

‘‘Commission’’) regulatory review of the 

Telemarketing Sales Rule (‘‘TSR’’ or 

‘‘Rule’’), the Commission issues this 

advance notice of proposed rulemaking 

(‘‘ANPR’’) to seek public comment on 

whether the Rule should continue to 

exempt telemarketing calls to 

businesses, whether the Rule should 

require a notice and cancelation 

mechanism with negative option sales, 

and whether to extend the Rule to apply 

to telemarketing calls that consumers 

initiate to a telemarketer (i.e., ‘‘inbound 

telemarketing calls’’) regarding 

computer technical support services. 

DATES: Comments must be received on 

or before 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 

ANPR, R411001’’ on your comment, and 

file your comment through https://

www.regulations.gov. If you prefer to 

file your comment on paper, mail your 

comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, 600 Pennsylvania Avenue 

NW, Suite CC–5610 (Annex B), 

Washington, DC 20580. 

FOR FURTHER INFORMATION CONTACT: 

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

bdavidson@ftc.gov, or Patricia Hsue, 

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

of Marketing Practices, Bureau of 

Consumer Protection, Federal Trade 

Commission, 600 Pennsylvania Avenue 

NW, Mail Stop CC–8528, Washington, 

DC 20580. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

The Commission reviews its rules and 

guides periodically to seek information 

about their costs and benefits and their 

regulatory and economic impact. The 

information obtained assists the 

Commission in identifying rules and 

guides it should modify or rescind. 

Where appropriate, the Commission 

combines such periodic general reviews 

with reviews seeking information on 

specific questions about an industry. 

On August 11, 2014, the Commission 

initiated a regulatory review by 

publishing a notice in the Federal 

Register requesting public comment on 

the TSR (‘‘Regulatory Review’’).1 It 

sought comment on questions including 

whether the Rule continues to be 

necessary and serve a useful purpose, 

whether and how the Rule’s compliance 

burdens and costs can be decreased and 

its benefits increased, and the impact of 

changes in the marketplace and new 

technologies on the Rule. It also 

requested comment on three specific 

issues; namely, whether the Rule 

should: (1) Prohibit the sharing of 

preacquired account information for any 

purpose; (2) enhance protections for 

negative option and free offers, and 

apply them to inbound calls induced by 

general media advertising; and (3) 

require sellers and telemarketers to 

maintain records of the numbers they 

dial in their telemarketing campaigns. 

Having reviewed the record, the 

Commission is issuing a Notice of 

Proposed Rulemaking (‘‘NPRM’’) 

seeking comments on the Commission’s 

proposal to amend the TSR’s 

recordkeeping provisions and to 

prohibit deception in business-tobusiness telemarketing calls.2 The 

Commission is also issuing this ANPR 

seeking comment on whether to repeal 

all exemptions regarding telemarketing 

calls to businesses and inbound 

telemarketing of computer technical 

support services, and whether the TSR 

should provide consumers additional 

protections for negative option products 

or services. 

II. Background 

A. Statutory Basis for the TSR 

Enacted in 1994, the Telemarketing 

and Consumer Fraud and Abuse 

Prevention Act (‘‘Telemarketing Act’’ or 

‘‘Act’’) targeted deceptive and abusive 

practices in telemarketing. It directed 

the Commission to adopt a rule with 

anti-fraud and privacy protections for 

consumers receiving telephone 

solicitations to purchase goods or 

services, and authorized the 

Commission and state attorneys general 

or other appropriate state officials, as 

well as private persons who meet 

certain jurisdictional requirements, to 

bring civil actions against violators in 

Federal district court.3

In determining whether certain 

practices that do not fall distinctly 

within the parameters of the 

Telemarketing Act’s emphasis on 

protecting consumer privacy are 

‘‘abusive,’’ the Commission has applied 

the unfairness analysis set forth in 

Section 5(n) of the FTC Act.4 An act or 

practice is unfair under Section 5 of the 

Federal Trade Commission Act (‘‘FTC 

Act’’) if it causes or is likely to cause 

substantial injury to consumers, if any 

countervailing benefits to consumers or 

competition do not outweigh the 

consumer harm, and if that harm is not 

reasonably avoidable by consumers.5

B. TSR History and Key Provisions 

Pursuant to the Telemarketing Act’s 

directive, the FTC promulgated the TSR 

on August 23, 1995.6 The Commission 

subsequently amended the Rule on four 

occasions: (1) In 2003 to add the 

National Do-Not Call Registry and other 

requirements; 7 (2) in 2008 to prohibit 


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8See Statement of Basis and Purpose and Final 

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

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

robocalls). 

9See 2010 TSR Amendments (adding debt relief 

provisions). The Commission subsequently 

published correcting amendments to the text of 

section 310.4 the TSR. Telemarketing Sales Rule; 

Correcting Amendments, 76 FR 58716 (Sept. 22, 

2011). 

10See 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). 

11 16 CFR 310.2(gg) (using the same definition as 

the Telemarketing Act, 15 U.S.C. 6106(4)). The TSR, 

like the Telemarketing Act, also excludes catalog 

sales solicitations. Id. The Act also explicitly states 

that the jurisdiction of the Commission in enforcing 

the Rule is coextensive with its jurisdiction under 

Section 5 of the FTC Act. 15 U.S.C. 6105(b). 

12 16 CFR 310.6(b)(7); See also 2015 TSR 

Amendments, 80 FR at 77555 (clarifying that the 

‘‘business-to-business’’ exemption under 310.6(b)(7) 

applies only to telemarketing calls that are 

‘‘soliciting the purchase of goods or services or a 

charitable contribution [from a] business itself, 

rather than personal purchases or contributions by 

employees of the business’’). 

13 16 CFR 310.6(b)(5)–(6). Moreover, the Rule 

exempts from the National Do Not Call Registry 

provisions calls placed by for-profit telemarketers to 

solicit charitable contributions; such calls are not 

exempt, however, from the ‘‘entity-specific’’ do not 

call provisions or the TSR’s other requirements. 16 

CFR 310.6(a). 

14See, e.g., 16 CFR 310.6(b)(5)–(6) (provisions 

related to general advertisements and direct mail 

solicitations); 16 CFR 310.2(s) (definition of 

‘‘investment opportunity’’). The TSR’s definition of 

‘‘investment opportunity’’ includes anything sold in 

part based on a representation of future income. In 

addition to traditional passive investments, the 

definition can also encompass work-from-home 

opportunities, real estate seminars, multi-levelmarketing programs, and programs that purport to 

educate consumers about the stock market. 

15The TSR requires that telemarketers soliciting 

sales of goods or services promptly disclose several 

key pieces of information in an outbound telephone 

call or an internal or external upsell: (1) The 

identity of the seller; (2) the fact that the purpose 

of the call is to sell goods or services; (3) the nature 

of the goods or services being offered; and (4) in the 

case of prize promotions, that no purchase or 

payment is necessary to win. 16 CFR 310.4(d); see 

also 16 CFR 310.2(ee) (defining ‘‘upselling’’). 

Telemarketers also must disclose in any telephone 

sales call the cost of the goods or services and 

certain other material information. 16 CFR 

310.3(a)(1). In addition, the TSR prohibits 

misrepresentations about, among other things, the 

cost and quantity of the offered goods or services. 

16 CFR 310.3(a)(2). It also prohibits making false or 

misleading statements to induce any person to pay 

for goods or services or to induce charitable 

contributions. 16 CFR 310.3(a)(4). 

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

17 16 CFR 310.4(a)(2). 

18 16 CFR 310.4(a)(3). As the Commission has 

previously explained, ‘‘[in] recovery room scams 

. . . a deceptive telemarketer calls a consumer who 

has lost money, or who has failed to win a promised 

prize, in a previous fraud. The recovery room 

telemarketer falsely promises to recover the lost 

money, or obtain the promised prize, in exchange 

for a fee paid in advance. After the fee is paid, the 

promised services are never provided. In fact, the 

consumer may never hear from the telemarketer 

again.’’ Original TSR, 60 FR at 43854. 

19 16 CFR 310.4(a)(4); see 2003 TSR Amendments, 

68 FR at 4614 (finding that these three services were 

‘‘fundamentally bogus’’). 

20 16 CFR 310.4(a)(5). 

21 16 CFR 310.3(c). 

22 16 CFR 310.3(b). 

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

24 16 CFR 310.4(a)(8). 

25 16 CFR 310.4(b)(1)(iv); 16 CFR 310.4(b)(4) (call 

abandonment safe harbor). 

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

27See Motor Vehicle Mfrs. Ass’n v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29, 41–42 (1983). 

28Amended Funeral Rule Statement of Basis and 

Purpose, 59 FR 1592, 1596 (Jan. 11, 1994). 

29Federal Trade Commission Organization, 

Procedures and Rules of Practice, 16 CFR 1.25. See 

15 U.S.C. 553(e); see also 2003 TSR Amendments, 

68 FR at 4583. 

30American Optometric Ass’n v. FTC, 626 F.2d 

896, 905 (D.C. Cir. 1980). 

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

Amendments. 

unwanted sales robocalls; 8 (3) in 2010 

to ban the telemarketing of debt relief 

services requiring an advance fee; 9 and 

(4) in 2015 to ban the use in 

telemarketing of certain payment 

mechanisms widely used in fraudulent 

transactions.10

The TSR applies to virtually all 

‘‘telemarketing,’’ defined in accordance 

with the Telemarketing Act to mean ‘‘a 

plan, program, or campaign which is 

conducted to induce the purchase of 

goods or services or a charitable 

contribution, by use of one or more 

telephones and which involves more 

than one interstate telephone call.’’ 11

The Rule wholly or partially exempts 

several types of calls from its coverage. 

For example, it generally exempts 

telemarketing calls to businesses.12 It 

also generally exempts inbound calls 

placed by consumers in response to 

direct mail or general media 

advertising.13 However, there are certain 

‘‘carve-outs’’ from some of the TSR’s 

exemptions that bring certain conduct 

back within the ambit of the rule, such 

as the carve-out for calls initiated by a 

consumer in response to a general 

media advertisement relating to 

investment opportunities.14

The TSR is designed to protect 

consumers in a number of different 

ways. First, the TSR includes provisions 

governing communications between 

telemarketers and consumers, requiring 

certain disclosures and prohibiting 

material misrepresentations.15 Second, 

the TSR requires telemarketers to obtain 

consumers’ ‘‘express informed consent’’ 

to be charged on a particular account 

before billing or collecting payment and, 

through a specified process, to obtain 

consumers’ ‘‘express verifiable 

authorization’’ to be billed through any 

payment system other than a credit or 

debit card.16 Third, the TSR prohibits as 

an abusive practice requesting or 

receiving any fee or consideration in 

advance of obtaining any credit repair 

services; 17 recovery services; 18 offers of 

a loan or other extension of credit, the 

granting of which is represented as 

‘‘guaranteed’’ or having a high 

likelihood of success; 19 and debt relief 

services.20 Fourth, the TSR prohibits 

credit card laundering 21 and assisting 

and facilitating sellers or telemarketers 

engaged in violations of the TSR.22

Fifth, the TSR, with narrow exceptions, 

prohibits telemarketers from calling 

consumers whose numbers are on the 

National Do Not Call Registry or who 

have specifically requested not to 

receive calls from a particular entity.23

Finally, the TSR requires that 

telemarketers transmit to consumers’ 

telephones accurate Caller ID 

information 24 and places restrictions on 

calls made by predictive dialers 25 and 

those delivering prerecorded 

messages.26

C. Legal Standard for Retaining, 

Amending, or Repealing the TSR 

There is a presumption that an 

existing rule should be retained.27 A 

decision to retain any portion of a 

current rule may be based upon 

evidence gathered during the original 

rulemaking and the Commission’s 

subsequent enforcement experience, as 

well as evidence adduced during a new 

rulemaking.28 Moreover, the 

Telemarketing Act’s rulemaking 

authorization applies not only to an 

initial rulemaking, but also to the 

amendment or repeal of a telemarketing 

rule.29

Because of the ‘‘potentially pervasive 

and deep effect’’ of FTC rules,30 the 

Commission carefully scrutinizes the 

regulatory review record to determine 

whether the record is reliable and 

provides sufficient support for 

undertaking an industry-wide 

rulemaking or amendment proceeding. 

In particular, the Commission routinely 

evaluates a number of factors, including 

the relative costs and benefits of the 

Rule, industry compliance, the effect on 

competition and consumer choice, its 

enforcement experience, and the 

adequacy of case-by-case law 

enforcement under the FTC Act to 

address existing problems that fall 

outside the Rule’s scope.31 In addition, 

as a responsible steward of the public 

funds allocated to it by Congress, the 

Commission considers whether a 

rulemaking or amendment proceeding 

would serve the public interest, 

recognizing the rulemaking process 

requires a substantial, long-term 

investment of the Commission’s finite 

resources that could otherwise be 


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32We cite public comments here by the name of 

the commenting organization or individual and the 

comment number. Although the comment record 

lists 118 submissions, one is a duplicate, American 

Resort Development Association, Nos. 00100, 

00101; one is listed twice, Abrams, No. 00038; one 

contains a final attachment to a prior submission, 

Citizens Utility Board, No. 00037 (supplementing 

No. 00036); and one is simply a comment period 

extension request, PACE, No. 00039, that was 

granted by the Commission. 79 FR 61267 (Oct. 10, 

2014). 

33National Assn. of Attorneys General (‘‘NAAG’’), 

No. 00117 (on behalf of the attorneys general from 

37 states and one territory); U.S. Department of 

Justice (‘‘DOJ’’), No. 00111. 

34 InfoCision Management Corp., No. 00108. 

35NobelBiz, Inc., No. 00104. 

36 Visa, Inc., No. 00109. 

37American Bankers Insurance Association 

(‘‘ABIA’’), No. 00106; American Resort 

Development Association (‘‘ARDA’’), No. 00100; 

Brand Activation Association (‘‘BAA’’), No. 00115; 

Consumer Credit Industry Association (‘‘CCIA’’), No 

00098; Direct Marketing Association (‘‘DMA’’), No. 

