United States of America v. KFJ Marketing, LLC et al

Filing 57

STIPULATED FINAL ORDER FOR PERMANENT INJUNCTION AND CIVIL PENALTY JUDGMENT by Judge Michael W. Fitzgerald. IT IS ORDERED that Corporate Defendants and Individual Defendant Francisco J. Salvat, whether acting directly or through an intermediary, are p ermanently restrained and enjoined. (SEE ATTACHMENT FOR FURTHER DETAILS). FURTHER ORDERED that: Judgment in the amount of $1,400,000.00 is entered in favor of Plaintiff against Defendants, jointly and severally, as a civil penalty. Defendants ar e ordered to pay to Plaintiff, by making payment to the Treasurer of the United States $155,000, which, as Defendants stipulate, their undersigned counsel holds in escrow for no purpose other than payment to Plaintiff. Such payment must be made within 7 days of entry of this Order by electronic fund transfer in accordance with instructions previously provided by a representative of Plaintiff. (MD JS-6, Case Terminated). (Attachments: # 1 Appendix) (jp)

Federal Trade Commission

§310.2

PART 310-TELEMARKET ING SALES
RULE 16 CFR PART 310

§31
0.1 Scope of regulations in this
part.

Sec.
31
0.1 Scope of regulations in this part.
31
0.2 Definitions.
310.3 Deceptive telemarketing acts or practices.
310.4 Abusive telemarketing acts or practices.
310.5 Recordkeeping requirements.
310.6 Exemptions.
310.7 Actions by states and private persons.
31
0.8 Fee for access to the National Do Not
Call Registry.
31
0.9 Severab111ty.
AUTHORITY: 15 U.S.C. 61 1
01 08.
SOURCE: 75 FR 48516, Aug. 1 2010, unless
0,
otherwise noted.

This part implements the Telemarketing and Consumer Fraud and
Abuse Prevention Act, 1 U.S.C. 61015
6108, as amended.
§310.2 Definitions.
(a) Acquirer means a business organi-

zation, financial institution, or
an
agent of a business organization or financial institution that has authority
from an organization that operates or
licenses a credit card system to authorize merchants to accept, transmit, or
process payment by credit
card
through the credit card system for
money, goods or services, or anything
else of value.

38

§ 310.2

16 CFR Ch. I (1–1–16 Edition)

(b) Attorney General means the chief
legal officer of a state.
(c) Billing information means any data
that enables any person to access a
customer’s or donor’s account, such as
a credit card, checking, savings, share
or similar account, utility bill, mortgage loan account, or debit card.
(d) Caller identification service means a
service that allows a telephone subscriber to have the telephone number,
and, where available, name of the calling party transmitted contemporaneously with the telephone call, and
displayed on a device in or connected
to the subscriber’s telephone.
(e) Cardholder means a person to
whom a credit card is issued or who is
authorized to use a credit card on behalf of or in addition to the person to
whom the credit card is issued.
(f) Charitable contribution means any
donation or gift of money or any other
thing of value.
(g) Commission means the Federal
Trade Commission.
(h) Credit means the right granted by
a creditor to a debtor to defer payment
of debt or to incur debt and defer its
payment.
(i) Credit card means any card, plate,
coupon book, or other credit device existing for the purpose of obtaining
money, property, labor, or services on
credit.
(j) Credit card sales draft means any
record or evidence of a credit card
transaction.
(k) Credit card system means any
method or procedure used to process
credit card transactions involving credit cards issued or licensed by the operator of that system.
(l) Customer means any person who is
or may be required to pay for goods or
services
offered
through
telemarketing.
(m) Debt relief service means any program or service represented, directly or
by implication, to renegotiate, settle,
or in any way alter the terms of payment or other terms of the debt between a person and one or more unsecured creditors or debt collectors, including, but not limited to, a reduction
in the balance, interest rate, or fees
owed by a person to an unsecured creditor or debt collector.

(n) Donor means any person solicited
to make a charitable contribution.
(o) Established business relationship
means a relationship between a seller
and a consumer based on:
(1) the consumer’s purchase, rental,
or lease of the seller’s goods or services
or a financial transaction between the
consumer and seller, within the eighteen (18) months immediately preceding
the date of a telemarketing call; or
(2) the consumer’s inquiry or application regarding a product or service offered by the seller, within the three (3)
months immediately preceding the
date of a telemarketing call.
(p) Free-to-pay conversion means, in
an offer or agreement to sell or provide
any goods or services, a
provision
under which a customer receives a
product or service for free for an initial
period and will incur an obligation to
pay for the product or service if he or
she does not take affirmative action to
cancel before the end of that period.
(q) Investment opportunity means anything, tangible or intangible, that is offered, offered for sale, sold, or traded
based wholly or in part on representations, either express or implied, about
past, present, or future income, profit,
or appreciation.
(r) Material means likely to affect a
person’s choice of, or conduct regarding, goods or services or a charitable
contribution.
(s) Merchant means a person who is
authorized under a written contract
with an acquirer to honor or accept
credit cards, or to transmit or process
for payment credit card payments, for
the purchase of goods or services or a
charitable contribution.
(t) Merchant agreement means a written contract between a merchant and
an acquirer to honor or accept credit
cards, or to transmit or process for
payment credit card payments, for the
purchase of goods or services or a charitable contribution.
(u) Negative option feature means, in
an offer or agreement to sell or provide
any goods or services, a
provision
under which the customer’s silence or
failure to take an affirmative action to
reject goods or services or to cancel the
agreement is interpreted by the seller
as acceptance of the offer.

