Rachel Hirsch, Esq., Senior Associate
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© Ifrah PLLC (202) 524-4140 / ifrahlaw.com
SPEAKER
Senior Associate, Ifrah PLLC
2

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• Enacted In 1991, Principally To Bolster Consumer
Privacy By Addressing Issues Such As Unsolicited
Facsimiles, Pre-recorded Telemarketing Calls To
Residences, Autodialed And Pre-recorded Calls.
• Later Interpreted To Include Automated Short
Message Service (SMS) Texts To Cellular
Phones.
• Federal Communications Commission (“FCC”)
Is Empowered To Issue Rules And Regulations
Implementing The TCPA.
• As Of October 16, 2013, Marketers Must Receive Prior Express Written Consent From
Consumers Before Placing Autodialed Calls/Texts Or Generating Pre-Recorded Messages To
Cell Phones And Pre-recorded Calls Made To Residential Landlines For Telemarketing
Purposes.
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RESIDENTIAL LANDLINES
Purely Informational Calls Or Non-commercial Calls To Residential Landlines (With Or
Without An Autodialer) Do Not Require Prior Consent
Live Telemarketing (With Or Without An Autodialer) To Residential Landlines Does Not
Require Consent
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MOBILE PHONES
- Live (Non-Autodialer) Telemarketing Calls To Wireless Numbers Do Not Require Consent.
- Live (Non-Autodialer) Informational Calls To Wireless Numbers Do Not Require Consent.
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2013 Rule Changes Eliminates FCC’s Longstanding “Established Business Relationship” Exemption
For Residential Prerecorded Telemarketing Calls
REMEMBER! – Even Where Certain Exceptions Apply, Marketers Should Continue To Scrub
Federal/State Do Not Call (DNC) Databases Unless There Is An Established Business Relationship
Between The Seller And Customer Or Consent Is Obtained.
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July 10, 2015 – FCC Issues Declaratory TCPA Omnibus Declaratory Ruling And Order
• Effective As Of That Date
• Number Of Appeals Filed Challenging FCC’s New Interpretations
Autodialers – Declined To Establish Comprehensive List Of Equipment Types That Fall Within
Definition, But Established Following Principles Under Expansive Definition:
• The Term “Capacity” Within The Autodialer Definition Includes Present And Potential
Future Capability Of The Dialing Equipment;
• A Case-by-case Determination Is Necessary To Determine If Dialing Equipment That
Requires Human Intervention Is Outside The Scope Of The TCPA;
• Speed Dialer Functionality Does Not Make Equipment An ATDS Under The TCPA, But
Predictive Dialers (Or Similar Dialers That Meet This Standard Regardless Of The
Marketing Descriptions Used) Satisfy The Definition Of An Autodialer If The
Equipment Has The Requisite “Capacity” As Described In The Order; And
• An Autodialer Can Include Separately Owned And Operated Equipment That Is
Integrated To Perform A Dialing Campaign.
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Establishing/Revoking Consent
• Consent Can Be Rescinded By The
Caller/Consumer At Any Time, And Via
Any Reasonable Means
• TCPA Does Not Prohibit A Calling From
Obtaining A Consumer’s Prior Express
Consent Through An Intermediary
• TCPA Requires Consent Not Of The
Intended Recipient Of A Call, But Of The
Current Subscriber
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FCC Now Holds That Callers May Incur TCPA Liability Where They Have Actual Or Constructive Knowledge Of
Number Reassignment.
FCC Provides Following Examples Of How Callers May Learn Of Reassignments Of Wireless Numbers:
Include An Interactive Opt-out Mechanism In All Artificial Or Prerecorded-voice Calls So That Recipients May Easily Report A
Reassigned Or Wrong Number;
Implement Procedures For Recording Wrong Number Reports Received By Customer Service Representatives Placing
Outbound Calls;
Implement Processes For Allowing Customer Service Agents To Record New Phone Numbers When Receiving Calls From
Customers;
Periodically Send An Email Or Mail Request To The Consumer To Update His Or Her Contact Information;
Utilize An Autodialer’s And/Or A Live Caller’s Ability To Recognize “Triple-tones” That Identify And Record Disconnected
Numbers;
Establish Policies For Determining Whether A Number Has Been Reassigned If There Has Been No Response To A “Two-way”
Call, Such As Accessing A Paid Database That Reports A High Probability Of Number Reassignment; And
Enable Customers To Update Contact Information By Responding To Any Text Message They Receive, Which May Increase A
Customer’s Likelihood Of Reporting Phone Number Changes And Reduce The Likelihood Of A Caller Dialing A Reassigned
Number.
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The Telemarketing Sales Rule (“TSR”):
• Gives Effect To The Telemarketing And Consumer
Fraud And Abuse Prevention Act (The
“Telemarketing Act”) Signed Into Law In 1994.
