Revised rule and proposed amendment expand the fight against illegal telemarketing

The FTC just announced final updates to the Telemarketing Sales Rule and there’s an important revision that will help protect small businesses from scammers who make misrepresentations in B2B calls. But that’s not all. The FTC also announced a proposed amendment to the TSR that would extend coverage to inbound telemarketing calls involving technical support services – another category of calls that has inflicted injury on consumers.

First, a refresher on the compliance landscape. In place since 1995, the Telemarketing Sales Rule applies to virtually all telemarketing activities, both in the U.S. as well as international sales calls to consumers here. With a few exceptions, the Rule applies to outbound calls telemarketers make to consumers. The TSR makes it illegal to place most kinds of calls to numbers on the Do Not Call Registry. It also prohibits most uses of prerecorded messages – robocalls – regardless of whether the number is on the Do Not Call Registry. In addition, telemarketers must make required disclosures on sales calls and also are prohibited from making certain misrepresentations.

New final amendments to the TSR
The FTC regularly reviews the rules it enforces to ensure they’re keeping up with developments in technology and changes in the marketplace. The just-announced amendment, which extends to B2B calls the telemarketing protections against misrepresentations, was the result of a process that included a careful look at the current telemarketing landscape and a review of public comments we received.

The original Telemarketing Sales Rule didn’t cover business-to-business calls. The only exceptions were calls pitching office and cleaning supplies – a category of B2B solicitations the FTC considered at the time to be “by far the most significant business-to-business problem area.” Ask small business owners now and they’re likely to tell you that scammers have extended their pernicious reach far beyond toner and tissue, which is why the new Final Rule expands prohibitions against misrepresentations to include B2B telemarketing.

The Final Rule also revises the recordkeeping requirements for telemarketers. And let’s be clear: This is far more than a paperwork issue. The updated recordkeeping requirements are directly related to the tools the FTC needs to address fraudsters’ exploitation of new technologies to deceive and abuse consumers. Here’s how the Rule explains it:

“Technological advancements have made it easier and cheaper for unscrupulous telemarketers to engage in illegal telemarketing, resulting in a greater proliferation of unwanted calls. Bad actors hide their identities by using technology to ‘spoof’ or fake a calling number, making it more difficult  for the Commission to identify the responsible parties or obtain records of their illegal telemarketing activities. Technology also allows these bad actors to operate from anywhere in the world, posing additional challenges to the Commission’s law enforcement efforts.”

To address these issues, the Final Rule requires telemarketers and sellers to retain new categories of information that will make it harder for scammers to injure consumers and disappear into digital oblivion. One important tool in that fight is the new requirement that telemarketers and sellers retain “call detail records” – records that include the date, time, call duration, and disposition of each call, or the phone number that placed and received each call. And, in case there was any doubt, the Final Rule also notes that the recordkeeping requirements extend to records relating to companies that use artificial intelligence to mimic or clone voices used in telemarketing conversations. In fact, all the provisions of the TSR extend to AI-enabled calls. 

The Final Rule will take effect 30 days after it appears in the Federal Register. The provision related to call detail records will take effect 180 days after publication.

Notice of Proposed Rulemaking Regarding Technical Support Services
The FTC also just announced a Notice of Proposed Rulemaking about extending the TSR to cover inbound telemarketing calls from consumers to technical support services. Some tech support scams start with a call to a consumer warning them that their computer has been infected. Other scammers use bogus on-screen pop-up “warnings” that direct consumers to call a number to fix a supposedly dire problem with their computer. Then there are the fraudsters who pay security software companies so that when consumers call to activate their service, they reach a scammer who sells them unnecessary products.

Tech support scams disproportionately harm older consumers, with people in the 60+ age range five times more likely to report a financial loss to this form of fraud when compared to younger consumers. But there’s no doubt that crooks have become so sophisticated in their tactics that consumers of all ages have been injured by a category of scam one industry group has described as a “significant menace for both consumers and businesses.”

You’ll want to read the proposed rulemaking for details, but a primary reason for the proposal is to give the FTC the legal tools it needs to hit tech support scammers in the wallet. The amendment would allow the FTC to ask courts to impose civil penalties and order redress, creating financial disincentives for committing this form of fraud and providing a way to get money back for injured consumers.

We want to hear what you have to say about the FTC’s proposal to take the fight against tech support scams to the next level. Once the Notice of Proposed Rulemaking runs in the Federal Register, you’ll have 60 days to file a public comment.