00103; Electronic Retailing Association (‘‘ERA’’), 

No. 00095; MPA-The Association of Magazine 

Media (‘‘MPA’’), No. 00116; National Automobile 

Dealers Association (‘‘NADA’’), No. 00112; 

Newspaper Association of America (‘‘NAA’’), No. 

00099; and the Professional Association for 

Customer Engagement (‘‘PACE’’), No. 00107. 

38AARP, No. 00097; Center for Responsible 

Lending (‘‘CRL’’), No. 00093; and National 

Consumer Law Center on behalf of itself and the 

Consumer Federation of America, Americans for 

Financial Reform, Consumers Union, Consumer 

Action, Consumer Federation of California, The 

Maryland Consumer Rights Coalition, National 

Association of Consumer Advocates, U.S. PIRG, 

Virginia Citizens Consumer Council, and Consumer 

Assistance Council, Inc. of Cape Cod and the 

Islands (collectively, ‘‘NCLC’’), No. 00110. 

39The Pennsylvania State University, No. 00114. 

40Citizens Utility Board, Nos. 000356 and 00037. 

41Aside from the Citizens Utility Board 

comments, the record contains 93 consumer 

comments, but there are duplicate entries for 

Abrams, No. 00038. Several consumer comments 

sought relief from collection agency calls that the 

TSR does not cover. See, e.g., Gray, No. 00007; 

Castallo, No. 00128; Wysong, No.00015; Branner, 

No. 00121; Lehman, No. 00120; and Valdes, 

No.00014. Several advocate extending the TSR’s donot-call provisions to cover political, charity, or 

survey calls. See, e.g., Wright, No. 00002; 

Anonymous, No. 00089; Rosenow, No. 00067; 

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

42Citizens Utility Board, Nos. 00036 and 00037; 

see Rusch, 00046. 

43Ashley L., No. 00052 (TSR is ‘‘still greatly 

needed, in its entirety’’); Leef, No. 00085 (‘‘Please 

improve—or at least maintain the status quo’’); 

Wright, No. 00002 (‘‘The Do Not Call registry is a 

valuable resource for consumers and should be 

continued’’); West Italian, No. 00113 at 1 (‘‘We need 

the TSR, and its enforcement, more than ever’’). 

44AARP, No. 00097, at 2. 

45NCLC, No. 00110, at 1. 

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

Justice, No. 00102, at 1. 

47 Grossklags, No. 00114. 

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

1. 

49Citizens Utility Board, Nos. 00036 and 00037. 

50 15 U.S.C. 8401. ROSCA requires a third-party 

merchant that offers add-on products or services 

after a sale by the initial seller to obtain billing 

information directly from the consumer, rather than 

from the initial seller, so the purchaser will 

understand that there is or will be a charge for any 

add-on purchase. See also AARP, No. 00097, at 3. 

51Citizens Utility Board, Nos. 00036 and 00037. 

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

at 5. 

53Moody, No. 00094; Smith, No. 00091; Austin, 

No. 00050; Pecoraro, No. 00126; Hall, No. 00012; 

Peterson, No. 00004; Macias, No. 00123; and 

Ramseur, No. 00118. 

54Buchko, No. 00122; Harr, No. 00020; Branner, 

No. 00121; Alabi, No. 00006; Mercurio, No. 00127; 

Texas Child, No. 00018; Hines, 00124; Greenwood, 

No. 00125 Taylor, No. 00022; and Hays, No. 00049. 

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

Harr, No. 00020. 

56 Johannsen, No. 00078; Hardy, No. 00071; Boles, 

No. 00056; Olson, No. 00027; Taylor, No. 00022; 

Burton, No. 00005; Kavanaugh, No. 00041; Love, 

No. 00068; Bradshaw, No. 00065; Gallagher, No. 

00051; Waterbury, No. 00044; Dougherty, No. 

00043; Schugardt, No. 00031; McGlinchey, No. 

00042; Lennon, No. 00028; Cockerill, No. 00082; 

West Italian, No. 00113 at 2; Rynearson-Moody, 

00029; and Whi, No. 00017. 

57Thompson, No. 00010; Abrams, No. 00038; and 

Bethea, No. 00016; and Keung, No. 00023. 

58Miller, No. 00057; Marcus, No. 00026; 

Rothenbach, No. 00024; Gindin, No. 00009; Luttrell, 

00077; and Karsbaek, No. 00074. 

59Citizens Utility Board, Nos. 00036 and 00037. 

devoted to enforcement actions against 

rule violators. 

D. Summary of the Regulatory Review 

Record 

The regulatory review record contains 

114 unique responsive comments.32

They include: two comments from other 

law enforcement agencies; 33 one 

comment from a telemarketer; 34 one 

from an industry services provider; 35

one from a credit card association; 36

and ten comments from industry trade 

associations representing companies 

that provide telemarketing services, 

employ telemarketers, or make their 

own telemarketing calls to consumers.37

There are three comments on behalf of 

13 consumer advocacy groups,38 one 

from an academic,39 two submissions 

attaching essentially identical 

comments from 2,064 Illinois 

residents,40 and 92 unique comments 

from individual consumers.41

III. Regulatory Review: Continuing 

Need for the TSR 

All commenters generally agree on the 

continuing need for the TSR but differ 

in their opinions as to whether 

amendments are necessary. Consumers 

and their advocates largely argue for 

amendments they believe will enhance 

consumer protection including by 

closing ‘‘loopholes’’ in the TSR, and for 

more enforcement. Industry 

representatives, on the other hand, 

largely advocate against any 

amendments, arguing the current 

regulatory requirements, coupled with 

the existence of self-policing industry 

organizations, provide consumers 

sufficient protections. 

A. Consumer Perspective 

Consumers and their advocates all 

support the continuing need for the 

TSR. The 2,064 largely identical 

comments from Illinois consumers ask 

the Commission to ‘‘keep and 

strengthen’’ the TSR’s consumer 

protections that have ‘‘battled 

telemarketing fraud and deception for 

nearly two decades,’’ 42 and four other 

individual consumers expressly agree 

the TSR is still needed and should be 

retained.43 AARP asserts it ‘‘strongly 

agrees that there is a continuing need for 

the [TSR],44 and the National Consumer 

Law Center (‘‘NCLC’’) and other 

consumer groups state the TSR 

‘‘provides important protections for 

consumers and clear rules of the road 

for the telemarketing industry.’’ 45

Comments from two other consumer 

advocates,46 an academic engaged in 

relevant behavioral research,47 and two 

state and Federal law enforcement 

agencies 48 state while the TSR is still 

needed, it is also in need of 

improvements. In particular, consumers 

and their advocates argue for additional 

protections. These include heightened 

restrictions on the ‘‘data pass’’ of 

preacquired account information from 

an initial seller to a third party seller 49

comparable to those of the Restore 

Online Shoppers’ Confidence Act 

(‘‘ROSCA’’) for online transactions,50

extending the TSR’s requirements to 

inbound calls,51 and requiring sellers 

and telemarketers to create and 

maintain their own records of the 

numbers dialed in telemarketing 

campaigns to facilitate enforcement by 

Federal and state agencies and private 

lawsuits by injured consumers.52

More than half of the unique 

individual consumer comments make a 

case that more enforcement is needed. 

They include requests for enforcement 

against particular violators,53 reports 

about specific violations of the TSR,54

complaints about continuing unwanted 

calls,55 demands for more general 

enforcement of the TSR’s Do Not Call 

provisions,56 appeals for more severe 

penalties to deter violations or a ban on 

all telemarketing,57 and concern that 

violators are calling with impunity due 

to inadequate enforcement.58 The 2,064 

Illinois consumer comments request 

amendments that: (1) Require 

telemarketers to provide recordings of 

their calls, (2) ban third-party use of preacquired account information, and (3) 

request stronger consumer protection 

against inbound telemarketing calls 

placed in response to advertisements.59

AARP also notes the number of 

telemarketing complaints filed with the 

FTC and Federal Communications 

Commission (‘‘FCC’’) has risen 


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60AARP, No. 00097, at 5. See also NCLC at 11– 

12 (applauding FTC enforcement action targeting 

robocall facilitators). 

61BAA, No. 00115, at 2. 

62MPA, No. 00116, at 1. 

63PACE, No. 00107, at 2; see also CASRO, No. 

00105 (‘‘strongly believes there is a continuing 

need’’ for the TSR and lauding it for preventing 

harm to consumers and the legitimate research 

industry). 

64PACE, No. 00107, at 2. 

65ERA, 00095, at 2 (the TSR provides ‘‘the FTC 

with the tools it needs to prosecute offensive 

telemarketing behavior’’). See also BAA, 00115, at 

2 (the TSR provides a ‘‘robust and effective 

regulatory tool with which to investigate and 

prosecute offensive telemarketing activities’’). 

66 DMA, No. 00103, at 2; see also, e.g, BAA, No. 

00115, at 2; PACE, No. 00107, at 2; ERA, No. 00095, 

at 2 (likewise supporting the TSR but opposing any 

changes). 

67 DMA, No 00103 at 2. 

68CCIA, No. 00098, at 4. 

69PACE, No. 00107, at 2. 

70 DMA, No. 00103, at 3–4. 

71PACE, No. 00107, at 3–4 (discussing PACE– 

SRO, available at http://www.pacesroconnect.org) 

(last visited Jan. 31, 2022). 

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

6. 

73PACE, No. 00107, at 3–4. 

74 DMA, No. 00103, at 3; cf. PACE, No. 00107, at 

3 (SROs ‘‘provide greater flexibility for constantly 

changing business environments and 

technologies’’). 

75ERA, No. 00095, at 7; cf. PACE, No. 00107, at 

3 (arguing ‘‘effective SROs are a strong tool that can 

assist in preventing the need for increased 

regulations’’); DMA, No. 00103, at 3 (‘‘SelfRegulation is the Appropriate Approach’’). 

76 16 CFR 310.4(a)(6). 

77 16 CFR 310.4(a)(7). The Commission reiterates 

that Section 310.4(a)(7) is not limited to 

transactions involving preacquired account 

information, but applies to all transactions. See 

2003 TSR Amendments, 68 FR at 4620 (stating the 

unauthorized billing provision applies to all 

transactions and not just transactions involving 

preacquired account information). 

78 16 CFR 310.4(a)(7); see also 2003 TSR 

Amendments, 68 FR at 4620 (The Commission 

considered a general data pass ban on the use of 

preacquired account information but instead 

focused on the harm resulting from the use of 

preacquired account information and included a 

broader prohibition generally banning unauthorized 

billing under Part 310.4(a)(7).). 

79 15 U.S.C. 8401. 

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

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

significantly, and ‘‘a rise in complaints 

means more need for enforcement.’’ 60

B. Industry Perspective 

Industry comments support the 

continuing need for the TSR and 

generally oppose any amendments. As 

one trade organization observes, ‘‘the 

FTC’s enforcement actions under the 

Rule have provided industry with 

adequate and predictable notice as to 

what practices the agency views as 

acceptable and unacceptable.’’ 61

Another notes ‘‘[i]n its current form, the 

TSR has functioned well and continues 

to serve its purpose of protecting the 

customers we serve as well as the 

operations of legitimate businesses.’’ 62

The Professional Association for 

Customer Engagement (‘‘PACE’’) states 

‘‘[t]he Rule has had an overall positive 

impact on consumers . . . and there is 

a continuing need for the majority of its 

protections.’’ 63

PACE, however, also asserts that 

while it ‘‘supports strong enforcement 

against companies that intentionally 

violate the Rule’s DNC provisions,’’ ‘‘no 

additional substantive changes are 

necessary at this time.’’ 64 The 

Electronic Retailing Association 

(‘‘ERA’’) agrees ‘‘no revisions to the TSR 

are warranted.’’ 65

Most of the industry comments 

maintain ‘‘the current framework of 

laws, regulations, and industry selfregulation adequately covers 

telemarketing.’’ 66 The Direct Marketing 

Association (‘‘DMA’’) stresses ‘‘[a]ny 

changes to the Rule would have adverse 

impacts on the industry and consumers 

alike,’’ 67 and the Consumer Credit 

Industry Association (‘‘CCIA’’) states 

‘‘[d]ue to the multiple layers of [Federal 

and state] regulation and legislation, the 

industry is in a precarious position in 

attempting to comply.’’ 68 PACE 

similarly asks that the Commission 

‘‘consider the impact other laws and 

regulations have had on businesses 

before adopting any additional 

regulations of its own or expanding the 

reach of current regulations.’’ 69

Several industry trade associations 

emphasize the voluntary compliance 

steps they have taken by establishing 

Self-Regulatory Organizations (‘‘SROs’’) 

to enhance consumer protection. DMA’s 

Guidelines for Ethical Business Practice 

(‘‘DMA Guidelines’’) 70 and the PACE 

SRO 71 were created to ensure 

compliance not only with the TSR, but 

also all state telemarketing laws and 

regulations. DMA asserts its Guidelines 

include a ‘‘robust accountability 

program’’ that is ‘‘enforced by DMA’s 

Ethics Committee that ‘‘processes tens 

of thousands of complaints annually, 

and takes action against members and 

non-members alike,’’ including 

disclosure of ‘‘cases where companies 

failed to conform their practices to 

industry requirements.’’ 72 The PACE– 

SRO accredits contact centers that 

‘‘undergo an initial and recurring onside 

compliance assessment, and are subject 

to quarterly data audits of their 

outbound calling records, and those that 

do not comply fail to obtain 

accreditation or have their accreditation 

revoked.’’ 73

Both DMA and PACE emphasize that 

their SRO programs require compliance 

not only with telemarketing regulations, 

but also with industry ‘‘best practices,’’ 

and that they can amend SRO 

requirements to address new technology 

and other issues more quickly than 

government can amend regulations.74

The associations ask the FTC to 

encourage and support their SRO efforts 

as a ‘‘strong tool that can assist in 

preventing the need for increased 

regulations.’’ 75

The public comments on the record 

from industry and consumer 

stakeholders, as well as the 

Commission’s own law enforcement 

experience, persuade the Commission 

that the TSR continues to serve an 

important and useful public purpose. 

