What Telemarketers and Lead Generators Should Know About the FTC’s New TSR Recordkeeping Rules

March 27, 2024 / Richard B. Newman
As blogged about recently, 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. Specifically, the final rule implements updates that prohibit deceptive and abusive practices in all business-to business calls; updates the TSR’s recordkeeping requirements; and proposed an amendment to the TSR that would extend the TSR to over inbound telemarketing calls involving technical support services.

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.

Takeaway: Telemarketers and lead generators should consult with an experienced FTC defense 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.

Informational purposes only. Not legal advice. May be considered attorney advertising.

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Richard B. Newman

Richard B. Newman is a nationally recognized FTC advertising compliance, CID investigation and regulatory enforcemetn attorney. He regularly provides advertising counsel and represents clients in high-profile investigations and enforcement proceedings initiated by the Federal Trade Commission, state attorneys general, departments of consumer affairs, and other federal and state agencies with jurisdiction over advertising and marketing practices. Richard is also an ecommerce lawyer and spam defense attorney. His practice additionally focuses upon false advertising defense, data privacy, cybersquatting, intellectual property law and transactional matters relating to the dissemination of national advertising campaigns, including the gamut of affiliate marketing, telemarketing, lead generation, list management and licensing agreements. Richard advises clients on how to minimize the legal risks associated with digital marketing, email marketing, telemarketing, social media influencer campaigns, endorsements and testimonials, negative option marketing models, native advertising, online promotions and comparative advertising,

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