382

Federal Trade Commission

§ 310.2

(v) Outbound telephone call means a
telephone call initiated by a telemarketer to induce the purchase of
goods or services or to solicit a charitable contribution.
(w) Person means any individual,
group, unincorporated association, limited or general partnership, corporation, or other business entity.
(x) Preacquired account information
means any information that enables a
seller or telemarketer to cause a
charge to be placed against a customer’s or donor’s account without obtaining the account number directly
from the customer or donor during the
telemarketing transaction pursuant to
which the account will be charged.
(y) Prize means anything offered, or
purportedly offered, and given, or purportedly given, to a person by chance.
For purposes of this definition, chance
exists if a person is guaranteed to receive an item and, at the time of the
offer or purported offer, the telemarketer does not identify the specific
item that the person will receive.
(z) Prize promotion means:
(1) A sweepstakes or other game of
chance; or
(2) An oral or written express or implied representation that a person has
won, has been selected to receive, or
may be eligible to receive a prize or
purported prize.
(aa) Seller means any person who, in
connection with a telemarketing transaction, provides, offers to provide, or
arranges for others to provide goods or
services to the customer in exchange
for consideration.
(bb) State means any state of the
United States, the District of Columbia, Puerto Rico, the Northern Mariana
Islands, and any territory or possession
of the United States.
(cc) Telemarketer means any person
who, in connection with telemarketing,
initiates or receives telephone calls to
or from a customer or donor.
(dd) Telemarketing means a plan, program, or campaign which is conducted
to induce the purchase of goods or services or a charitable contribution, by
use of one or more telephones and
which involves more than one interstate telephone call. The term does not
include the solicitation of sales
through the mailing of a catalog

which: contains a written description
or illustration of the goods or services
offered for sale; includes the business
address of the seller; includes multiple
pages of written material or illustrations; and has been issued not less frequently than once a year, when the
person making the solicitation does
not solicit customers by telephone but
only receives calls initiated by customers in response to the catalog and
during those calls takes orders only
without further solicitation. For purposes of the previous sentence, the
term ‘‘further solicitation’’ does not
include providing the customer with
information about, or attempting to
sell, any other item included in the
same catalog which prompted the customer’s call or in a substantially similar catalog.
(ee) Upselling means soliciting the
purchase of goods or services following
an initial transaction during a single
telephone call. The upsell is a separate
telemarketing transaction, not a continuation of the initial transaction. An
‘‘external upsell’’ is a solicitation
made by or on behalf of a seller different from the seller in the initial
transaction, regardless of whether the
initial transaction and the subsequent
solicitation are made by the same telemarketer. An ‘‘internal upsell’’ is a solicitation made by or on behalf of the
same seller as in the initial transaction, regardless of whether the initial transaction and subsequent solicitation are made by the same telemarketer.
EFFECTIVE DATE NOTE: At 80 FR 77558, Dec.
14, 2015, § 310.2 was amended by redesignating
paragraphs (aa) through (ee) as paragraphs
(dd) through (hh), redesignating paragraphs
(f) through (z) as paragraphs (h) through
(bb), and adding new paragraphs (f), (g), and
(cc), effective Feb. 12, 2016. For the convenience of the user, the added text is set forth
as follows:
§ 310.2

*

Definitions.

*

*

*

*

(f) Cash-to-cash money transfer means the
electronic (as defined in section 106(2) of the
Electronic Signatures in Global and National
Commerce Act (15 U.S.C. 7006(2)) transfer of
the value of cash received from one person to
another person in a different location that is

383

§ 310.3

16 CFR Ch. I (1–1–16 Edition)

sent by a money transfer provider and received in the form of cash. For purposes of
this definition, money transfer provider means
any person or financial institution that provides cash-to-cash money transfers for a person in the normal course of its business,
whether or not the person holds an account
with such person or financial institution.
The term cash-to-cash money transfer includes
a remittance transfer, as defined in section
919(g)(2) of the Electronic Fund Transfer Act
(‘‘EFTA’’), 15 U.S.C. 1693a, that is a cash-tocash transaction; however it does not include
any transaction that is:
(1) An electronic fund transfer as defined in
section 903 of the EFTA;
(2) Covered by Regulation E, 12 CFR
1005.20, pertaining to gift cards; or
(3) Subject to the Truth in Lending Act, 15
U.S.C. 1601 et seq.
(g) Cash reload mechanism is a device, authorization code, personal identification
number, or other security measure that
makes it possible for a person to convert
cash into an electronic (as defined in section
106(2) of the Electronic Signatures in Global
and National Commerce Act (15 U.S.C.
7006(2)) form that can be used to add funds to
a general-use prepaid card, as defined in Regulation E, 12 CFR 1005.2, or an account with
a payment intermediary. For purposes of
this definition, a cash reload mechanism is
not itself a general-use prepaid debit card or
a swipe reload process or similar method in
which funds are added directly onto a person’s own general-use prepaid card or account with a payment intermediary.