The Commission invites comment on 

the specific issues discussed below. 

IV. Regulatory Review: Comments on 

Specific Issues 

Commenters also provided responses 

to the specific issues identified in the 

Regulatory Review. The majority of the 

comments focused on whether the Rule 

should: (1) Prohibit or regulate the use 

or retention of preacquired account 

information; (2) enhance protections for 

negative option and free offers, and 

apply them to inbound calls induced by 

general media advertising; and (3) 

require sellers and telemarketers to 

maintain records of the numbers they 

dial in their telemarketing campaigns. 

A. Should the TSR Ban the Data Pass of 

Preacquired Account Information? 

The TSR prohibits the disclosure or 

receipt, for consideration, of 

unencrypted consumer account 

numbers for use in telemarketing, 

except to process a payment.76 It also 

prohibits telemarketers and sellers from 

causing a consumer to be charged, 

directly or indirectly, without the 

consumer’s express informed consent 

(i.e. ‘‘unauthorized billing’’) for all 

transactions, including those using 

preacquired account information.77 It 

does not, however, generally bar the 

transfer or ‘‘data pass’’ of preacquired 

consumer account information from one 

seller or telemarketer to a third party 

seller or telemarketer, unless doing so 

results in unauthorized billing.78 In 

2010, Congress enacted ROSCA,79

requiring a post-transaction third-party 

seller to obtain a consumer’s ‘‘express 

informed consent’’ to be charged,80 and 

prohibiting an ‘‘initial merchant’’ from 

disclosing the billing information of a 

consumer for use in an internet sale.81

The operating rules of three of the 

major credit card associations are 

consistent with ROSCA in prohibiting 

any ‘‘disclosure, exchange, or use’’ by 

and among their merchants of 


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

at 2. 

83AARP, No. 00097, at 3; see also Rusch, No. 

00046; Beverly Anne, No. 00066; Tripp, No. 00063; 

and West Italian, No. 00113, at 2. 

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

3, 5. 

85NCLC, No. 00110, at 4–5 (citing the harm from 

data pass that consumers cannot avoid and the lack 

of benefits to consumers or competition). 

86 VISA, No. 00109, at 4. 

87MPA, No. 00116, at 2. 

88 DMA, No. 00103, at 6. 

89ABIA, No. 00106, at 2; see also 15 U.S.C. 

6802(d); 12 CFR 1016; 15 CFR 313.12. 

90 DMA, No. 00103, at 6; PACE, No. 00107, at 4; 

see 16 CFR 310.4(a)(7). PACE also expresses 

concern that a data pass ban would prevent sellers 

from using third-party telemarketers, who must be 

able to transmit billing information back to the 

seller. 

91 16 CFR 310.3(a)(3). 

92 DMA, No. 00103, at 5; MPA, No. 00116, at 2; 

but see NAAG No. 00117, at 5 (‘‘the same consumer 

confusion which spurred ROSCA’s passage also 

exists in the telemarketing arena’’). 

93 16 CFR 310.4(a)(7). 

94 Id. 

95 16 CFR 310.3(a)(3). 

96On December 14, 2015, one year after the 

regulatory review comment period closed, the 

Commission issued antifraud amendments to the 

TSR. 2015 TSR Amendments, 80 FR at 77520. The 

amendments prohibited the use of remotely created 

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

in telemarketing. 16 CFR 310.4(a)(9) & (10). Each of 

the prohibited payment mechanisms had been 

widely used by fraudulent sellers and telemarketers 

and three commenters urged the Commission to 

adopt these amendments during the regulatory 

review comment period. AARP, No. 00097, at 3; 

NCLC, No. 00110, at 15; NAAG, No. 00117, at 12– 

13. During its rulemaking, the Commission 

concluded that the TSR’s ‘‘express verifiable 

authorization’’ requirement for payments other than 

credit or debit cards was not sufficient to prevent 

consumer harm because unscrupulous 

telemarketers that use these payment methods 

typically ignore the TSR’s restrictions. 2015 TSR 

Amendments, 80 FR at 77543. Given the 

pervasiveness of fraud resulting from these payment 

mechanisms and the minimal legitimate uses for 

them, the Commission decided to ban these 

payment mechanisms as a bright line rule that 

benefits competition and consumers. Id. at 77537. 

97See, e.g., NAAG, No. 00117, at 4–5. See also 

FTC v. Vacation Property Services, No. 

8:110cv099585, 2012 WL 1854231, at *3 (M.D. Fla. 

May 21, 2012) (rejecting defendant’s arguments that 

it had obtained consumers’ express consent through 

a separate verification call); FTC v. Publishers 

Business Services, Inc., 821 F. Supp. 2d 1205, 1224 

(D. Nev. 2010) (same). 

98See NPRM Section III.B.4. 

preacquired account information for 

their branded credit, debit and prepaid 

cards, except to process payments.82

Thus, the card association rules now 

require each merchant to obtain a 

consumer’s full account number directly 

from the consumer at the time of her 

first purchase from the merchant. In 

light of ROSCA’s passage and the 

subsequent operating rule changes of 

the credit card industry, the Regulatory 

Review sought comment on whether the 

TSR should be amended to generally 

ban the data pass of preacquired 

account information. 

AARP’s comment expresses the view 

‘‘allowing telemarketers to share 

information with third parties without 

consent creates a large loophole that 

will allow data collectors and lead 

generators to . . . harm consumers by 

signing them up for products and 

services they never intended to 

purchase or hassling them with 

unwanted telephone calls.’’ 83 The 

National Association of Attorneys 

General (‘‘NAAG’’) concurs, arguing the 

‘‘very nature of telemarketing makes the 

use of preacquired account information 

difficult to identify’’ and consumers 

should have the same protection against 

unauthorized charges arising from the 

exchange of preacquired account 

information in telemarketing sales as 

ROSCA provides in internet sales, 

because the same consumer confusion 

that spurred ROSCA’s passage exists in 

the telemarketing context.84 NCLC also 

supports a ban, and asserts data pass is 

not necessary to conduct legitimate 

business, arguing that such transfers 

meet the unfairness test the Commission 

employs to ban abusive telemarketing 

practices.85 VISA likewise urges the 

Commission to consider ‘‘[h]armonizing 

the TSR with ROSCA’’ to ensure data 

pass in telemarketing is not just 

prevented by the credit card 

associations and cannot ‘‘migrate to 

other forms of payment to the detriment 

of consumers.’’ 86

Industry advocates do not recommend 

adding a data pass ban to the TSR. The 

Association of Magazine Media 

(‘‘MPA’’) asserts that in the wake of 

ROSCA and the credit card rules, ‘‘usage 

of the data pass process has declined 

steadily,’’ and suggests that ‘‘concerns 

regarding deceptive or unfair transfers 

of preacquired account information are 

no longer necessary.’’ 87 DMA notes its 

Guidelines ‘‘instruct DMA members not 

to transfer or exchange credit card 

numbers when a consumer has a 

reasonable expectation that the 

information will be kept 

confidential.’’ 88 Another possible 

explanation is that Federal laws bar 

financial institutions from disclosing 

account numbers to non-affiliates for 

marketing purposes, including 

telemarketing.89

DMA and PACE argue against the 

need for a data pass prohibition for a 

different reason; namely, the TSR 

already requires a business to obtain a 

consumer’s ‘‘express informed consent’’ 

before it can charge her account for a 

purchase, even if it already has her 

billing information.90 Moreover, for 

payments not made by a debit or credit 

card, the TSR requires ‘‘express 

verifiable authorization’’ of the charge 

by a written authorization signed by the 

consumer, an audio recording of an oral 

authorization, or written confirmation of 

the transaction by mail.91 DMA and 

MPA also assert the evidence 

underpinning enactment of ROSCA 

cannot support a TSR data pass ban, 

because online sales are fundamentally 

different from telemarketing sales.92

At this time, it is unclear a TSR 

amendment restricting the data pass of 

preacquired account information is 

necessary to prevent unauthorized 

billing. The TSR currently prohibits 

data pass that causes unauthorized 

billing.93 It also requires sellers and 

telemarketers to obtain a consumer’s 

‘‘express informed consent’’ to be 

charged for a good, service, or charitable 

contribution for any form of payment 94

and ‘‘express verifiable authorization’’ 

for payments other than credit or debit 

cards.95 Further, card association rules 

and other Federal laws, including the 

2015 TSR payment method 

prohibitions,96 provide additional 

protections against unauthorized billing. 

The Commission, however, does 

recognize it may be difficult to identify 

when preacquired account information 

has resulted in unauthorized billing in 

the context of telemarketing, in part 

because it is not always clear whether 

consumers have provided ‘‘express 

informed consent’’ or ‘‘express 

verifiable authorization’’ (collectively, 

‘‘consent’’) for a particular transaction.97

To address this challenge, among others, 

the Commission is issuing an NPRM 

that would require telemarketers and 

sellers to retain complete records of 

consumer consent, including 

documentation on the purpose for 

which consent is sought, in the same 

manner and format that the request for 

consent is presented to consumers.98

The Commission believes the proposed 

recordkeeping requirements will help 

clarify the extent to which the use of 

preacquired account information may 

result in unauthorized billing, and 

whether additional protections against 

the data pass of preacquired account 

information are necessary. Thus, the 

Commission is seeking comment on 

these issues in the NPRM. 

B. Should the TSR Require Consumer 

Consent for the Retention of Account 

Information? 

When a consumer gives a seller or 

telemarketer her account information to 

pay for a purchase, that information will 

be covered by the TSR’s definition of 


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99 16 CFR 310.2(z). 

100NCLC, No. 00110, at 6. 

101PACE, No. 00107, at 4; DMA, No. 00103, at 7. 

MPA notes that its members generally do not retain 

account information except in the case of automatic 

renewal transactions in which case the information 

is retained as ‘‘a service of convenience.’’ No. 00116 

at 2. 

102NCLC, No. 00110, at 7. 

103 DMA, No. 00103, at 6. 

104PACE, No. 00107, at 4. 

105 DMA, No. 00103, at 3 (quoting 16 CFR 

310.4(a)(7)(ii)(A) (requiring, in any transaction 

involving preacquired account information, that 

sellers and telemarketers obtain a consumer’s 

‘‘express agreement’’ to be charged using an account 

identified with sufficient specificity for the 

consumer to understand what account will be 

charged as evidence of her ‘‘express informed 

consent’’)). 

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

107 16 CFR 310.2(r) (defining ‘‘free-to-pay 

conversion’’ as an offer in which the consumer will 

receive a product or service for free for an initial 

period and will incur an obligation to pay for it if 

she does not take affirmative action to cancel before 

the end of that trial period). 

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

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

Amendments. 

110 79 FR at 46735. 

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

112 Id. 

113 Id. 

114NCLC, No. 00110, at 7. 

115 Id. at 9–10. NCLC also advocates requiring that 

an automated toll-free telephone number be made 

available to accept cancellations without speaking 

to a representative 24 hours a day, and forbidding 

requirements for a written notice of cancellation, 

along with other conditions that make it unduly 

burdensome to cancel. 

116AARP, No. 00097, at 4; cf. NAAG, No. 00117, 

at 11 (urging that the TSR require a telemarketer to 

send a confirmation to the consumer at the time of 

enrollment in a negative option that clearly and 

conspicuously sets forth the terms of the negative 

option plan). 

‘‘preacquired account information’’ if 

the seller retains and uses the 

information for subsequent purchases in 

the same or a subsequent telemarketing 

call.99 The Regulatory Review asked 

whether sellers and telemarketers 

should be required to obtain consumer 

consent to retain preacquired account 

information to prevent unauthorized 

billing. 

Consumer advocates acknowledge 

consumers would not be surprised that 

a seller to whom they have given their 

account information has retained it, 

since sellers may need it for purposes 

such as canceling the transaction and 

crediting the consumer’s account.100

PACE and DMA also argue that from an 

industry perspective, sellers need to 

keep account information obtained 

directly from a consumer not only for 

cancellation purposes, but also to 

facilitate and expedite returns, 

exchanges, refunds, and order 

modifications.101

NCLC urges the Commission to 

amend the TSR to add four safeguards 

to protect consumers if sellers retain 

their billing information.102

Specifically, NCLC requests the 

following protections in transactions 

involving preacquired account 

information: (1) Sellers should obtain a 

consumers’ ‘‘express verifiable consent’’ 

to retain their billing information; (2) 

sellers should confirm the last four 

digits of the consumers’ account 

number, and if the account has an 

expiration date, to confirm the 

expiration date; (3) sellers should allow 

consumers the right to revoke their 

consent to retain their account 

information at any time; and (4) sellers 

should allow consumers to use a 

different account than the one 

previously provided to complete a 

transaction. 

Industry advocates argue against 

amending the TSR to add safeguards for 

transactions involving preacquired 

account information. They point out 

that the ‘‘retention [of preacquired 

account information] is different from 

charging a consumer’s account,’’ 103 and 

consumers have sufficient protection 

because the TSR already requires sellers 

to obtain a consumer’s authorization to 

charge her account even if they have the 

information on file.104 DMA also 

emphasizes that sellers and 

telemarketers must obtain a consumer’s 

‘‘express informed consent’’ before 

charging an account, and must ‘‘identify 

the account to be charged with 

‘sufficient specificity for the customer or 

donor to understand what account will 

be charged.’ ’’ 105

While NCLC’s proposals may have 

merit, neither the Commission’s law 

enforcement experience nor the 

regulatory review provide sufficient 

evidence to warrant further Commission 

action at this time. 

