Compliance Confusion?

By Joan Mullen
June, 2003

From the questions that have come across my desk over the past few weeks, it is obvious that the proposed revisions to the Federal Trade Commission's (FTC) Telemarketing Sales Rule (TSR) confuse even the most knowledgeable people.  Unfortunately some areas still require clarification by the FTC.  In the meantime, all of your company's interpretations of state and federal legislation should be approved by legal counsel. 

As the FTC continues to move forward as if there were no pending lawsuits challenging their recent proposed revisions to the TSR and as the Federal Communications Commission moves toward the issuance of final rules for the TCPA (Telephone Consumer Protection Act), the states are as busy as ever with the introduction and passage of anti-telemarketing legislation.  As of last month state "do not call" (DNC) legislation was passed or extended in the following states:

• South Dakota – DNC law passed. Enforcement begins next month. Most telemarketers are exempt; others can place calls only between 9 a.m. and 9 p.m.
• Mississippi – DNC law passed. Enforcement begins in July.
• Montana – DNC law proposed.
• New Mexico - DNC law passed. Enforcement begins in January. New Mexico will defer to the national DNC Registry for both intra-state and interstate calling.
• California – as of last month, consumers can sign up for the DNC list but like in New Mexico, California will rely on the national DNC Registry.
• Utah – DNC law passed. Enforcement begins this month.
• North Dakota – extended the enforcement date for its DNC law from next month until August.

We can only hope that states will integrate their DNC lists with the national DNC Registry.  If not, we could conceivably have more than 50 from which to scrub our outbound consumer calling lists.  Because exemptions, revisions, and compliance requirements differ from state to state, it would be a nightmare to deal with so many lists at the same time.

As of this writing the most frequently asked questions about the proposed TSR revision are related to abandoned calls, free-to-pay programs and pre-acquired account information.  Let's look at one of these components, abandoned calls.

The FTC has agreed to delay enforcement of this component until October so that businesses can be prepared.  Companies should not look at this extension as a reprieve because preparation for compliance cannot be accomplished overnight.  A call is abandoned if a person answers it and the telemarketer does not connect the call to a live sales representative within 2 seconds of the person's completed greeting.  It is a violation of the TSR to abandon calls.  The FTC has allowed a safe harbor if certain conditions are met:

·         The telemarketer (or seller) must employ technology that ensures abandonment of no more than three percent of all calls answered, measured per day per calling campaign

·         The telemarketer (or seller) for each telemarketing call placed must allow the telephone to ring for at least 15 seconds or four rings before disconnecting

·         Whenever a telemarketer (or seller) is not available to speak with the person answering the call within two seconds after the person's completed greeting, the telemarketer (or seller) must promptly play a recorded message that states the name and telephone number of the seller on whose behalf the call was placed and the given telephone number must be answered by an attendant during normal business hours

·         The telemarketer (or seller) must retain records as described in the rule. (The FTC is to release more information on this) 

The free-to-pay and pre-acquired account information components can be even more confusing and intimidating, especially added to the burden of responsibility for total compliance. But some individuals and companies make it their business to assist internal telemarketing departments and outbound service agencies with the daunting task of compliance review and implementation.  This avenue should be considered because it could allow companies to focus on their core competencies while being assured they are in compliance - and keeping their profitable programs profitable.  Every company that does outbound consumer calling needs to assess the advantages of using this type of service.

We hope that the FTC and FCC will produce one national DNC list that encompasses all of the state lists.  We can also hope that the complete package will be something that we as telemarketers can comply with and still stay in business.

Joan Mullen, vice president of industry relations for Ron Weber and Associates, is the legislative chair of the DMA's Teleservices Council and a member of the DMA's TAS Committee. She has focused on teleservices industry related legislation and regulation for more than 10 years.  She can be reached at joan.mullen@telethinking.com. 

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