FTC Piles on Additional Recordkeeping Requirements and Business-to-Business Protections

The Rule-A-Palooza continues at the FTC. On March 7, 2024, the Federal Trade Commission (FTC) released a Final Rule that updates the recordkeeping requirements under the Telemarketing Sales Rule (TSR). The Final Rule requires telemarketers and sellers to maintain additional records relating to their telemarketing transactions. The FTC also extended the period for which all records must be kept—now five years instead of two. The Final Rule also extended the prohibition of material misrepresentations and false or misleading statements in business-to-business (B2B) calls.

New Recordkeeping Requirements

According to the FTC, the newly added recordkeeping requirements are meant to help the FTC identify the telemarketer and seller and to link the content of the telemarketing calls with the call detail records to determine TSR violations. The new requirements are as follows:

Each unique prerecorded message

The Final Rule now requires retention of a copy of each unique robocall, such as telemarketing and upsell scripts and a copy of each unique prerecorded message

Call detail records

Required call details include the calling number, called number, time, date, and duration of the call. It also includes the disposition of the call, such as whether the call was answered, dropped, transferred, or connected. Exempted from these requirements are calls made by an individual telemarketer who manually enters a single telephone number to initiate a call

Nature and purpose of calls

Information about each call that must be recorded includes:

• The telemarketer who placed or received each call
• The seller or charity for which the telemarketing call is placed or received
• The good, service, or charitable purpose that is the subject of the call
• Whether the call is to a consumer or business that utilizes robocalls

Prize recipients

The last known telephone number and physical or email address for each prize recipient

Customer records

The retention of the customer’s last known telephone number and the customer’s last known physical address or email address

Established business relationship

To prove an EBR, the seller must keep a record of the name and last known phone number of that consumer, the date the consumer submitted an inquiry or application regarding that seller’s goods or services, and the goods or services inquired about

Previous donor

For charitable purposes, if a telemarketer intends to assert that a consumer is a previous donor, they must keep a record, for each such consumer, of the name and last known phone number of that consumer, and the last date that the consumer donated to the particular charity. The Rule also revised the definition of a previous donor to an individual who has donated to a particular charity within the two-year period immediately preceding the date the consumer receives a robocall on behalf of that charity

Records of consent

The Final Rule clarified that only maintaining a list of IP addresses and timestamps of visits to that IP address as proof of consent is insufficient. Instead, telemarketers and sellers must maintain records of that consumer’s name and phone number, a copy of the consent requested in the same manner and format that it was presented to that consumer, a copy of the consent provided, the date the consumer provided consent, and the purpose for which consent was given and received. For consent obtained via websites, a copy of the webpages that were used to request consent from the consumer should be maintained. For verbal consent, a telemarketer or seller must retain a recording of the consent

Other service providers

For service providers where the seller or telemarketer has a business relationship, records of all service providers that the telemarketer uses to deliver an outbound call in their telemarketing campaigns should be stored. This would include applicable contracts, the date the contract was signed, and the time period in which the contract is in effect

Entity-specific DNC list

When a consumer requests to be added to an entity-specific DNC list, the following should be recorded:

• The consumer’s name
• The phone number(s) associated with the DNC request
• The seller or charitable organization from which the consumer does not wish to receive calls
• The telemarketer that made the call
• The date the DNC request was made
• The good or service being offered for sale or the charitable purpose for which contributions are being solicited

DNC Registry

Sellers and telemarketers must retain records of which version of the DNC Registry they used, by keeping records of:

• The name of the entity that accessed the registry
• The date the DNC Registry was accessed
• The subscription account number that was used to access the registry
• The telemarketing campaign(s) for which it was accessed

Misrepresentations in B2B calls

The FTC also expanded the scope of the TSR to protect small businesses. B2B telemarketing calls must now comply with the prohibition on misrepresentations and the prohibition on false or misleading statements.

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