*

*

*

*

*

(cc) Remotely created payment order means
any payment instruction or order drawn on a
person’s account that is created by the payee
or the payee’s agent and deposited into or
cleared through the check clearing system.
The term includes, without limitation, a
‘‘remotely created check,’’ as defined in Regulation CC, Availability of Funds and Collection of Checks, 12 CFR 229.2(fff), but does not
include a payment order cleared through an
Automated Clearinghouse (ACH) Network or
subject to the Truth in Lending Act, 15
U.S.C. 1601 et seq., and Regulation Z, 12 CFR
part 1026.

*

*

*

*

*

§ 310.3 Deceptive telemarketing acts or
practices.
(a) Prohibited deceptive telemarketing
acts or practices. It is a deceptive telemarketing act or practice and a violation of this Rule for any seller or telemarketer to engage in the following
conduct:

(1) Before a customer consents to
pay 659 for goods or services offered,
failing to disclose truthfully, in a clear
and conspicuous manner, the following
material information:
(i) The total costs to purchase, receive, or use, and the quantity of, any
goods or services that are the subject
of the sales offer; 660
(ii) All material restrictions, limitations, or conditions to purchase, receive, or use the goods or services that
are the subject of the sales offer;
(iii) If the seller has a policy of not
making refunds, cancellations, exchanges, or repurchases, a statement
informing the customer that this is the
seller’s policy; or, if the seller or telemarketer makes a representation
about a refund, cancellation, exchange,
or repurchase policy, a statement of all
material terms and conditions of such
policy;
(iv) In any prize promotion, the odds
of being able to receive the prize, and,
if the odds are not calculable in advance, the factors used in calculating
the odds; that no purchase or payment
is required to win a prize or to participate in a prize promotion and that any
purchase or payment will not increase
the person’s chances of winning; and
the no-purchase/no-payment method of
participating in the prize promotion
with either instructions on how to participate or an address or local or tollfree telephone number to which customers may write or call for information on how to participate;
659 When a seller or telemarketer uses, or
directs a customer to use, a courier to transport payment, the seller or telemarketer
must make the disclosures required by
§ 310.3(a)(1) before sending a courier to pick
up payment or authorization for payment, or
directing a customer to have a courier pick
up payment or authorization for payment. In
the case of debt relief services, the seller or
telemarketer must make the disclosures required by § 310.3(a)(1) before the consumer enrolls in an offered program.
660 For offers of consumer credit products
subject to the Truth in Lending Act, 15
U.S.C. 1601 et seq., and Regulation Z, 12 CFR
226, compliance with the disclosure requirements under the Truth in Lending Act and
Regulation Z shall constitute
compliance
with § 310.3(a)(1)(i) of this Rule.

384

Federal Trade Commission

§ 310.3

(v) All material costs or conditions
to receive or redeem a prize that is the
subject of the prize promotion;
(vi) In the sale of any goods or services represented to protect, insure, or
otherwise limit a customer’s liability
in the event of unauthorized use of the
customer’s credit card, the limits on a
cardholder’s liability for unauthorized
use of a credit card pursuant to 15
U.S.C. 1643;
(vii) If the offer includes a negative
option feature, all material terms and
conditions of the negative option feature, including, but not limited to, the
fact that the customer’s account will
be charged unless the customer takes
an affirmative action to avoid the
charge(s), the date(s) the charge(s) will
be submitted for payment, and the specific steps the customer must take to
avoid the charge(s); and
(viii) In the sale of any debt relief
service:
(A) the amount of time necessary to
achieve the represented results, and to
the extent that the service may include
a settlement offer to any of the customer’s creditors or debt collectors,
the time by which the debt relief service provider will make a bona fide settlement offer to each of them;
(B) to the extent that the service
may include a settlement offer to any
of the customer’s creditors or debt collectors, the amount of money or the
percentage of each outstanding debt
that the customer must accumulate before the debt relief service provider
will make a bona fide settlement offer
to each of them;
(C) to the extent that any aspect of
the debt relief service relies upon or results in the customer’s failure to make
timely payments to creditors or debt
collectors, that the use of the debt relief service will likely adversely affect
the customer’s creditworthiness, may
result in the customer being subject to
collections or sued by creditors or debt
collectors, and may increase the
amount of money the customer owes
due to the accrual of fees and interest;
and
(D) to the extent that the debt relief
service requests or requires the customer to place funds in an account at
an insured financial institution, that
the customer owns the funds held in

the account, the customer may withdraw from the debt relief service at any
time without penalty, and, if the customer withdraws, the customer must
receive all funds in the account, other
than funds earned by the debt relief
service
in
compliance
with
§ 310.4(a)(5)(i)(A) through (C).
(2) Misrepresenting, directly or by
implication, in the sale of goods or
services any of the following material
information:
(i) The total costs to purchase, receive, or use, and the quantity of, any
goods or services that are the subject
of a sales offer;
(ii) Any material restriction, limitation, or condition to purchase, receive,
or use goods or services that are the
subject of a sales offer;
(iii) Any material aspect of the performance, efficacy, nature, or central
characteristics of goods or services
that are the subject of a sales offer;
(iv) Any material aspect of the nature or terms of the seller’s refund,
cancellation, exchange, or repurchase
policies;
(v) Any material aspect of a prize
promotion including, but not limited
to, the odds of being able to receive a
prize, the nature or value of a prize, or
that a purchase or payment is required
to win a prize or to participate in a
prize promotion;
(vi) Any material aspect of an investment opportunity including, but not
limited to, risk, liquidity, earnings potential, or profitability;
(vii) A seller’s or telemarketer’s affiliation with, or endorsement or sponsorship by, any person or government
entity;
(viii) That any customer needs offered goods or services to provide protections a customer already has pursuant to 15 U.S.C. 1643;
(ix) Any material aspect of a negative option feature including, but not
limited to, the fact that the customer’s
account will be charged unless the customer takes an affirmative action to
avoid the charge(s), the date(s) the
charge(s) will be submitted for payment, and the specific steps the customer must take to avoid the
charge(s); or