C. Should the TSR provide additional 

protections for negative option offers, 

including Free-to-Pay Conversion 

transactions? 

For telemarketing transactions 

involving preacquired account 

information, such as negative option 

offers, the TSR requires sellers and 

telemarketers to: (1) Identify the account 

to be charged with sufficient specificity 

so that a consumer understands what 

account will be charged; and (2) confirm 

the consumer’s ‘‘express agreement’’ to 

charge that account to complete the 

transaction. 106 For transactions 

involving both preacquired account 

information and a ‘‘free-to-pay 

conversion 107 feature, such as free-trial 

offers, the TSR provides additional 

protections by requiring sellers and 

telemarketers to record the entire 

telemarketing call, obtain the last four 

digits of the account number to be used, 

and confirm the consumer’s ‘‘express 

agreement’’ to charge that account to 

complete the transaction.108 For 

payment mechanisms other than credit 

or debit cards, the telemarketer or seller 

must also obtain ‘‘express verifiable 

authorization,’’ which for oral 

authorizations includes the number of 

times a consumer will be charged and 

the dates of those charges.109 The 

Regulatory Review sought comment on 

whether changes in the marketplace 

require additional protections for 

negative option offers, including ‘‘freeto-pay conversion’’ transactions.110

Consumer advocates argue the 

existing protections are inadequate and 

offer a myriad of recommendations for 

enhanced protections. NAAG argues 

additional protections are necessary 

because all negative option offers 

generate ‘‘confusion, misunderstanding, 

and outright deception’’ because some 

consumers do not understand that 

sellers will interpret their silence and 

inaction as authorization to charge 

recurring payments.111 NAAG suggests 

an amendment to the TSR requiring a 

statement of the negative option terms 

in the initial telemarketing transaction 

that is separate from the other terms of 

the offer, and a separate audible 

acceptance of the negative option 

terms.112 NAAG also suggests the TSR 

should require telemarketers to send a 

‘‘confirmation to the consumer, whether 

by mail or otherwise’’ whenever a 

consumer is enrolled in a negative 

option feature.113 NCLC suggests that for 

all negative option offers using 

preacquired account information, the 

TSR should require sellers and 

telemarketers to obtain full account 

numbers directly from the consumer 

every time they charge the consumer so 

consumers will understand their 

account will be charged.114

For ‘‘free-to-pay conversion’’ offers in 

particular, NCLC urges the Commission 

to adopt an amendment barring sellers 

from obtaining account information 

until the end of the trial period, or at 

least an amendment requiring sellers to 

give consumers timely phone or email 

reminders about how to avoid a charge 

a few days before they will charge the 

consumer’s account.115 AARP’s 

comment concurs and proposes 

requiring sellers to send a reminder 

notice and obtain confirmation of a 

consumer’s continued desire to 

complete the purchase not only for 

‘‘free-to-pay conversion’’ offers, but for 

all negative option offers.116


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117NAAG, No. 00117, at 11. 

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

119MPA, No. 00116, at 3; see also DMA, No. 

00103 at 6–7; ARDA, No. 00100, at 7. PACE, No. 

00107, at 4. 

120 DMA, No. 00103, at 6–7. 

121 Id. at 3. 

122PACE, No. 00107, at 4. 

123See supra VI.A. 

124See NPRM Section III.B.4. NAAG also reports 

that telemarketers are circumventing the heightened 

‘‘express informed consent’’ requirements for ‘‘freeto-pay’’ conversion offers by charging a ‘‘nominal 

upfront fee.’’ No. 00117, at 5. (‘‘By offering their 

products and services for an initial term at a 

nominal upfront price . . . telemarketers relying on 

preacquired account information circumvent the 

TSR’s requirement of obtaining the last four (4) 

digits of the consumer’s account number and the 

equally important requirement of maintaining an 

audio recording of the entire transaction.’’). The 

proposed recordkeeping requirements that clarify 

the records necessary to prove that a consumer has 

consented to a transaction should eliminate any 

incentive to circumvent the express informed 

consent requirement. 

125AARP suggests that companies ‘‘send a 

reminder to the consumer and receive confirmation 

the consumer still wants to purchase the service or 

product.’’ AARP, No. 00097, at 4. cf. NAAG, No. 

00117, at 11 (urging that the TSR require a 

telemarketer to send a confirmation to the consumer 

at the time of enrollment in a negative option that 

clearly and conspicuously sets forth the terms of the 

negative option plan). 

NAAG also advocates for stronger 

protections in the context of free-to-pay 

conversion offers. Specifically, NAAG 

suggests that the Commission extend 

Section 310.4(a)(7) to all such offers, 

even if no preacquired account 

information is used, to ensure 

telemarketers obtain a consumer’s 

express informed consent before 

telemarketers are able to bill or send 

invoices to consumers after the ‘‘free 

trial’’ is over.117

Industry advocates object to all of 

these proposed changes. DMA 

emphasizes both card association rules 

and SRO Guidelines require a thirdparty seller with preacquired account 

information to obtain the full account 

number directly from the consumer for 

‘‘free-to-pay conversion’’ offers.118

Industry also contends the TSR’s 

current requirements appropriately 

balance consumer convenience and 

protection. For example, MPA argues 

free trials and automatic renewals 

benefit consumers, particularly in 

situations where consumers are repeat 

customers and already have an 

established business relationship with 

the seller. MPA and other industry 

representatives state that requiring 

consumers to repeat their full 16-digit 

card number for each additional 

negative option offer, such as an 

automatic magazine subscription 

renewal, would frustrate consumers and 

would negatively impact legitimate 

business.119

DMA concurs, emphasizing the TSR 

and its SRO Guidelines require sellers to 

disclose all material terms of the offer, 

‘‘identify the account [to be charged] 

with specificity,’’ and ‘‘obtain 

affirmative consent from the consumer 

to charge that account.’’ 120 DMA further 

argues requiring sellers to obtain full 

account information from existing 

customers simply increases the cost and 

time involved in the transaction, thus 

frustrating consumers without providing 

any additional protections.121 PACE 

adds the TSR’s requirement that sellers 

and telemarketers obtain a consumer’s 

authorization to charge her account 

gives the FTC ‘‘ample authority to 

pursue entities charging accounts 

without proper authorization.122

As discussed above, the Commission 

is proposing to amend the TSR’s 

recordkeeping provisions to explicitly 

require telemarketers and sellers to 

retain complete and accurate records of 

consumers’ ‘‘express informed consent’’ 

to be charged for a particular 

transaction.123 In the event a transaction 

includes a negative option, including 

‘‘free-to-pay’’ or ‘‘fee-to-pay’’ conversion 

offers, a complete record of ‘‘express 

informed consent’’ must include the 

purpose for which consent is requested, 

the account that will be charged, the 

date a consumer provided consent, and 

the consumer’s consent to be charged 

using the identified account for the 

relevant good or service. The proposed 

recordkeeping requirements also require 

sellers and telemarketers to retain 

records that demonstrate they have 

comported with Section 310.4(a)(7)’s 

requirements regarding the use of 

preacquired account information. The 

Commission believes the new 

recordkeeping requirements will 

provide additional protections to 

consumers by ensuring sellers and 

telemarketers obtain actual ‘‘express 

informed consent’’ from consumers to 

be charged for a transaction with a 

negative option feature.124 The 

Commission also believes these 

requirements will be more effective than 

requiring third-party telemarketers to 

obtain the full account information from 

consumers as an indication of consent 

because consumers providing full 

account information may not 

understand that they are being sold a 

transaction with a negative option 

feature. 

The Commission is also interested in 

exploring the commenters’ suggestions 

that sellers or telemarketers provide 

consumers notice and the opportunity 

to cancel negative option transactions 

whenever they are billed.125 Requiring 

sellers or telemarketers to provide 

consumers with reminders of negative 

option programs and simple cancelation 

mechanisms may be an effective way of 

reducing consumer harm without 

overburdening industry. However, the 

Commission is aware of potential 

logistical hurdles to providing 

notification and cancelation with 

telemarketing transactions. For example, 

do telemarketers typically obtain 

consumers’ email addresses, and if so, 

would email be an effective method to 

send a notification? Should 

telemarketers provide cancelation 

mechanisms by phone or would online 

mechanisms be more convenient for 

consumers? As outlined below in 

Section V, the Commission is seeking 

comment on whether the TSR should 

require negative-option sellers to 

provide simple notice and cancelation 

mechanisms, and how these 

mechanisms should be provided. 

Beyond the changes the Commission 

is proposing to the recordkeeping 

provisions, and the Commission’s 

request for information about notice and 

cancelation mechanisms, the 

Commission does not agree with the 

additional rule proposals made by 

commenters. Commenters proposed the 

rule: (1) Require sellers and 

telemarketers to obtain a full account 

number from consumers every time they 

are charged; or (2) defer payment 

authorization until the end of the trial 

period. The Commission does not 

believe these proposals would provide 

protections against deceptive negative 

option offers that outweigh the likely 

increased consumer frustration due to 

longer, complicated transactions and 

additional burdens on industry. And 

with respect to NAAG’s suggestion that 

Section 310.4(a)(7) should be extended 

to all free-to-pay conversion 

transactions regardless of whether 

preacquired account information is 

involved, the Commission does not 

believe such an amendment is 

necessary. Section 310.4(a)(7) already 

requires telemarketers or sellers to 

obtain a consumer’s express informed 

consent to be charged for the good, 

service, or charitable contribution in all 

telemarketing transactions, including 

those that do not involve the use of 

preacquired account information. The 

Commission nonetheless reiterates that 

Section 310.4(a)(7)’s requirement of 

obtaining a consumer’s express 

informed consent before billing a 

consumer applies to all telemarketing 

transactions, including those in which 

the consumer is billed for a good or 

service at a later date after the ‘‘free 

trial’’ is over. 


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126 16 CFR 310.6(b)(5). 

127 Kapecki, No. 00084; Rosenow, No. 00067; 

Beverly Anne, No. 00066; Tripp, No. 00063; and 

Steel, No. 00070. 

128NAAG, No. 00117, at 8 (stating that the 2013 

survey reported 59.3% of fraud incidents were the 

result of fraudulent offers through general media 

advertising). 

129NCLC, No. 00110, at 7. 

130NAAG, No. 00117, at 10. 

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

132 DMA, No. 00103, at 7. 

133BAA, No. 00115, at 3. 

134MPA, No. 00116, at 4. 

135ERA, No. 00095, at 3. ERA disputes NAAG’s 

contention that the FTC’s Third Consumer Fraud 

Survey provides evidence of pervasive fraud in 

general media advertising. Compare ERA, No. 

00095, at 5 with NAAG, No. 00117, at 8. 

136ERA, No. 00095, at 5. ERA and PACE made 

these comments before the Supreme Court held that 

Section 13(b) of the FTC Act does not authorize 

courts to award equitable monetary relief. See AMG 

Capital Management, LLC v. FTC, 141 S.Ct. 1341 

(2021). 

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

138See FTC Data Spotlight, Older Adults Hardest 

Hit by Tech Support Scams (‘‘FTC Data Spotlight’’) 

(Mar. 7, 2019) (tech support scams particularly 

impact older adults), available at https://

www.ftc.gov/news-events/blogs/data-spotlight/ 

2019/03/older-adults-hardest-hit-tech-supportscams (last visited Jan. 31, 2022); FTC Report to 

Congress, Protecting Older Consumers, 2019–2020 

(‘‘2020 Protecting Older Consumers Report’’) at 6 

(Oct. 18, 2020), available at https://www.ftc.gov/ 

system/files/documents/reports/protecting-olderconsumers-2019-2020-report-federal-tradecommission/p144400_protecting_older_adults_

report_2020.pdf (last visited Jan. 31, 2022). 

139See infra Section V.A. 

140 16 CFR 310.6(b)(7). This exemption, however, 

does not apply to the telemarketing of nondurable 

office or cleaning supplies. Id. 

141 79 FR at 46738. 

142West Italian, No. 00113, at 3. 

143PACE, No. 00107, at 6. 

144 Id. 

D. Is there a need to apply outbound 

call protections to inbound calls? 

The TSR generally exempts inbound 

calls responding to media advertising, 

with some specific exceptions.126 The 

Regulatory Review asked if there is a 

need to amend the exemption in view 

of the proliferation of infomercials in 

the marketplace, including for negative 

option offers. 

Consumers and their advocates regard 

the general media exemption as a 

‘‘loophole’’ in the TSR, advocating that 

the TSR should apply to all 

telemarketing calls regardless of which 

party initiated the call.127 NAAG cites 

the Commission’s 2013 Consumer Fraud 

Survey as support because it reports that 

more than half of frauds are marketed 

through means other than 

telemarketing.128 Consumer advocates 

specifically suggest the TSR should 

apply equally to inbound and outbound 

telemarketing for negative option offers. 

NCLC asserts the TSR requirements for 

the use of preacquired account 

information in negative option offers 

should apply to all inbound calls 

responding to general media and direct 

mail ads because ‘‘the potential risks are 

the same’’ as offers in outbound 

telemarketing.129 NAAG agrees, and 

advocates an amendment to extend the 

TSR’s outbound call material terms 

disclosure requirements for negative 

option offers, as well as the ban on 

misrepresenting any aspect of such 

offers, to all inbound calls induced by 

direct mail or general media ads.130

Industry advocates uniformly oppose 

adding any limitations to either the 

general media or direct mail 

exemptions. PACE and ERA agree all 

material terms and conditions of 

negative option offers should be 

disclosed prior to any sale, but argue 

against amending the TSR to require the 

disclosures be made during an inbound 

call.131 DMA explains that required oral 

disclosures during inbound calls would 

be duplicative in many cases of 

disclosures in the marketing materials 

that induced the call.132 BAA adds that 

unlike answering outbound 

telemarketing calls, consumers placing 

inbound calls have the ‘‘luxury, time 

and discretion to decide whether to 

respond’’ to general media or direct mail 

ads, and can obtain ‘‘the information 

they need to make an informed 

purchasing decision’’ in advance of or 

during the call.133

MPA argues applying the TSR’s 

disclosure requirements to inbound 

telemarketing for newspaper 

subscriptions, particularly for existing 

customers, would add time and expense 

for industry to comply without 

providing additional consumer 

protections when the general media 

advertisement includes all material 

terms of the offer.134 ERA similarly 

argues against a disclosure requirement 

without evidence of widespread 

abuse.135 ERA joins PACE in contending 

the Commission can always rely on its 

authority under Section 5 of the FTC 

Act to bring cases against sellers that fail 

to disclose material terms in their 

advertising or during an inbound 

call.136

The general media and direct mail 

exemptions for inbound calls contain 

additional limitations that narrow the 

scope of the exemptions. For example, 

negative option sales in inbound 

telemarketing that are upsells after an 

initial purchase are expressly excluded 

from both the general media and direct 

mail exemptions.137 The TSR’s 

outbound call provisions therefore are 

equally applicable to inbound call 

upsells. 