• Gives The FTC And State Attorney Generals Law
Enforcement Tools To Combat Telemarketing Fraud.
• Gives Consumers Added Privacy Protections
And Defenses Against Unscrupulous
Telemarketers.
• Helps Consumers Tell The Difference Between
Fraudulent And Legitimate Marketing.
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Original TSR Dates Back To 1995
Additional Amendments In 2003, 2008, And 2010
2008 Amendment – FTC Adopted Additional Amendments To TSR
That Directly Address Use Of Pre-recorded Messages
2010 Amendment – FTC Further Amended TSR To Address Deceptive
And Abusive Practices Associated With Debt Relief
2014 – FTC Request For Public Comment On TSR
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TSR Covers Wide Variety Of Telemarketing Transactions, Including:
Inbound
Calls in
Response to
Advertising
Products
With A
Negative
Option Fee
Sale Of
Credit
Repair
Services
Prize
Promotions
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Advance
Fee Loans
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• Prohibits Calling Consumers Who Have Put Their Phone On The National Do Not Call
Registry
Coverage Of Solicitation Of Charitable Contributions By For-profit Telemarketers
Disclosures Of Specific Information
Prohibits Misrepresentations
Limits When Telemarketers May Call Consumers
Requires Transmission Of Caller ID Information
Prohibits Unauthorized Billing
Addresses Use Of Pre-recorded Messages In Telemarketing
Sets Payment Restrictions And Other Requirements For Credit Repair Services,
Recovery Services, Advance-fee Loans, And Debt Relief Services
Requires Specific Business Records To Be Kept For Two Years •
Like TCPA , Includes FTC’s Version Of Do Not Call (“DNC”) Rules And Restrictions On Use Of
Prerecorded Message Calls
Unlike TCPA , TSR Imposes Various Requirements For Inbound And Outbound Calls, Including
Disclosure And Upsell Requirements.
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“Pre-Acquired Account Information” – Consumer Provides His
Financial Account Information To A Seller To Complete A
Purchase And Is Subsequently Charged By A Different Seller For
Additional Purchases Arising From The Same Call Or Later Call
“Negative Option Offers” – Treats Consumer’s Failure To Take
An Affirmative Act To Reject The Goods Or Services As An
Acceptance Of The Offer (I.E. Continuity And Recurring Billing
Programs)
Key: Impact Of Passage Of ROSCA On TSR
Inquiry Whether TSR Should Include Requirement That Sellers
And Telemarketers Retain Records Of Telemarketing Calls
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TCPA
TSR
Types Of Calls Jurisdiction
All Calls + SMS FCC
Govt.
Enforcement
Administrative
Proceeding For Civil
Forfeiture
Private Right Of
Action
$500 In Damages Per
Violation;
Up To $1500 For
Willful Conduct; No
Damage Threshold;
Strict Liability Statute
Robocalls
Prohibits Telemarketing Robocalls
To Residential Or Wireless
Numbers Unless Caller/Seller Has
Express Written Consent
*Prohibits Calls/Messages Placed
To Wireless Numbers Using An
Autodialer Without Express
Written Consent
Consent
Written; Signed
(E-sign Ok); Clear
And Conspicuous;
Willingness Of
Consumer To
Receive
Robocalls; No
Condition Of
Purchase
Telemarketing
Calls Only
FTC (With
Jurisdictional
Limitations
Federal Court
Action For
Injunctive Relief
Brought By FTC
Directly; Civil
Penalties Brought
In Conjunction
With DOJ
Only If Amount In
Controversy Exceeds
$50,000 In Actual
Damages Per Person;
No Statutory Damages
Prohibits Telemarketing Robocalls
To Residential Or Wireless
Numbers Unless The Caller/Seller
Has Express Written Consent
*Does Not Address Calls Or Text
Messages Placed Using An
Autodialer
Written; Signed
(E-sign Ok); Clear
And Conspicuous;
Willingness Of
Consumer To
Receive
Robocalls; No
Condition Of
Purchase
Together, The TCPA And TSR Cover Nearly All Telemarketing With Similar Rules
Note: Many States Have Laws Regulating Telemarketing; No Unified System
Between State And Federal DNC List – No “One-stop” Service For Consumers
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Prohibits Calling Consumers Who Have Put Their Phone Numbers On National DNC Registry
Prohibitions Include:
Calling A Person Whose Number Is On National DNC Registry Or Person Who Asked Not To Receive Telemarketing Calls
From A Particular Company
Misusing A DNC List
Denying Or Interfering With A Person’s DNC Rights
Calling Outside Permissible Hours – I.E. Outside Hours Of 8 A.M. – 9 P.M.