385

§ 310.3

16 CFR Ch. I (1–1–16 Edition)

(x) Any material aspect of any debt
relief service, including, but not limited to, the amount of money or the
percentage of the debt amount that a
customer may save by using such service; the amount of time necessary to
achieve the represented results; the
amount of money or the percentage of
each outstanding debt that the customer must accumulate before the provider of the debt relief service will initiate attempts with the customer’s
creditors or debt collectors or make a
bona fide offer to negotiate, settle, or
modify the terms of the customer’s
debt; the effect of the service on a customer’s creditworthiness; the effect of
the service on collection efforts of the
customer’s creditors or debt collectors;
the percentage or number of customers
who attain the represented results; and
whether a debt relief service is offered
or provided by a non-profit entity.
(3) Causing billing information to be
submitted for payment, or collecting or
attempting to collect payment for
goods or services or a charitable contribution, directly or indirectly, without the customer’s or donor’s express
verifiable authorization, except when
the method of payment used is a credit
card subject to protections of
the
Truth in Lending Act and Regulation
Z,661 or a debit card subject to the protections of the Electronic Fund Transfer Act and Regulation E.662 Such authorization shall be deemed verifiable
if any of the following means is employed:
(i) Express written authorization by
the customer or donor, which includes
the customer’s or donor’s signature;663
(ii) Express oral authorization which
is audio-recorded and made available
upon request to the customer or donor,
and the customer’s or donor’s bank or
other billing entity, and which evidences clearly both the customer’s or
661 Truth in Lending Act, 15 U.S.C. 1601 et
seq., and Regulation Z, 12 CFR part 226.
662 Electronic Fund Transfer Act, 15 U.S.C.
1693 et seq., and Regulation E, 12 CFR part
205.
663 For purposes of this Rule, the term
‘‘signature’’ shall include an electronic or
digital form of signature, to the extent that
such form of signature is recognized as a
valid signature under applicable federal law
or state contract law.

donor’s authorization of payment for
the goods or services or charitable contribution that are the subject of the
telemarketing transaction and the customer’s or donor’s receipt of all of the
following information:
(A) The number of debits, charges, or
payments (if more than one);
(B)
The
date(s)
the
debit(s),
charge(s), or payment(s) will be submitted for payment;
(C) The amount(s) of the debit(s),
charge(s), or payment(s);
(D) The customer’s or donor’s name;
(E) The customer’s or donor’s billing
information, identified with sufficient
specificity such that the customer or
donor understands what account will
be used to collect payment for the
goods or services or charitable contribution that are the subject of the
telemarketing transaction;
(F) A telephone number for customer
or donor inquiry that is answered during normal business hours; and
(G) The date of the customer’s or donor’s oral authorization; or
(iii) Written confirmation of the
transaction, identified in a clear and
conspicuous manner as such on the
outside of the envelope, sent to the
customer or donor via first class mail
prior to the submission for payment of
the customer’s or donor’s billing information, and that includes all of the information
contained
in
§§ 310.3(a)(3)(ii)(A)-(G) and a clear and
conspicuous statement of the procedures by which the customer or donor
can obtain a refund from the seller or
telemarketer or charitable organization in the event the confirmation is
inaccurate; provided, however, that
this means of authorization shall not
be deemed verifiable in instances in
which goods or services are offered in a
transaction involving a free-to-pay
conversion and preacquired account information.
(4) Making a false or misleading
statement to induce any person to pay
for goods or services or to induce a
charitable contribution.
(b) Assisting and facilitating. It is a deceptive telemarketing act or practice
and a violation of this Rule for a person to provide substantial assistance or
support to any seller or telemarketer
when that person knows or consciously