Whether and to what extent there may 

be a problem with inbound 

telemarketing calls offering a negative 

option is unclear from the regulatory 

review record. It therefore is difficult to 

determine at this time whether there is 

a need for an amendment that would 

apply the negative option disclosure 

requirements and prohibitions or other 

protections to such calls. The 

Commission is mindful, however, of the 

rising trend of certain types of goods or 

services that are marketed through 

general media or direct mail and induce 

inbound telemarketing sales that often 

include a negative option feature. In 

particular, the Commission’s law 

enforcement experience indicates that 

scams offering computer technical 

support services (or ‘‘tech support’’) 

have been a rising trend that 

particularly impacts older adults and 

are marketed through inbound 

telemarketing.138 Many of these tech 

support services also include negative 

options. As a result, as outlined below 

in Section V, the Commission is seeking 

comment on whether the TSR should 

apply to inbound telemarketing of tech 

support services.139 The Commission 

also seeks comment in Section V.E on 

the number of sellers or telemarketers 

who deceptively sell products or 

services with negative options, other 

than tech support services, solely 

through inbound telemarketing. 

E. Should the rule continue to exempt 

business-to-business telemarketing? 

Currently the TSR exempts 

telemarketing calls to ‘‘any business to 

induce the purchase of goods or services 

or a charitable contribution by the 

business,’’ (i.e., ‘‘business-to-business 

exemption’’ or ‘‘B2B exemption’’).140

The Commission sought comment on 

how sales to a ‘‘home-based business 

should be treated’’ under the Rule.141

One comment suggests ‘‘home 

business[es] should be treated more like 

[ ] consumer[s] . . . out of deference to 

the overall home environment. . . . The 

same phone often handles both personal 

and business calls in a home business 

or in a home occupied by an 

independent consultant or 

freelancer.’’ 142

PACE, however, argues the current 

exemption ‘‘properly strikes a balance 

between consumer protection and 

overregulation and should be left 

intact.’’ 143 PACE also asserts allowing 

the exemption to continue ‘‘represents 

sound public policy and equitableness 

because it is impossible for callers to 

know whether the phone provider 

classifies the number as a residential or 

business number.’’ 144

Although the Commission did not 

receive many comments on this 


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145See infra Section V.B. 

146 Infocision, No. 00108, at 2 (amendment to 

exempt for-profit telemarketers who offer goods or 

services on behalf of non-profits (i.e., ticket sales on 

behalf of a ballet company)); NAA, No. 00099, at 

1–6 (amendment of the ‘‘established business 

relationship’’ exception to allow live calls to 

introduce digital offerings to former newspaper 

subscribers with numbers on the Do Not Call 

Registry); ARDA, No. 00100, at 2–4 (e.g., 

amendments to the prohibition to send robocalls 

and relaxing the restrictions on abandoned calls to 

existing customers); NCLC, No. 00110, at 14 

(amendment to change the assisting and facilitating 

knowledge standard from ‘‘knows or consciously 

avoids knowing’’ to ‘‘knows or has reason to 

know’’); NobelBiz, No. 00104, at 5 (amendment 

stating that the transmission of an erroneous name 

or failure to transmit a name pursuant to the TSR’s 

caller ID provision is not a violation unless there 

was intent to deceive the call recipient). 

147NAA, No. 00099, at 7–8 (amendment to 

require monthly purging of disconnected and 

reassigned numbers on the Registry which is 

unnecessary since the agency already performs such 

purging—see FTC, Do-Not-Call Improvement Act of 

2007, Report To Congress: Regarding the Accuracy 

of the Do Not Call Registry (Oct. 2008), available 

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

documents/reports/do-not-call-improvement-act2007-report-congress-regarding-accuracy-do-notcall-registry/p034305dncreport.pdf); Air Rehab. 

Corp., No. 00047 (amendment to exempt calls to 

arrange face-to-face sales meetings which are 

already exempt under Section 310.6(b)(3)); Whi, No. 

00017 (amendment to permit private lawsuits, 

which are already permitted under the 

Telemarketing Act, 15 U.S.C. 6104, and the 

Telephone Consumer Protection Act, 47 U.S.C. 

227(b)(3)). 

148See, e.g., ARDA, No. 00100, at 2, 4–6 

(amendments relating to issues under the FCC’s 

jurisdiction, including autodialers, cell phones, and 

SMS texts). 

149See, e.g., CRL, No. 00093 at 4, 10 

(acknowledging lack of data); NCLC, No. 001100, at 

18–19. 150Original TSR, 60 FR at 43859. 

151See FTC Consumer Sentinel Network 

Databook 2020, at 86, (Feb. 2021), available at 

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

reports/consumer-sentinel-network-data-book-2020/ 

csn_annual_data_book_2020.pdf (last visited Jan. 

31, 2022); FTC Consumer Sentinel Network 

Databook 2017, at 93, (list visited Jan. 31, 2022), 

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

documents/reports/consumer-sentinel-networkdata-book-2017/consumer_sentinel_data_book_

2017.pdf (last visited Jan. 31, 2022). 

152See, FTC Data Spotlight, available at https:// 

www.ftc.gov/news-events/blogs/data-spotlight/ 

2019/03/older-adults-hardest-hit-tech-supportscams (last visited Jan. 31, 2022). 

153See 2020 Protecting Older Consumers Report, 

at 6, available at https://www.ftc.gov/system/files/ 

documents/reports/protecting-older-consumers2019-2020-report-federal-trade-commission/ 

p144400_protecting_older_adults_report_2020.pdf 

(last visited Jan. 31, 2022). 

154FTC Data Spotlight, available at https://

www.ftc.gov/news-events/blogs/data-spotlight/ 

2019/03/older-adults-hardest-hit-tech-supportscams (last visited Jan. 31, 2022); see also FTC 

Report to Congress, Protecting Older Consumers, 

2018–2019, at 5 (Oct. 18, 2019), available at https:// 

www.ftc.gov/reports/protecting-older-consumers2018-2019-report-federal-trade-commission (last 

visited Jan. 31, 2022). In 2019, reports of online 

shopping frauds became the top fraud complaint for 

older consumers, with tech support scams dropping 

to second place. 2020 Protecting Older Consumers 

Report, at 7, available at https://www.ftc.gov/ 

system/files/documents/reports/protecting-olderconsumers-2019-2020-report-federal-tradecommission/p144400_protecting_older_adults_

report_2020.pdf (last visited Jan. 31, 2022). Older 

consumers, however, are less likely to report losing 

money to online shopping frauds, compared to 

younger consumers. Id. 

155See, e.g., Prepared Statement of the Federal 

Trade Commission Before the United States Senate 

Special Committee on Aging on Combatting 

Technical Support Scams (‘‘Tech Support 

Testimony’’), at 3–5 (Oct. 21, 2015), available at 

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

public_statements/826561/151021techsupport

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

question, the Commission’s law 

enforcement experience with deceptive 

business-to-business telemarketing 

along with changing market forces 

influencing where consumers perform 

their jobs and the nature of those jobs 

raise the question whether the TSR 

should continue to exempt such calls. 

Thus, for the reasons outlined below in 

Section V, the Commission is seeking 

additional comment on whether the 

TSR should continue to exempt 

business-to-business telemarketing.145

F. Other Commenter Proposals 

A number of comments have 

recommended a variety of other 

amendments to the TSR. These 

comments fall into the following 

categories: (1) Revision of prior 

determinations or interpretations the 

Commission is not inclined to 

reconsider; 146 (2) amendments the 

Commission does not believe are 

necessary; 147 (3) amendments outside of 

the agency’s jurisdiction; 148 and (4) 

amendments that lack data to support 

the suggested change.149 As such, the 

Commission is not inclined to further 

consider or implement these requested 

amendments. 

V. Request for Comments 

In determining the advisability of 

exempting certain calls from complying 

with the TSR the Commission considers 

the following factors: (1) Did Congress 

intend the TSR to cover such calls; (2) 

is the conduct or business in question 

regulated extensively by Federal or state 

law; (3) in the Commission’s law 

enforcement experience, does the 

conduct or business lend itself to the 

type of deceptive acts and practices that 

the TSR is intended to address; and (4) 

would it be unduly burdensome to 

require businesses to comply with the 

TSR compared to the likelihood that 

sellers or telemarketers engaged in fraud 

will use the existing exemption to 

circumvent the TSR’s coverage.150

To assist the Commission in 

evaluating these factors, the 

Commission seeks comments on 

whether the TSR should: (1) Apply to 

inbound telemarketing of tech support 

services; (2) apply to telemarketing to 

businesses; and (3) require telemarketers 

to provide consumers with notice that 

they are about to be billed for a negative 

option product or service and provide 

consumers with a simple cancellation 

mechanism. The Commission also seeks 

comments on the benefits and estimated 

burdens these potential rule changes 

would impose on sellers and 

telemarketers. In their replies, 

commenters should provide any 

available evidence and data that 

supports their position, such as 

empirical data on the harm to 

consumers caused by deceptive inbound 

telemarketing of tech support services, 

deceptive telemarketing to businesses, 

or the failure to provide consumers with 

notice and simple cancellation 

mechanism in negative option 

telemarketing. Commenters should also 

provide any empirical data on the costs 

to sellers or telemarketers that would be 

caused by applying the TSR’s 

requirements on inbound telemarketing 

of tech support services, telemarketing 

to businesses, or requiring notification 

and a simple cancellation mechanism 

for negative option products or services. 

The questions are designed to assist the 

public and should not be construed as 

a limitation on the issues about which 

a public comment may be submitted. 

A. Inbound Telemarketing of Computer 

Technology Support Services 

Consumer complaints about tech 

support scams have increased 

dramatically over the last few years, 

ranging from approximately 40,000 

complaints in 2017 to approximately 

100,000 complaints in 2020.151 In 2018, 

consumers reported losing more than 

$55 million to these scams, with an 

average individual loss of 

approximately $400, and an average 

individual loss for consumers over the 

age of 60 of approximately $500.152

Indeed, tech support scams 

disproportionately harm older 

consumers, with consumers age 60 and 

over being six times more likely to 

report a financial loss to tech support 

scams compared to younger 

consumers.153 From 2015 to 2018, older 

adults filed more reports on tech 

support scams than on any other fraud 

category.154

The scam typically begins with an 

outbound telemarketing call, a pop-up 

message on a consumer’s computer, or 

an advertisement that induces inbound 

telemarketing calls.155 The scammers 

typically pretend to represent wellknown companies such as Microsoft, 

McAfee, or Symantec, and in their 

outbound calls, they inform consumers 


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156 Id. 

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

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

documents/public_statements/826561/ 

151021techsupport03JNtestimony.pdf (last visited 

Jan. 31, 2022). 

158See, e.g., FTC v. Click4Support, LLC, et. al., 

No. 15–cv–05777–SD, at 9–10 (E.D. Pa. Oct. 26, 

2015), available at https://www.ftc.gov/system/files/ 

documents/cases/151113click4supportcmpt.pdf 

(last visited Jan. 31, 2022). 

159See, e.g., FTC v. Vylah Tec LLC, et. al., No. 17– 

cv–228–FtM–99MRM (M.D. Fa. May 17, 2017), 

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

documents/cases/162_3253_vylah_tec_llc_

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

160 Id. 

161See, e.g., FTC v. RevenueWire, Inc., No. 1:20– 

cv–1032 (D.D.C. April 21, 2020) (the companies to 

which RevenueWire provided payment processing 

services used pop-up dialog boxes that claimed to 

have detected computer infections and directed 

consumers to call a 1–800 number) available at 

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

revcomp3.pdf (last visited Jan. 31, 2022); FTC v. 

Boost Software, Inc., No. 14–cv–81397 (S.D. Fla. 

Nov. 10, 2014) (same as RevenueWire) available at 

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

141119vastboostcmpt.pdf (last visited Jan. 31, 

2022); FTC v. PCCare247, Inc., 12–cv–7189 

(S.D.N.Y. Oct. 3, 2012) (PCCare used paid 

advertisements that made it appear PCCare was 

affiliated with established computer companies in 

order to trick consumers to call PCCare’s 

telemarketers) available at https://www.ftc.gov/ 

sites/default/files/documents/cases/2012/10/ 

121003pccarecmpt.pdf (last visited Jan. 31, 2022). 