Abandoning An Outbound Telephone Call (With Exception)
Placing An Outbound Telephone Call Delivering A Prerecorded Message To A Person Without That Person’s Express
Written Consent To Receive Such Calls And Without Providing An Automated Interactive Opt-out Mechanism
Failing To Transmit Caller ID Information
Using Intimidating Or Obscene Language
Causing Any Telephone To Ring Or Engaging Any Person In Telephone Conversation Repeatedly Or Continuously With
Intent To Harass
REMEMBER! – Established Business Relationship OR Written Permission To Call Exemptions
REMEMBER! – Sellers Responsible For Maintaining Individual DNC List – Potential Civil Penalty Of $16,000
Per Violation
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Requires Disclosure Of Specific Information And Prohibits Misrepresentations
Applies To Both Outbound And Inbound Calls
Must Disclose Identity Of Seller, Purpose Of Call, And Nature Of Goods Or Services Being
Offered Promptly, Up Front
Must Provide To Consumers, Without Limitation, Non-misleading Information Regarding Cost
And Quantity, Negative Option And Continuity Offer Features, Material Restrictions And
Conditions, And Refund And Cancellation Policy
Prohibits Misrepresentations Regarding Any Material Aspect Of Performance, Efficacy, Nature,
Or Central Characteristics Of Goods Or Services Offered To Consumer
Prohibits Sellers And Telemarketers From Misrepresenting Affiliations With – Or
Endorsements Or Sponsorships By – Any Person, Organization, Or Government Entity.
Note: Failure To Provide Required Information In “Clear And Conspicuous” Manner Before Consumer
Pays For Goods Or Services = Deceptive Telemarketing Act Or Practice, Subject To Civil Penalty Of
$16,000 Per Violation
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Prohibits Unauthorized Billing
Requires “Express Verifiable Authorization”
When Payment Made By:
• Credit Card (Subject To Truth In Lending Act
And Regulation Z)
• Debit Card (Subject To Electronic Fund
Transfer Act And Regulation E)
Customer Must Be Told And Acknowledge: Number Of Charges, Date Charges Will Be Submitted
For Payment, Amount Of The Charges, Customer’s Name And Billing Information; Customer
Service Telephone Number, And Date Of Authorization
Additional Rules Apply For Pre-acquired Account Information And Offer Includes Free-topay Conversion Feature
Lawful Recordings Of Verbal Authorizations Must Be Made Available Upon Request
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Prohibits Misrepresenting Any Material Aspect Of A Negative Option Feature
Of An Offer
Prohibits Sellers And Telemarketers From Misrepresenting Any Material Aspect,
Including:
• Fact That Consumer’s Account Will Be Charged
Unless The Consumer Takes An Affirmative
Action To Avoid Charges
• Dates The Charges Will Be Submitted For
Payment
• Specific Steps Customer Must Take To Avoid
Charges
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TSR Provisions Apply To:
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ALSO: Everyone In Stream Of Telemarketing
Commerce
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SUBSTANTIAL ASSISTANCE = ACTUAL KNOWLEDGE OR CONSCIOUSLY AVOIDING
SUCH KNOWLEDGE
Example: MARS Rule - Mortgage Assistance Relief Services Rule: A Compliance Guide for Business
IMPORTANT MESSAGES FOR BUSINESSES
Scope Of Liability Under TSR Is Broad – “But We Aren’t The Ones Actually Selling Stuff
Through Telemarketer” NOT A Defense
Knowing – Or Consciously Avoiding Knowing – That Business Partner Is Violating TSR
Could Land You In Legal Hot Water – Be Cautious About The Company You Keep
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FTC, State of Kansas, State of Minnesota, State of North Carolina, and State of Illinois v. Affiliate Strategies, Inc., 9-CV-4104-
JAR, 5:09-CV-04104-JAR-KGS, 11-3319 (District of Kansas U.S. Circuit Court of Appeals for the Tenth Circuit)
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United States of America, Plaintiffs v. Skyy Consulting, Inc., also d/b/a CallFire, Defendant 13-CV-2136 (N.D.C.A. May 14, 2013)
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Consumer Financial Protection Bureau v. Universal Debt & Payment Solutions LLC, et al., 1:15-cv-0859 (N.D.G.A. March 25, 2015)
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“ACCOMPLICE LIABILITY” UNDER THE TCPA – AGENCY PRINCIPLES
May 9, 2013 - FCC Declaratory Ruling Dish Network Seller May Be Vicariously Liable
For Violations Of TCPA Made By 3 rd Party Marketer
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 Listen To Your Customer
 Maintain Internal Records
 Conduct Your Due Diligence
 Secure Solid Contracts
 Review Insurance Coverage
 Respect The Law!
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website: ifrahlaw.com email: rhirsch@ifrahlaw.com twitter: @TheRealMsHirsch blogs: www.FTCbeat.com & www.CrimeInTheSuites.com
© Ifrah PLLC (202) 524-4140 / ifrahlaw.com