386

Federal Trade Commission

§ 310.4

avoids knowing that the seller or telemarketer is engaged in any act or practice that violates §§ 310.3(a), (c) or (d),
or § 310.4 of this Rule.
(c) Credit card laundering. Except as
expressly permitted by the applicable
credit card system, it is a deceptive
telemarketing act or practice and a
violation of this Rule for:
(1) A merchant to present to or deposit into, or cause another to present
to or deposit into, the credit card system for payment, a credit card sales
draft generated by a telemarketing
transaction that is not the result of a
telemarketing credit card transaction
between the cardholder and the merchant;
(2) Any person to employ, solicit, or
otherwise cause a merchant, or an employee, representative, or agent of the
merchant, to present to or deposit into
the credit card system for payment, a
credit card sales draft generated by a
telemarketing transaction that is not
the result of a telemarketing credit
card transaction between the cardholder and the merchant; or
(3) Any person to obtain access to the
credit card system through the use of a
business relationship or an affiliation
with a merchant, when such access is
not authorized by the merchant agreement or the applicable credit card system.
(d) Prohibited deceptive acts or practices in the solicitation of charitable contributions. It is a fraudulent charitable
solicitation, a deceptive telemarketing
act or practice, and a violation of this
Rule for any telemarketer soliciting
charitable contributions to misrepresent, directly or by implication, any of
the following material information:
(1) The nature, purpose, or mission of
any entity on behalf of which a charitable contribution is being requested;
(2) That any charitable contribution
is tax deductible in whole or in part;
(3) The purpose for which any charitable contribution will be used;
(4) The percentage or amount of any
charitable contribution that will go to
a charitable organization or to any
particular charitable program;
(5) Any material aspect of a prize
promotion including, but not limited
to: the odds of being able to receive a
prize; the nature or value of a prize; or

that a charitable contribution is required to win a prize or to participate
in a prize promotion; or
(6) A charitable organization’s or
telemarketer’s affiliation with, or endorsement or sponsorship by, any person or government entity.
EFFECTIVE DATE NOTE: At 80 FR 77558, Dec.
14, 2015, § 310.3 was amended by redesignating
paragraphs (a)(3)(ii)(A) through (G) as paragraphs (a)(3)(ii)(B) through (H) and adding
new paragraph (a)(3)(ii)(A), eff. Feb. 12, 2016.
For the convenience of the user, the added
text is set forth as follows:
§ 310.3 Deceptive
practices.

telemarketing

acts

or

(a) * * *
(3) * * *
(ii) * * *
(A) An accurate description, clearly and
conspicuously stated, of the goods or services or charitable contribution for which
payment authorization is sought;

*

*

*

*

*

§ 310.4 Abusive telemarketing acts or
practices.
(a) Abusive conduct generally. It is an
abusive telemarketing act or practice
and a violation of this Rule for any
seller or telemarketer to engage in the
following conduct:
(1) Threats, intimidation, or the use
of profane or obscene language;
(2) Requesting or receiving payment
of any fee or consideration for goods or
services represented to remove derogatory information from, or improve, a
person’s credit history, credit record,
or credit rating until:
(i) The time frame in which the seller
has represented all of the goods or
services will be provided to that person
has expired; and
(ii) The seller has provided the person
with documentation in the form of a
consumer report from a consumer reporting agency demonstrating that the
promised results have been achieved,
such report having been issued more
than six months after the results were
achieved. Nothing in this Rule should
be construed to affect the requirement
in the Fair Credit Reporting Act, 15
U.S.C. 1681, that a consumer report
may only be obtained for a specified
permissible purpose;

387

§ 310.4

16 CFR Ch. I (1–1–16 Edition)

(3) Requesting or receiving payment
of any fee or consideration from a person for goods or services represented to
recover or otherwise assist in the return of money or any other item of
value paid for by, or promised to, that
person in a previous telemarketing
transaction, until seven (7) business
days after such money or other item is
delivered to that person. This provision
shall not apply to goods or services
provided to a person by a licensed attorney;
(4) Requesting or receiving payment
of any fee or consideration in advance
of obtaining a loan or other extension
of credit when the seller or telemarketer has guaranteed or represented a high likelihood of success in
obtaining or arranging a loan or other
extension of credit for a person;
(5)(i) Requesting or receiving payment of any fee or consideration for
any debt relief service until and unless:
(A) The seller or telemarketer has renegotiated, settled, reduced, or otherwise altered the terms of at least one
debt pursuant to a settlement agreement, debt management plan, or other
such valid contractual agreement executed by the customer;
(B) The customer has made at least
one payment pursuant to that settlement agreement, debt management
plan, or other valid contractual agreement between the customer and the
creditor or debt collector; and
(C) To the extent that debts enrolled
in a service are renegotiated, settled,
reduced, or otherwise altered individually, the fee or consideration either:
(1) Bears the same proportional relationship to the total fee for renegotiating, settling, reducing, or altering
the terms of the entire debt balance as
the individual debt amount bears to
the entire debt amount. The individual
debt amount and the entire debt
amount are those owed at the time the
debt was enrolled in the service; or
(2) Is a percentage of the amount
saved as a result of the renegotiation,
settlement, reduction, or alteration.
The percentage charged cannot change
from one individual debt to another.
The amount saved is the difference between the amount owed at the time the
debt was enrolled in the service and the