See also, Press Release, FTC and Federal, State and 

International Partners Announce Major Crackdown 

on Tech Support Scams (May 12, 2017) 

(announcing 16 new cases as part of tech support 

sweep) available at https://www.ftc.gov/newsevents/press-releases/2017/05/ftc-federal-stateinternational-partners-announce-major-crackdown 

(last visited Jan. 31, 2022) and ‘‘Operation Tech 

Trap Law Enforcement Actions’’ (May 2017) (listing 

cases brought as part of tech support sweep) 

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

attachments/press-releases/ftc-federal-stateinternational-partners-announce-major-crackdowntech-support-scams/operation_tech_trap_chart_of_

actions.pdf (last visited Jan. 31, 2022). 162The TSR generally exempts inbound 

telemarketing calls induced by general media 

advertisements. 16 CFR 310.6(b)(5) and (6). As 

noted in Section IV.D, supra, the TSR’s coverage 

extends to all upsells, including those in inbound 

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

that they have detected an issue on their 

computers.156 Alternatively, scammers 

use deceptive computer pop-up 

messages that tell consumers to run a 

scan resulting in numerous ‘‘error’’ 

messages.157 Or, they place search 

engine advertisements displayed when a 

consumer searches online for either the 

phone number of her computer 

company or for information about an 

issue she is having with her 

computer.158 The pop-up messages and 

search engine advertisements typically 

direct consumers to call a phone 

number to fix the purported problems. 

Once consumers connect with 

telemarketers, whether through 

outbound telemarketing or inbound, the 

telemarketers convince consumers there 

are a variety of problems with their 

computers and persuade consumers to 

purchase subscription tech support 

services 159 or software they do not 

need.160

The Commission has brought a 

multitude of cases against sellers and 

telemarketers perpetrating tech support 

frauds on consumers.161 In many of 

those cases, telemarketers have induced 

inbound telemarketing by placing 

advertisements via search engine ads, 

thus falling outside of the TSR’s 

purview unless the telemarketer also 

upsells the consumer on a good or 

service.162 Given this rising threat and 

the harm it causes to consumers, 

particularly those aged 60 and older, the 

Commission believes the time is ripe to 

consider repealing the TSR exemption 

for inbound telemarketing of tech 

support services. 

In considering this proposal, in 

addition to the questions listed below, 

the Commission seeks comment on 

whether: (1) It should add tech support 

services to the list of goods or services 

for which the inbound telemarketing 

exemptions do not apply; 163 (2) it 

should repeal the exemption only for 

general media advertisements (e.g., 

search engine ads) that induce inbound 

telemarketing of tech support services 

but retain the exemption for direct mail 

solicitation under Section 310.6(b)(6); or 

(3) it should repeal the exemption in its 

entirety but carve out an exemption for 

sellers who manufacture the computer 

at issue, and with whom the consumer 

has an existing business relationship 

(i.e., if a consumer purchased a 

computer from Microsoft, the TSR 

would not apply to any inbound 

telemarketing calls induced by or on 

behalf of Microsoft to that consumer). 

The Commission also seeks comment on 

whether tech support service scams 

impact other devices such as mobile 

phones or tablets. 

B. Questions for Inbound Telemarketing 

of Tech Support Services 

1. Should the TSR apply to inbound 

telemarketing of tech support services? 

If not, why not? If yes, why? What harm 

is caused by such calls? What benefits 

do such calls confer? What existing 

Federal or state laws apply to such calls, 

and are the existing laws sufficient or 

insufficient to address the identified 

harm? 

2. What kind of tech support services 

do sellers offer to consumers? What 

kinds of products do the tech support 

services cover? What is the nature of the 

services offered? Do the services require 

consumers to sign up for a subscription 

plan? How many services require a 

subscription plan? 

3. How many sellers or telemarketers 

sell tech support services through 

inbound telemarketing without using 

unfair or deceptive acts or practices? 

How many sellers offer those services 

only through inbound telemarketing and 

do not employ any outbound 

telemarketing? How do consumers learn 

about these sellers? Do they advertise 

through general media advertisements 

or direct mail solicitations? What kind 

of advertisements? How would 

requiring such sellers to comply with 

the TSR affect their business? How 

would it affect consumers? 

4. How many inbound telemarketing 

calls for tech support services do sellers 

or telemarketers receive on average per 

year, per month, or per day? How many 

of those calls or what percentage of 

those calls result in a sale? 

5. Do sellers or telemarketers that sell 

tech support services through inbound 

telemarketing sell those services to 

consumers, businesses, or both? If 

sellers or telemarketers are engaged in 

inbound telemarketing of tech support 

services to consumers, how many such 

calls do sellers or telemarketers receive 

on average per year, per month, or per 

day? How many of those calls or what 

percentage of those calls result in a sale? 

If sellers or telemarketers are engaged in 

inbound telemarketing of tech support 

services to businesses, how many such 

calls do sellers or telemarketers receive 

on average per year, per month, or per 

day? How many of those calls or what 

percentage of those calls result in a sale? 

6. How many inbound tech support 

telemarketing calls were induced by 

general media advertising such as 

search engine advertisements? How 

many of those calls or what percentage 

of calls induced by general media 

resulted in a sale? 

7. How many inbound tech support 

telemarketing calls were induced by a 

direct mail solicitation? How many of 

those calls or what percentage of calls 

induced by direct mail solicitations 

resulted in a sale? 

8. Do entities that manufacture and 

sell computers engage in inbound 

telemarketing of tech support services to 

businesses or consumers? If so, do such 

entities use unfair or deceptive acts or 

practices to sell their tech support 

services? If such entities engage in 

inbound telemarketing of tech support 

services to consumers, how many calls 

do such entities receive from consumers 

on average per year, per month, or per 

day? How many calls result in a sale? If 

such entities engage in inbound 

telemarketing of tech support services to 

businesses, how many calls do such 

entities receive from businesses on 


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164See Original TSR, 60 FR at 43861. 

165 2003 TSR Amendments, 68 FR at 4662. The 

Commission also considered whether to carve out 

solicitations for charitable contributions from the 

TSR’s B2B exemption. On balance, the Commission 

decided to rely on its Section 5 authority to address 

fraudulent fundraising rather than impose 

additional regulatory burdens on legitimate nonprofit organizations that already operate on very 

narrow margins. Id. at 4663. 

166The Commission proposed two definitions in 

its proposed rulemaking—internet Services and 

Web Services. 2002 Notice of Proposed Rulemaking, 

67 FR at 4500. Internet Services meant any service 

that allowed a business to access the internet, 

including internet service providers, providers of 

software and telephone or cable connections, as 

well as services that provide access to email, file 

transfers, websites, and newsgroups. Id. Web 

services was defined as ‘‘designing, building, 

creating, publishing, maintaining, providing, or 

hosting a website on the internet.’’ Id. The 

Commission intended for the term internet services 

to encompass any and all services related to 

accessing the internet and the term web services to 

encompass any and all services related to the world 

wide web. Id. 

167 Id. at 4531; see also Press Release, FTC Cracks 

Down on Small Business Scams (June 17, 1999) 

(announcing sweep of cases against fraudulent 

telemarketers who scammed small businesses by 

offering a negative option website design and 

hosting service to help small businesses create an 

internet presence), available at https://www.ftc.gov/ 

news-events/press-releases/1999/06/ftc-cracksdown-small-business-scams (last visited Jan. 31, 

2022). 

168 2003 TSR Amendments, 68 FR at 4662. 

169 Id. at 4663. 170 Id. 171 Id. 172Notice of Proposed Rule Making (‘‘2013 TSR 

NPRM’’), 78 FR 41200, 41219 (July 9, 2013). 173 Id. at 41219. 174 Id. 

average per year, per month, or per day? 

How many calls result in a sale? 

9. Should the TSR apply to inbound 

telemarketing of tech support services 

induced by advertisements through any 

medium? If yes, why, and what is the 

harm caused by such solicitations? If 

not, why not, and should the TSR apply 

to inbound telemarketing of tech 

support services induced by particular 

types of advertisements? 

10. Should the TSR apply to inbound 

telemarketing of tech support services 

induced by direct mail solicitation? If 

yes, why and what harm is caused by 

such solicitations? If not, why not? 

11. Should the TSR continue to 

exempt inbound telemarketing of tech 

support services but apply the TSR’s 

provisions regarding the use of 

prerecorded messages, including those 

that use soundboard technology? If yes, 

why and what is the harm caused by the 

use of prerecorded messages in inbound 

telemarketing of tech support services? 

If not, why not? 

12. If the Commission repeals the 

exemptions for inbound telemarketing 

of tech support services, should it create 

a carve out? What kind of carve out and 

why? Should the Commission carve out 

an exemption for entities who 

manufacture the computer at issue and 

have an existing business relationship 

with the consumer? Why or why not? 

13. How should the Commission 

define ‘‘tech support services’’? Should 

the definition apply to any type of 

technology assistance, including for any 

device (e.g., mobile phones and tablets)? 

If not, why not? If yes, why and what 

is the harm caused in connection with 

those technology assistance services? 

Have there been instances of fraud 

occurring in connection with those 

technology assistance services? How 

pervasive is this type of fraud? 

14. If the Commission considers 

employing a broad definition of tech 

support so that it either encompasses 

multiple types of services, or any form 

of technology assistance, should the 

Commission consider carve outs for a 

particular type of technology assistance? 

If yes, what carve out should the 

Commission consider and why? 

15. If the Commission repeals the 

exemptions for inbound telemarketing 

of tech support services, what burden 

would be imposed on industry? How do 

you quantify that burden? How can the 

Commission repeal the exemption for 

inbound telemarketing of tech support 

services but lessen that burden on 

industry? 

B. Business-to-Business Telemarketing 

Calls 

1. Regulatory History of Business-toBusiness Telemarketing Exemption 

The Commission has considered 

whether to narrow or clarify the 

business-to-business (‘‘B2B’’) exemption 

on several occasions since its 

promulgation in 1995.164 First, in 2003 

the Commission considered whether to 

include a carve out from the exemption 

for the sale of internet or web 

services 165 to prevent small businesses 

from being defrauded as they navigated 

the then-new world of internet 

advertising. The Commission defined 

internet or web services as services that 

enable businesses to access the internet 

or the world wide web.166 The 

Commission noted that reports of frauds 

from small businesses about 

telemarketers promoting services that 

could help them increase their internet 

presence had risen dramatically with 

the rapid adoption of internet use from 

1997 to 2002.167

Consumer advocates and law 

enforcement agencies argued the TSR 

should not exempt telemarketing of 

internet or web services to businesses 

based on extensive law enforcement 

efforts to combat the proliferation of 

fraudulent telemarketing of those 

services.168 Industry proponents argued 

the record did not support applying the 

TSR to those services in such a 

sweeping fashion and overregulation 

would result in harming small 

businesses because ‘‘it would increase 

their costs and hamper their use of Webbased advertising such as online Yellow 

Pages.’’ 169 The Commission decided 

imposing regulations without further 

evidence that its law enforcement tools 

were insufficient might negatively 

impact small businesses by increasing 

their cost and impeding their use of 

internet advertising.170 The Commission 

stated it needed to ‘‘move cautiously so 

as not to chill innovation in the 

development of cost-efficient methods 

for small businesses to join in the 

internet marketing revolution.’’ 171

The Commission revisited the B2B 

exemption in 2013 when it issued a 

Notice of Proposed Rulemaking (‘‘2013 

NPRM’’) seeking comment on whether 

to amend the exemption to explicitly 

limit it to telemarketing calls selling a 

good or service to that business or 

seeking a charitable contribution from 

that business, rather than personal 

purchases or charitable contributions of 

employees of the business.172 The 

Commission noted in its 2013 NPRM 

that it had allowed business telephone 

numbers to be listed on the FTC’s Do 

Not Call (‘‘DNC’’) Registry ‘‘because, 

among other reasons, telemarketers who 

seek to circumvent the Registry have 

solicited employees at their place of 

business to buy goods or services such 

as dietary products, auto warranties, 

and credit assistance.’’ 173 In 

implementing the amendment in 2015, 

the Commission reiterated the 

amendment is ‘‘simply a clarification of 

the scope of the existing exemption, not 

a change in its substance’’ and the 

‘‘clarification should further deter 

telemarketers from attempting to 

circumvent the Registry.’’ 174

2. Law Enforcement Experience in 

Deceptive Business-to-Business 

Telemarketing 

Since the Commission last 

considered, and declined, to 

substantively amend the B2B exemption 

to exclude services providing access to 

the internet, the marketplace has 

substantially evolved. The digital 

marketing landscape has become 

increasingly complex and rife with 

opportunities for sellers or telemarketers 

to defraud small businesses by selling 

them services to help them advertise 

their businesses online. Indeed, the 


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175See supra note 169. 176See, 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/140717onlineyellow

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

Modern Tech. Inc., et. al., No. 13–cv–8257 (Nov. 18, 

2013) available at https://www.ftc.gov/sites/default/ 

files/documents/cases/131119yellowpagescmpt.pdf 

(last visited Jan. 31, 2022); FTC v. 6555381 Canada 

Inc. d/b/a Reed Publishing, No. 09–cv–3158 (N.D. 

Ill. May 27, 2009) available at https://www.ftc.gov/ 

sites/default/files/documents/cases/2009/06/ 

090602reedcmpt.pdf (last visited Jan. 31, 2022); 

FTC v. 6654916 Canada Inc. d/b/a Nat’l. Yellow 

Pages Online, Inc., No. 09–cv–3159 (N.D. Ill. May 

27, 2009), available at https://www.ftc.gov/sites/ 

default/files/documents/cases/2009/06/ 

090602nypocmpt.pdf (last visited Jan. 31, 2022); 

FTC v. Integration Media, Inc., No. 09–cv–3160 

(N.D. Ill. May 27, 2009), available at https://

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

2009/06/090602goamcmpt.pdf (last visited Jan. 31, 

2022); FTC v. Datacom Mktg. Inc., et. al., No. 06– 

cv–2574 (N.D. Ill. May 9, 2006), available at https:// 

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

2006/05/060509datacomcomplaint.pdf (last visited 

Jan. 31, 2022); FTC v. Datatech Commc’ns, Inc., No. 

03–cv–6249 (N.D. Il. Aug. 3, 2005) (filing amended 

complaint), 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). 

177See 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). 

178See, 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). 

