December 2, 2008

Effective December 1, 2008, any telemarketing call that delivers a prerecorded message must include a quick and easy way to opt-out of receiving future calls. The opt-out must work both for consumers who answer these calls in person and for those whose answering machines or voicemail services receive the calls.

Prerecorded telemarketing messages are permitted only in limited circumstances – only when the caller has an established business relationship with the consumer being called. Now, additional restrictions on prerecorded messages are going into effect. Under Do Not Call amendments adopted in August, effective today, any permitted prerecorded message must provide the called consumer with an interactive means to opt out of receiving future calls from the seller or fundraiser using the prerecorded message. Moreover, the consumer must be able to opt out at any time while the message is playing by pressing a particular number or speaking a particular word. Once the consumer has opted out, his or her phone number must be automatically added to the in-house Do Not Call list of the calling seller or fundraiser. Then the call immediately must be disconnected so that the consumer’s line is cleared.

If the prerecorded telemarketing message is left on an answering machine or voicemail service, it must include a toll-free opt-out number that, when called, also connects to an automated voice or keypress opt-out mechanism. This will allow consumers to opt out at any hour of the day or night when they retrieve the message, without having to wait until the next business day to call.

All recorded telemarketing calls subject to the Commission’s Telemarketing Sales Rule (TSR) must comply with the new requirements, including calls to solicit sales of goods or services and calls placed by telemarketers to solicit charitable donations. Some calls delivering prerecorded messages (such as political calls, bona fide market survey calls, and calls made in-house by banks or telephone companies) are not covered by the new requirement, however, because the Commission lacks the legal authority to regulate them. In addition, prerecorded healthcare messages covered by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) are exempt from the new requirement.

The automated opt-out requirement is the first of two measures provided by the recent TSR amendment to protect consumers’ privacy at home. The second measure prohibits telemarketing calls that deliver prerecorded messages to anyone who has not agreed in advance to receive such calls. But until September 1, 2009, sellers may continue to use prerecorded messages in calling consumers with whom they have an established business relationship. After that date, sellers may use prerecorded messages only in calls to consumers who have expressly agreed in advance to receive them.

Copies of the prerecorded call amendments to the TSR are available from the FTC's Web site at http://www.ftc.gov and also from the FTC's Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC's online Complaint Assistant at www.ftccomplaintassistant.gov or call 1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 1,500 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC's Web site provides free information on a variety of consumer topics.