amount actually paid to satisfy the
debt.
(ii) Nothing in § 310.4(a)(5)(i) prohibits
requesting or requiring the customer
to place funds in an account to be used
for the debt relief provider’s fees and
for payments to creditors or debt collectors in connection with the renegotiation, settlement, reduction, or other
alteration of the terms of payment or
other terms of a debt, provided that:
(A) The funds are held in an account
at an insured financial institution;
(B) The customer owns the funds held
in the account and is paid accrued interest on the account, if any;
(C) The entity administering the account is not owned or controlled by, or
in any way affiliated with, the debt relief service;
(D) The entity administering the account does not give or accept any
money or other compensation in exchange for referrals of business involving the debt relief service; and
(E) The customer may withdraw from
the debt relief service at any time
without penalty, and must receive all
funds in the account, other than funds
earned by the debt relief service in
compliance with § 310.4(a)(5)(i)(A)
through (C), within seven (7) business
days of the customer’s request.
(6) Disclosing or receiving, for consideration, unencrypted consumer account numbers for use in telemarketing; provided, however, that
this paragraph shall not apply to the
disclosure or receipt of a customer’s or
donor’s billing information to process a
payment for goods or services or a
charitable contribution pursuant to a
transaction;
(7) Causing billing information to be
submitted for payment, directly or indirectly, without the express informed
consent of the customer or donor. In
any telemarketing transaction, the
seller or telemarketer must obtain the
express informed consent of the customer or donor to be charged for the
goods or services or charitable contribution and to be charged using the
identified
account.
In
any
telemarketing
transaction
involving
preacquired account information, the
requirements in paragraphs (a)(7)(i)
through (ii) of this section must be met
to evidence express informed consent.

388

Federal Trade Commission

§ 310.4

(i) In any telemarketing transaction
involving preacquired account information and a free-to-pay conversion feature, the seller or telemarketer must:
(A) Obtain from the customer, at a
minimum, the last four (4) digits of the
account number to be charged;
(B) Obtain from the customer his or
her express agreement to be charged
for the goods or services and to be
charged using the account number pursuant to paragraph (a)(7)(i)(A) of this
section; and,
(C) Make and maintain an audio recording of the entire telemarketing
transaction.
(ii) In any other telemarketing transaction involving preacquired account
information not described in paragraph
(a)(7)(i) of this section, the seller or
telemarketer must:
(A) At a minimum, identify the account to be charged with sufficient
specificity for the customer or donor to
understand what account will be
charged; and
(B) Obtain from the customer or
donor his or her express agreement to
be charged for the goods or services
and to be charged using the account
number identified pursuant to paragraph (a)(7)(ii)(A) of this section; or
(8) Failing to transmit or cause to be
transmitted the telephone number,
and, when made available by the telemarketer’s carrier, the name of the
telemarketer, to any caller identification service in use by a recipient of a
telemarketing call; provided that it
shall not be a violation to substitute
(for the name and phone number used
in, or billed for, making the call) the
name of the seller or charitable organization on behalf of which a telemarketing call is placed, and the seller’s or charitable organization’s customer or donor service telephone number, which is answered during regular
business hours.
(b) Pattern of calls. (1) It is an abusive
telemarketing act or practice and a
violation of this Rule for a telemarketer to engage in, or for a seller
to cause a telemarketer to engage in,
the following conduct:
(i) Causing any telephone to ring, or
engaging any person in telephone conversation, repeatedly or continuously

with intent to annoy, abuse, or harass
any person at the called number;
(ii) Denying or interfering in any
way, directly or indirectly, with a person’s right to be placed on any registry
of names and/or telephone numbers of
persons who do not wish to receive outbound telephone calls established to
comply with § 310.4(b)(1)(iii);
(iii) Initiating any outbound telephone call to a person when:
(A) That person previously has stated
that he or she does not wish to receive
an outbound telephone call made by or
on behalf of the seller whose goods or
services are being offered or made on
behalf of the charitable organization
for which a charitable contribution is
being solicited; or
(B) That person’s telephone number
is on the ‘‘do-not-call’’ registry, maintained by the Commission, of persons
who do not wish to receive outbound
telephone calls to induce the purchase
of goods or services unless the seller:
(i) Has obtained the express agreement, in writing, of such person to
place calls to that person. Such written
agreement shall clearly evidence such
person’s authorization that calls made
by or on behalf of a specific party may
be placed to that person, and shall include the telephone number to which
the calls may be placed and the signature664 of that person; or
(ii) Has an established business relationship with such person, and that
person has not stated that he or she
does not wish to receive outbound telephone
calls
under
paragraph
(b)(1)(iii)(A) of this section; or
(iv) Abandoning any outbound telephone call. An outbound telephone call
is ‘‘abandoned’’ under this section if a
person answers it and the telemarketer
does not connect the call to a sales representative within two (2) seconds of
the person’s completed greeting.
(v) Initiating any outbound telephone
call that delivers a prerecorded message, other than a prerecorded message
permitted for compliance with the call
664 For purposes of this Rule, the term
‘‘signature’’ shall include an electronic or
digital form of signature, to the extent that
such form of signature is recognized as a
valid signature under applicable federal law
or state contract law.