179A 2018 survey conducted by the Better 

Business Bureau revealed that the same scams that 

harm consumers, such as tech support scams and 

imposter scams, also harm small businesses, and 

that 57% of scams that impact small businesses are 

perpetrated through telemarketing. Better Business 

Bureau, Scams and Your Small Business Research 

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

www.bbb.org/globalassets/local-bbbs/council-113/ 

media/small-business-research/bbb_

smallbizscamsreport-final-06-18.pdf (last visited 

Jan. 31, 2022). 

180See, 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). 

181See, 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). 

182See supra note 186; see also, FTC Blog, 

Protecting Small Business from Imposters (Jan. 9 

2020), available at https://www.consumer.ftc.gov/ 

blog/2020/01/protecting-small-business-imposters 

(last visited Jan. 31, 2022). 

183See Rachel M. Krantz-Kent, Monthly Labor 

Review: Where did Workers Perform Their Jobs in 

the Early 21st Century?, U.S. Bureau of Labor and 

Statistics (July 2019), available at https://

www.bls.gov/opub/mlr/2019/article/where-didworkers-perform-their-jobs.htm (last visited Jan. 31, 

2022) (noting that ‘‘advances in information and 

communication technology allow people to reach 

their colleagues and clients by phone, email, or text 

from nearly anywhere, at all hours of the day’’ and 

that the ‘‘development and expansion of secure 

computer networks, cloud computing, and wireless 

connections provide additional flexibility in where 

and when work can be done’’). 

184A 2017 survey estimated that approximately 

43% of Americans spend some time working from 

home, with increasing numbers working remotely 

four to five days a week. Niraj Chokshi, Out of the 

Office: More People Are Working Remotely, Survey 

Finds, N.Y. Times, Feb. 15, 2017, available at 

https://www.nytimes.com/2017/02/15/us/remoteworkers-work-from-home.html (last visited Jan. 31, 

2022). See also U.S. Bureau of Labor Statistics 

(‘‘BLS’’), Ability to Work From Home: Evidence 

From Two Surveys and Implications for the Labor 

Market in the COVID–19 Pandemic, at n.1 (June 

2020), available at https://www.bls.gov/opub/mlr/ 

2020/article/ability-to-work-from-home.htm#_edn1 

(last visited Jan. 31, 2022) (citing to a survey 

conducted by Global Workforce Analytics that 

reported the number of workers who worked at 

home at least half the time increased by 115% from 

2005 to 2017); see also BLS, Job Flexibilities and 

Work Schedules—2017–2018: Data from the 

American Time Use Survey (Sept. 19, 2019), 

available at https://www.bls.gov/news.release/ 

flex2.nr0.htm (last visited Jan. 31, 2022) (reporting 

that approximately 25% of wage and salary workers 

worked at home occasionally); BLS, Work at Home 

Summary in 2004 (Sept. 25, 2005), available at 

https://www.bls.gov/news.release/homey.nr0.htm 

(last visited Jan. 31, 2022) (reporting that 

approximately 15% of workers reported working 

from home at least once per week). 

185The Federal Reserve, Update on the Economic 

Well-Being of U.S. Households: July 2020 Results, 

at 4 (Sept. 22, 2020), available at https://

www.federalreserve.gov/publications/files/2019- 

report-economic-well-being-us-households-update202009.pdf (last visited Jan. 31, 2022) (reporting 

that approximately 41% and 31% of workers were 

working from home when the surveys were 

conducted in April 2020 and July 2020, 

respectively.). 

186See Press Release, Gartner, Inc., Gartner HR 

Survey Reveals 41% of Employees Likely to Work 

Remotely at Least Some of the Time Post 

Coronavirus Pandemic (April 14, 2020), available at 

https://www.gartner.com/en/newsroom/pressreleases/2020-04-14-gartner-hr-survey-reveals-41— 

of-employees-likely-to- (last visited Jan. 31, 2022); 

See also, McKinsey & Company, The Future of 

Telework after Covid–19 (Feb. 18, 2021), available 

at https://www.mckinsey.com/featured-insights/ 

future-of-work/the-future-of-work-after-covid-19 

Continued 

expansion of the different ways to 

advertise online has been accompanied 

by numerous types of deceptive 

telemarketing schemes aimed at small 

businesses, including schemes that have 

purportedly sold business directory 

listing services, the very same services 

industry proponents claimed small 

businesses would not be able to access 

if the Commission implemented its 

proposed amendments.175 The 

Commission has brought many cases 

against fraudulent telemarketers selling 

services that purportedly assist small 

businesses to advertise online, 

including business directory listings,176

web hosting or design scams,177 and 

search engine optimization (‘‘SEO’’) 

services.178 The Commission has also 

seen deceptive telemarketing schemes 

that target businesses in other areas not 

related to online advertising services.179

In fact, the Commission has filed cases 

against other telemarketing frauds 

targeting small businesses such as 

market-specific advertising 

opportunities 180 and government 

imposter scams.181 Given the 

Commission’s law enforcement 

experience in this area showing the 

prevalence of fraud in digital marketing 

services targeting businesses, and the 

maturation of this industry, the 

Commission believes it is time to 

reconsider whether the TSR should 

continue to exempt B2B telemarketing 

at all, or at a minimum, B2B 

telemarketing of digital marketing 

services or imposter scams that harm 

businesses.182 The Commission also 

believes there is sufficient evidence to 

apply the TSR’s prohibitions against 

making material misrepresentations or 

false or misleading statements in B2B 

telemarketing and seeks comment on 

this proposal in the NPRM. 

3. Market Changes in People’s Work 

Experience 

In addition to the Commission’s law 

enforcement experience, the 

Commission also notes that since it last 

considered making substantive changes 

to the exemption in 2003, technological 

advancements, along with current 

events, have drastically affected where 

people typically perform their jobs as 

well as the types of jobs they perform. 

Specifically, technological changes have 

provided people more workplace 

flexibilities,183 resulting in greater 

numbers of people working from home 

on either a part-time or full-time 

basis.184 But more significantly, the 

COVID–19 pandemic has resulted in an 

unprecedented number of people 

working from home since March 

2020.185 Although it is difficult to 

predict whether people will continue to 

work from home in such large numbers 

in the future, industry analysts currently 

believe businesses will provide greater 

work flexibilities to their employees 

post-pandemic.186 The Commission’s 


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33674 Federal Register / Vol. 87, No. 107 / Friday, June 3, 2022 / Proposed Rules 

(last visited Jan. 31, 2022) (reporting that 

approximately 4–5 times more telework is possible 

post Covid–19 in advanced economies and in jobs 

in which remote work can be done without loss of 

productivity and that a survey of executives 

revealed they planned to reduce their office 

footprint by approximately 30%); PwC, US Remote 

Work Survey (Jan. 12, 2021), available at https://

www.pwc.com/us/en/library/covid-19/us-remotework-survey.html#content-free-1-24f5 (last visited 

Jan. 31, 2022) (reporting a hybrid workplace where 

employees rotate in and out of the offices 

configured for shared spaces is a likely outcome 

post Covid–19). 

187 2003 TSR Amendments, 68 FR at 4631. 

188Shane McFeely and Ryan Pendell, The Gig 

Economy and Alternative Work Arrangements, at 6 

(Aug. 18, 2018), available at https://

www.gallup.com/workplace/240929/workplaceleaders-learn-real-gig-economy.aspx (last visited 

Jan. 31, 2022) (reporting approximately 36% of 

workers are involved in the gig economy); see also 

The Federal Reserve, Report on the Economic WellBeing of U.S. Households in 2019, Featuring 

Supplemental Data from April 2020, at 18 (May 

2020), available at https://www.federalreserve.gov/ 

publications/files/2019-report-economic-well-beingus-households-202005.pdf (last visited Jan. 31, 

2022) (reporting approximately one in three of all 

adults engaged in gig work). Another survey 

estimated that approximately 30% of the 

population freelanced or participated in the gig 

economy in the U.S., and projected that 

approximately 50% of the population will be 

freelancing in 10 years. Elaine Pofeldt, Are We 

Ready For A Workforce That Is 50% Freelance?, 

Forbes, Oct. 17, 2017, available at https://

www.forbes.com/sites/elainepofeldt/2017/10/17/ 

are-we-ready-for-a-workforce-that-is-50-freelance/ 

#6c123af23f82 (last visited Jan. 31, 2022). See also, 

Matthew Lavietes and Michael McCoy, Waiting for 

Work: Pandemic Leaves U.S. Gig Workers 

Clamoring for Jobs, Reuters, Oct. 19, 2020, available 

at https://www.reuters.com/article/us-biggerpicturehealth-coronavirus-gigw/waiting-for-workpandemic-leaves-u-s-gig-workers-clamoring-forjobs-idUSKBN2741DM (last visited Jan. 31, 2022) 

(reporting that with unemployment soaring, more 

workers are joining the gig economy). 

189See Shane McFeely and Ryan Pendell, The Gig 

Economy and Alternative Work Arrangements, at 6 

(Aug. 18, 2018), available at https://

www.gallup.com/workplace/240929/workplaceleaders-learn-real-gig-economy.aspx (last visited 

Jan. 31, 2022) (examples of gig workers include 

Uber drivers, Task Rabbit workers, contract nurses, 

and free lancers). 

190While call-blocking technology may be 

effective for a consumer’s personal phone, 

businesses and individuals using their personal 

phones for business purposes may not feel able to 

employ call-blocking technology to the same extent 

if they anticipate receiving calls from prospective 

customers. 

191Because the TSR exempts B2B telemarketing 

calls, a seller or telemarketer engaged in B2B 

telemarketing may argue that it is not prohibited 

from calling people on the FTC’s Do Not Call 

registry if those people are also using their phone 

numbers for business purposes and the seller or 

telemarketer is calling to sell a good or service to 

a business. 

192West Italian, No. 00113, at 3. 

193The Commission is publishing an NPRM in 

conjunction with this ANPR. The NPRM proposes, 

among other things, prohibiting deception in 

business-to-business telemarketing calls. This 

ANPR seeks additional comment on the B2B 

exemption including whether it should be repealed 

in its entirety. 

194PACE, No. 00107, at 6. 

195See Serving Communities of Color: A Staff 

Report on the Federal Trade Commission’s Efforts 

to Address Fraud and Consumer Issues Affecting 

Communities of Color, available at https://

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

serving-communities-color-staff-report-federaltrade-commissions-efforts-address-fraud-consumer/ 

ftc-communities-color-report_oct_2021-508-v2.pdf 

(last visited Jan. 31, 2022). 

196See, Michael McManus, Minority Business 

Ownership: Data from the 2012 Survey of Business 

Owners, Office of Advocacy, U.S. Small Business 

Administration, at 1–2 (Sept. 14, 2016), available at 

https://cdn.advocacy.sba.gov/wp-content/uploads/ 

2016/09/07141514/Minority-Owned-Businesses-inthe-US.pdf (last accessed June 29, 2021). 

DNC Registry is meant, in part, to 

protect consumers’ privacy from an 

abusive pattern of calls.187 With more 

people working from home, the 

likelihood B2B telemarketing will 

impinge on the privacy of a consumer’s 

home is escalating. This raises the 

question whether the DNC Registry will 

still be able to effectively protect 

consumers’ privacy if the TSR is not 

extended to cover B2B telemarketing. 

Additionally, the rise of the gig 

economy and the economic impact of 

the pandemic has resulted in more 

people utilizing alternative work 

arrangements to supplement their 

income, or as a means of full-time 

employment.188 The gig economy refers 

to alternative work arrangements 

including independent contractors, 

online platform workers, contract firm 

work, on-call workers, and temporary 

workers.189 Given the nature of gig 

work, it is likely gig workers utilize 

their personal phones for business 

purposes rather than relying on separate 

phone lines dedicated for business 

purposes. Thus, for gig workers, 

allowing B2B telemarketing might 

subject them to an increasing number of 

unwanted calls they cannot avoid by 

using call-blocking technology 190 or by 

placing their numbers on the FTC’s DNC 

Registry.191 This is not a new dilemma; 

one commenter to the Regulatory 

Review highlighted it as a challenge for 

home-based businesses several years 

ago.192 But it may be on the rise along 

with the gig economy. This issue likely 

affects more than just home-based 

businesses and applies to any person 

who utilizes one phone for both 

personal purposes and business 

purposes. Despite the Commission’s 

amendments in 2015 to make explicit 

that the B2B telemarketing exemption 

only applies to the sale of goods or 

services to a business, unscrupulous 

telemarketers could take advantage of 

this rising trend to assert the B2B 

exemption should apply if a person 

does have a dual purpose phone. 

In light of these changes in workforce 

dynamics, the Commission is seeking 

comment on whether the TSR should 

continue to exempt B2B telemarketing 

calls. Specifically, the Commission 

seeks comments on whether: (1) The 

exemption should be repealed in its 

entirety; 193 (2) the exemption should be 

partially repealed so that only specific 

provisions of the TSR would apply to 

B2B telemarketing; or (3) the exemption 

should be partially repealed so that the 

TSR applies to a subset of B2B 

telemarketing based on, for example, the 

particular goods or services offered for 

sale. 

Because, as PACE has noted, 

telemarketers cannot easily differentiate 

between residential phone numbers and 

business phone numbers,194 the 

Commission believes it is possible many 

telemarketers who engage in 

telemarketing to businesses may already 

ensure that they do not make calls to 

numbers on the FTC’s DNC Registry 

even though they are not currently 

required to comply with the DNC 

provisions of the TSR. As such, the 

Commission is also particularly 

interested in seeking comment on the 

number of sellers or telemarketers who 

engage in telemarketing to businesses. 

The Commission is also interested in 

whether, in the ordinary course of 

business, such sellers or telemarketers 

make any attempts to determine 

whether a phone number is on the 

FTC’s DNC Registry or to differentiate 

between phone numbers used for 

personal purposes and those used for 

business purposes. 

