As previously blogged about here, on March 7, 2024, the Federal Trade Commission announced a final rule extending telemarketing fraud protections to businesses and updating the Telemarketing Sales Rule’s recordkeeping requirements.

FTC Amendments to the Telemarketing Sales Rule

The new recordkeeping requirements (have a limited exemption) are by-and-large required in order to assert a DNC safe harbor defense.

For example, records such as the calling number, the number called, if the call was placed to an individual or a business, certain customer information, certain records establishing the existence of an established business relationship (if relied upon by the caller), certain records establishing consent, including verbal consent (if relied upon by the caller) whether the call was pre-recorded (and copies pre-recorded messages), the time date and length of the call, certain records pertaining to opt-out requests, and the outcome of the call, including information pertaining to the products or services purchased. Importantly, certain records of the National DNC version utilized and the service providers used to disseminate outbound calls must also be maintained. Applicable records must now be maintained for five (5) years.

With regard to the safe harbor, the new rule provides for a safe harbor of thirty (30) days from the date of discovery of a failure to maintain accurate records in order to fix unintentional deficiencies. Note that the failure to maintain proper records is deemed a violation of the TSR and subject to monetary civil penalties of up to $51,744, per violation/call. So, relying upon a tenuous safe harbor rather than ensuring the implementation of compliance protocols is risky business.

Update Concerning the FTC’s New TSR Recordkeeping Requirements

The Federal Trade Commission modifications to the Telemarketing Sales Rule have now been published in the Federal Register. The effective date is May 16, 2024.

Importantly, the new recordkeeping requirements for telemarketing calls have an effective date of October 15, 2024. The extra time is intended to provide marketers with reasonable time to design and implement compliance processes and procedures.

Takeaway: Telemarketers and lead generators should consult with an experienced FTC lawyer to discuss recent changes to the Telemarketing Sales Rule and Telephone Consumer Protection Act in order to implement robust compliance, training and audit processes, including recordkeeping.