389

§ 310.4

16 CFR Ch. I (1–1–16 Edition)

abandonment
safe
harbor
in
§ 310.4(b)(4)(iii), unless:
(A) In any such call to induce the
purchase of any good or service, the
seller has obtained from the recipient
of the call an express agreement, in
writing, that:
(i) The seller obtained only after a
clear and conspicuous disclosure that
the purpose of the agreement is to authorize the seller to place prerecorded
calls to such person;
(ii) The seller obtained without requiring, directly or indirectly, that the
agreement be executed as a condition
of purchasing any good or service;
(iii) Evidences the willingness of the
recipient of the call to receive calls
that deliver prerecorded messages by
or on behalf of a specific seller; and
(iv) Includes such person’s telephone
number and signature;665 and
(B) In any such call to induce the
purchase of any good or service, or to
induce a charitable contribution from a
member of, or previous donor to, a nonprofit charitable organization on whose
behalf the call is made, the seller or
telemarketer:
(i) Allows the telephone to ring for at
least fifteen (15) seconds or four (4)
rings before disconnecting an unanswered call; and
(ii) Within two (2) seconds after the
completed greeting of the person
called, plays a prerecorded message
that promptly provides the disclosures
required by § 310.4(d) or (e), followed
immediately by a disclosure of one or
both of the following:
(A) In the case of a call that could be
answered in person by a consumer, that
the person called can use an automated
interactive voice and/or keypress-activated opt-out mechanism to assert a
Do Not Call request pursuant to
§ 310.4(b)(1)(iii)(A) at any time during
the message. The mechanism must:
(1) Automatically add the number
called to the seller’s entity-specific Do
Not Call list;
(2) Once invoked, immediately disconnect the call; and
665 For purposes of this Rule, the term
‘‘signature’’ shall include an electronic or
digital form of signature, to the extent that
such form of signature is recognized as a
valid signature under applicable federal law
or state contract law.

(3) Be available for use at any time
during the message; and
(B) In the case of a call that could be
answered by an answering machine or
voicemail service, that the person
called can use a toll-free telephone
number to assert a Do Not Call request
pursuant to § 310.4(b)(1)(iii)(A). The
number provided must connect directly
to an automated interactive voice or
keypress-activated opt-out mechanism
that:
(1) Automatically adds the number
called to the seller’s entity-specific Do
Not Call list;
(2)
Immediately
thereafter
disconnects the call; and
(3) Is accessible at any time throughout the duration of the telemarketing
campaign; and
(iii) Complies with all other requirements of this part and other applicable
federal and state laws.
(C) Any call that complies with all
applicable requirements of this paragraph (v) shall not be deemed to violate
§ 310.4(b)(1)(iv) of this part.
(D) This paragraph (v) shall not apply
to any outbound telephone call that delivers a prerecorded healthcare message made by, or on behalf of, a covered
entity or its business associate, as
those terms are defined in the HIPAA
Privacy Rule, 45 CFR 160.103.
(2) It is an abusive telemarketing act
or practice and a violation of this Rule
for any person to sell, rent, lease, purchase, or use any list established to
comply with § 310.4(b)(1)(iii)(A), or
maintained by the Commission pursuant to § 310.4(b)(1)(iii)(B), for any purpose except compliance with the provisions of this Rule or otherwise to prevent telephone calls to telephone numbers on such lists.
(3) A seller or telemarketer will not
be liable for violating § 310.4(b)(1)(ii)
and (iii) if it can demonstrate that, as
part of the seller’s or telemarketer’s
routine business practice:
(i) It has established and implemented written procedures to comply
with § 310.4(b)(1)(ii) and (iii);
(ii) It has trained its personnel, and
any entity assisting in its compliance,
in the procedures established pursuant
to § 310.4(b)(3)(i);
(iii) The seller, or a telemarketer or
another person acting on behalf of the

390

Federal Trade Commission

§ 310.4

seller or charitable organization, has
maintained and recorded a list of telephone numbers the seller or charitable
organization may not contact, in compliance with § 310.4(b)(1)(iii)(A);
(iv) The seller or a telemarketer uses
a process to prevent telemarketing to
any telephone number on any list established pursuant to § 310.4(b)(3)(iii) or
310.4(b)(1)(iii)(B), employing a version
of the ‘‘do-not-call’’ registry obtained
from the Commission no more than
thirty-one (31) days prior to the date
any call is made, and maintains
records documenting this process;
(v) The seller or a telemarketer or
another person acting on behalf of the
seller or charitable organization, monitors and enforces compliance with the
procedures established pursuant to
§ 310.4(b)(3)(i); and
(vi) Any subsequent call otherwise
violating § 310.4(b)(1)(ii) or (iii) is the
result of error.
(4) A seller or telemarketer will not
be liable for violating § 310.4(b)(1)(iv) if:
(i) The seller or telemarketer employs technology that ensures abandonment of no more than three (3) percent of all calls answered by a person,
measured over the duration of a single
calling campaign, if less than 30 days,
or separately over each successive 30day period or portion thereof that the
campaign continues.
(ii) The seller or telemarketer, for
each telemarketing call placed, allows
the telephone to ring for at least fifteen (15) seconds or four (4) rings before
disconnecting an unanswered call;
(iii) Whenever a sales representative
is not available to speak with the person answering the call within two (2)
seconds after the person’s completed
greeting, the seller or telemarketer
promptly plays a recorded message
that states the name and telephone
number of the seller on whose behalf
the call was placed666; and
(iv) The seller or telemarketer, in accordance with § 310.5(b)-(d), retains
records establishing compliance with
§ 310.4(b)(4)(i)-(iii).
666 This provision does not affect any seller’s or telemarketer’s obligation to comply
with relevant state and federal laws, including but not limited to the TCPA, 47 U.S.C.
227, and 47 CFR part 64.1200.