From its law enforcement experience 

and through its policy work in 

connection with the Every Community 

Initiative, the Commission is cognizant 

that fraud and other consumer and 

business concerns can have 

disproportionate negative impacts on 

underserved communities.195 Thus, the 

Commission is also interested in 

understanding whether its proposal to 

apply more completely the TSR to B2B 

telemarketing will impact underserved 

communities differently. For example, 

would applying the TSR to B2B 

telemarketing impose greater burdens 

on minority-owned businesses engaged 

in telemarketing? Would it create 

barriers to entrepreneurship when 

entrepreneurs from communities of 

color are already underrepresented 

compared to their share of the 

population?196 Or would it provide 

greater protection to minority-owned 

businesses against fraud and disruptive 

telemarketing? The Commission has 

found very few sources of data on these 

issues and invites comments that can 

help the Commission understand the 

full impact of its proposal on 

underserved communities. 


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C. Questions for Business-to-Business 

Telemarketing Calls 

Questions Regarding Possible Benefits 

to People and Businesses From 

Repealing the B2B Exemption 

1. How many telemarketing calls do 

businesses and non-profit charitable 

organizations receive on average per 

year, per month, or per day? What kinds 

of goods or services are the subject of 

those B2B telemarketing calls? Do 

businesses and non-profit charitable 

organizations receive B2B telemarketing 

calls utilizing prerecorded messages, 

including soundboard technology? If 

yes, how many do businesses receive on 

average per year, per month, or per day? 

What kinds of goods or services are sold 

to businesses and non-profit charitable 

organizations via prerecorded message? 

How many of these calls involve 

soundboard technology? 

2. Do businesses and non-profit 

charitable organizations receive 

telemarketing calls soliciting charitable 

contributions? If yes, how many such 

calls do businesses receive on average 

per year, per month, or per day? On 

behalf of what kinds of organizations do 

telemarketers solicit charitable 

contributions from businesses and nonprofit charitable organizations? Do 

businesses and non-profit charitable 

organizations receive B2B telemarketing 

that use prerecorded messages to solicit 

charitable contributions? How many 

such calls do businesses and non-profit 

charitable organizations receive on 

average per year, per month, or per day? 

Do those messages utilize soundboard 

technology? 

3. Do people or businesses support 

repealing the business-to-business 

exemption from the TSR? If not, why 

not? If yes, what harm does B2B 

telemarketing cause to people, to small 

businesses, or to businesses of any size? 

What is an accurate estimate of annual 

harm suffered by businesses as a result 

of B2B telemarketing? 

4. Do underserved communities 

support repealing the business-tobusiness exemption from the TSR? If 

not, why not? If yes, what harm does 

B2B telemarketing cause to underserved 

communities? What is an accurate 

estimate of annual harm suffered by 

underserved communities as a result of 

B2B telemarketing? 

5. Do B2B telemarketing calls cause 

harm to non-profit charitable 

organizations? If yes, what harm does 

B2B telemarketing calls cause? If not, 

why not? 

6. Should the TSR apply to all B2B 

telemarketing calls? If so, why? If not, 

why not? If not, what types of B2B 

telemarketing calls should the TSR 

apply to and why? What harm do those 

B2B telemarketing calls cause to people, 

businesses, or non-profit charitable 

organizations? 

7. Should the TSR apply only to B2B 

telemarketing calls offering digital 

marketing goods or services to 

businesses or non-profit charitable 

organizations and imposter scams? If 

not, why not? If yes, why? How would 

you define digital marketing goods or 

services? What harm is caused by 

telemarketing these goods or services to 

businesses or non-profit charitable 

organizations? If the TSR were applied 

to B2B telemarketing calls of digital 

marketing goods or services or imposter 

scams harming businesses, should the 

TSR carve out any exceptions? If yes, 

what exceptions and why? 

8. Should the TSR be limited to B2B 

telemarketing calls of specific goods or 

services? If yes, what goods or services? 

What harm is caused by telemarketing 

those goods or services to businesses or 

non-profit charitable organizations? 

What existing Federal or state laws 

apply to the telemarketing of those 

goods or services to businesses or nonprofit charitable organizations? Why are 

the existing laws governing the sale of 

those goods or services to businesses or 

non-profit charitable organizations 

insufficient to prevent the identified 

harm? Should all provisions of the TSR 

apply to the telemarketing of those 

goods or services to businesses? If not, 

why not and what specific TSR 

provisions should apply? Should there 

be any carve outs from applying the TSR 

or specific provisions of the TSR to the 

telemarketing of those goods or services 

to businesses or non-profit charitable 

organizations? 

9. Should the TSR eliminate the 

exemption for inbound B2B 

telemarketing calls? If not, why not? If 

so, why? What harm is caused by 

inbound B2B telemarketing? 

10. Should the TSR eliminate the 

exemption for outbound B2B 

telemarketing calls? If not, why not? If 

so, why? What harm is caused by 

outbound telemarketing that affects 

businesses or non-profit charitable 

organizations? 

11. Should all of the provisions of the 

TSR apply to B2B telemarketing calls? If 

yes, why? If not, which provision(s) of 

the TSR should apply to B2B 

telemarketing calls? What harm would 

be prevented by applying that 

provision? 

12. Should the TSR’s provisions 

regarding the use of prerecorded 

messages apply to B2B telemarketing 

calls? If no, why not? If yes, why? What 

harm is caused by B2B telemarketing 

calls that utilize prerecorded messages? 

13. How many people work from 

home? How many days per week do 

people work from home? Do people who 

work from home use a separate phone 

number for business purposes? Do 

people who work from home use their 

personal mobile or home landline for 

business purposes? Do people who work 

from home receive B2B telemarketing 

calls? Do they receive those calls on 

their personal phone numbers or 

business phone numbers? How many 

B2B telemarketing calls do they receive? 

Do any of those B2B telemarketing calls 

use prerecorded messages? How many 

B2B telemarketing calls using 

prerecorded messages do they receive? 

What types of goods or services are 

offered for sale in B2B telemarketing 

calls that use prerecorded messages? 

14. How many people are employed 

in the gig economy? How many gig 

workers use a separate business phone 

number for their gig work? How many 

gig workers use one phone number for 

personal purposes and another for their 

gig work? Do gig workers receive B2B 

telemarketing calls? How many B2B 

telemarketing calls do they receive? Do 

any of those B2B telemarketing calls use 

prerecorded messages? How many B2B 

telemarketing calls that use prerecorded 

messages do they receive? What types of 

goods or services are offered for sale in 

the B2B telemarketing calls that gig 

workers receive? 

15. Do businesses or non-profit 

organizations employ call-blocking 

technologies? If yes, do they 

successfully reduce the number of 

unwanted B2B telemarketing calls? If 

they don’t use such technologies, why 

not? 

16. Do people who work from home 

or gig workers use call-blocking 

technologies? If yes, do they use such 

technologies on their business phones 

or personal phones? Do the callblocking technologies successfully 

reduce the number of unwanted 

telemarketing calls, including unwanted 

B2B calls, if any? If they don’t use such 

technologies, why not? 

17. How many home-based businesses 

have a dedicated phone number for 

business purposes? How many B2B 

telemarketing calls do such businesses 

receive on their business phone 

numbers on average per year, per 

month, or per day? How many homebased businesses utilize one phone 

number for both personal and business 

purposes? How many B2B telemarketing 

calls do such businesses receive on their 

dual purpose phone number on average 

per year, per month, or per day? Do 

home-based businesses use callblocking technologies? If yes, do such 

businesses use call-blocking 


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33676 Federal Register / Vol. 87, No. 107 / Friday, June 3, 2022 / Proposed Rules 

technologies on their business lines? Do 

call-blocking technologies successfully 

reduce the number of unwanted 

telemarketing calls, including unwanted 

B2B calls, if any? If not, why don’t 

home-based businesses use callblocking technologies? What types of 

goods or services are offered for sale in 

the B2B telemarketing calls that homebased businesses receive? 

18. How many small businesses have 

a dedicated phone number for business 

purposes? How many B2B telemarketing 

calls do such businesses receive on their 

business lines on average per year, per 

month, or per day? How many small 

businesses have one phone number that 

they use for personal and business 

purposes? How many B2B telemarketing 

calls do such businesses receive on their 

dual purpose phone number on average 

per year, per month, or per day? Do 

small businesses use call-blocking 

technologies? If yes, do small businesses 

use call-blocking technologies on their 

business lines? Do call-blocking 

technologies successfully reduce the 

number of telemarketing calls, including 

unwanted B2B calls, if any? If not, why 

don’t small businesses use call-blocking 

technologies? What types of goods or 

services are offered for sale in the B2B 

telemarketing calls that small businesses 

receive? 

19. How do sellers or telemarketers 

determine whether a phone number 

belongs to a person or a business? Has 

this determination been made more 

difficult by people working from home 

or participating in the gig economy? 

Questions Regarding the Potential 

Burden to Telemarketers and Sellers 

From Repealing the B2B Exemption 

1. How many sellers or telemarketers 

engage in telemarketing to businesses? 

How much revenue do sellers or 

telemarketers make in telemarketing to 

businesses and how would removing 

the exemption for B2B sales affect their 

revenue? 

2. How many sellers or telemarketers 

engage in telemarketing exclusively to 

businesses and do not engage in 

telemarketing to people? 

3. How many telemarketers solicit 

charitable contributions from 

businesses? Do those same telemarketers 

also solicit charitable contributions from 

people? 

4. What goods or services do sellers 

offer for sale to businesses through 

telemarketing? Do sellers utilize other 

means of marketing those same goods or 

services to businesses? Do sellers sell 

those same goods or services to people? 

5. How many outbound B2B 

telemarketing calls do sellers or 

telemarketers make on average per year, 

per month, or per day? How many of 

those calls or what percentage of those 

outbound B2B telemarketing calls result 

in a sale? How many inbound B2B 

telemarketing calls do sellers or 

telemarketers receive on average per 

year, per month, or per day? How many 

of those calls or what percentage of 

those inbound telemarketing calls result 

in a sale? Do sellers or telemarketers 

keep records of the outbound calls or 

inbound B2B telemarketing calls in the 

ordinary course of business? What type 

of records do sellers or telemarketers 

keep of those telemarketing calls? How 

long are they kept? 

6. Do sellers or telemarketers offer 

goods or services to businesses by using 

prerecorded messages, including 

through soundboard technology? If so, 

how many B2B telemarketing calls do 

sellers or telemarketers make using 

prerecorded messages on average per 

year, per month, or per day? How many 

of those calls result in a sale? 

7. Do sellers or telemarketers make 

B2B telemarketing calls involving debt 

relief services? If so, how many calls 

involving debt relief services do sellers 

or telemarketers make on average per 

year, per month, or per day? How many 

of those calls or what percentage of 

those calls result in a sale? 

8. What is the estimated burden of 

complying with the TSR if the B2B 

exemption is repealed for both 

outbound and inbound telemarketing? 

What is the basis for the estimated 

burden? 

9. What is the estimated burden of 

complying with the TSR if the B2B 

exemption for outbound telemarketing 

is repealed? What is the basis for the 

estimated burden? 

10. What is the estimated burden to 

underserved communities of complying 

with the TSR if the B2B exemption is 

repealed for outbound telemarketing? 

What is the estimated burden to 

underserved communities of complying 

with the TSR if the B2B exemption is 

repealed for inbound telemarketing? 

What is the basis for the estimated 

burden? 

11. What is the estimated burden of 

complying with the TSR if the B2B 

exemption is repealed for the sale of 

digital marketing goods or services or 

imposter scams that harm businesses? 

What is the basis for the estimated 

burden? 

12. What is the estimated burden of 

complying with the TSR if the B2B 

telemarketing calls are required to 

comply with the TSR’s provisions 

regarding prerecorded messages? What 

is the basis for the estimated burden? 

13. Do sellers or telemarketers who 

engage in B2B telemarketing take any 

steps to ensure they are not making calls 

to phone numbers on the DNC Registry? 

If so, what steps do sellers or 

telemarketers take? Do such sellers or 

telemarketers also engage in 

telemarketing to people? Do sellers or 

telemarketers who engage in B2B 

telemarketing exclusively take steps to 

ensure that they are not making calls to 

phone numbers on the FTC’s DNC 

Registry? If so, what steps do such 

sellers or telemarketers take? Do they 

access the DNC Registry? 

D. Questions for Negative Option Notice 

and Cancelation Mechanisms 

As discussed in Section IV.C, the 

Commission seeks comment on the 

proposal that negative option sellers and 

telemarketers provide consumers with 

notice and the opportunity to cancel 

before they are billed for negative option 

products. The Commission also seeks 

comment on the scope of deceptive or 

abusive inbound telemarketing with a 

negative option feature. 

1. How many telemarketing calls 

involve a negative option feature on 

average per year, per month, or per day? 

How many of those calls or what 

percentage of those calls result in a sale? 

2. Which industries offer negative 

option goods or services through 

telemarketing and what products do 

they sell? How many of the goods or 

services sold by these industries are 

sold through telemarketing that includes 

negative options? 

3. When sellers or telemarketers sell 

goods, or services with negative option 

features, how often (e.g., weekly, 

monthly, annually) do the sellers bill 

consumers and businesses? 

4. Do sellers or telemarketers already 

provide consumers notice when 

consumers and businesses are billed as 

part of negative option programs? How 

is that notice provided? How often is the 

notice provided before the consumer 

and business is billed? What is the cost 

of providing this notice? 

5. Do consumers want notification 

that they are about to be charged for a 

subscription plan? If so, how would 

they like to be notified? How often 

would they like to be notified? When 

would they like the notification to take 

place (e.g., one week before being 

charged)? 

6. What cancelation mechanisms do 

sellers or telemarketers provide for 

consumers and businesses to cancel 

their negative option programs? What is 

the cost of these mechanisms? Are some 

mechanisms easier for consumers to use 

than others? If sellers or telemarketers 

offer multiple cancelation mechanisms, 

how often do consumers use each 

mechanism? 


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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 


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