(c) Calling time restrictions. Without
the prior consent of a person, it is an
abusive telemarketing act or practice
and a violation of this Rule for a telemarketer to engage in outbound telephone calls to a person’s residence at
any time other than between 8:00 a.m.
and 9:00 p.m. local time at the called
person’s location.
(d) Required oral disclosures in the sale
of goods or services. It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer in
an outbound telephone call or internal
or external upsell to induce the purchase of goods or services to fail to disclose truthfully, promptly, and in a
clear and conspicuous manner to the
person receiving the call, the following
information:
(1) The identity of the seller;
(2) That the purpose of the call is to
sell goods or services;
(3) The nature of the goods or services; and
(4) That no purchase or payment is
necessary to be able to win a prize or
participate in a prize promotion if a
prize promotion is offered and that any
purchase or payment will not increase
the person’s chances of winning. This
disclosure must be made before or in
conjunction with the description of the
prize to the person called. If requested
by that person, the telemarketer must
disclose the no-purchase/no-payment
entry method for the prize promotion;
provided, however, that, in any internal upsell for the sale of goods or services, the seller or telemarketer must
provide the disclosures listed in this
section only to the extent that the information in the upsell differs from the
disclosures provided in the initial telemarketing transaction.
(e) Required oral disclosures in charitable solicitations. It is an abusive telemarketing act or practice and a violation of this Rule for a telemarketer, in
an outbound telephone call to induce a
charitable contribution, to fail to disclose truthfully, promptly, and in a
clear and conspicuous manner to the
person receiving the call, the following
information:
(1) The identity of the charitable organization on behalf of which the request is being made; and

391

§ 310.5

16 CFR Ch. I (1–1–16 Edition)

(2) That the purpose of the call is to
solicit a charitable contribution.
[75 FR 48516, Aug. 10, 2010, as amended at 76
FR 58716, Sept. 22, 2011]
EFFECTIVE DATE NOTE: At 80 FR 77558, Dec.
14, 2015, § 310.4 was amended by revising paragraphs (a)(3), (b)(1)(ii), (iii)(B), and (3)(vi), effective February 12, 2016, and in paragraph
(a)(7)(ii)(B) by removing ‘‘or’’ from the end of
the paragraph, in paragraph (a)(8) by removing the final period and adding a semicolon
in its place, and by adding paragraphs (a)(9)
and (10), effective June 13, 2016. For the convenience of the user, the added and revised
text is set forth as follows:
§ 310.4 Abusive telemarketing acts or practices.
(a) * * *
(3) Requesting or receiving payment of any
fee or consideration from a person for goods
or services represented to recover or otherwise assist in the return of money or any
other item of value paid for by, or promised
to, that person in a previous transaction,
until seven (7) business days after such
money or other item is delivered to that person. This provision shall not apply to goods
or services provided to a person by a licensed
attorney;

*

*

*

*

*

(9) Creating or causing to be created, directly or indirectly, a remotely created payment order as payment for goods or services
offered or sold through telemarketing or as a
charitable contribution solicited or sought
through telemarketing; or
(10) Accepting from a customer or donor,
directly or indirectly, a cash-to-cash money
transfer or cash reload mechanism as payment for goods or services offered or sold
through telemarketing or as a charitable
contribution solicited or sought through
telemarketing.
(b) * * *
(1) * * *
(ii) Denying or interfering in any way, directly or indirectly, with a person’s right to
be placed on any registry of names and/or
telephone numbers of persons who do not
wish to receive outbound telephone calls established
to
comply
with
paragraph
(b)(1)(iii)(A) of this section, including, but
not limited to, harassing any person who
makes such a request; hanging up on that
person; failing to honor the request; requiring the person to listen to a sales pitch before accepting the request; assessing a
charge or fee for honoring the request; requiring a person to call a different number to
submit the request; and requiring the person
to identify the seller making the call or on
whose behalf the call is made;
(iii) * * *

(B) That person’s telephone number is on
the ‘‘do-not-call’’ registry, maintained by
the Commission, of persons who do not wish
to receive outbound telephone calls to induce the purchase of goods or services unless
the seller or telemarketer:
(1) Can demonstrate that the seller has obtained the express agreement, in writing, of
such person to place calls to that person.
Such written agreement shall clearly evidence such person’s authorization that calls
made by or on behalf of a specific party may
be placed to that person, and shall include
the telephone number to which the calls may
be placed and the signature 664 of that person;
or
(2) Can demonstrate that the seller has an
established business relationship with such
person, and that person has not stated that
he or she does not wish to receive outbound
telephone calls under paragraph (b)(1)(iii)(A)
of this section; or

*

*

*

*

*

(3) * * *
(vi) Any subsequent call otherwise violating paragraph (b)(1)(ii) or (iii) of this section is the result of error and not of failure
to obtain any information necessary to comply with a request pursuant to paragraph
(b)(1)(iii)(A) of this section not to receive
further calls by or on behalf of a seller or
charitable organization.

*

*

*

*

*

§ 310.5 Recordkeeping requirements.
(a) Any seller or telemarketer shall
keep, for a period of 24 months from
the date the record is produced, the following records relating to its telemarketing activities:
(1) All substantially different advertising,
brochures,
telemarketing
scripts, and promotional materials;
(2) The name and last known address
of each prize recipient and the prize
awarded for prizes that are represented, directly or by implication, to
have a value of $25.00 or more;
(3) The name and last known address
of each customer, the goods or services
purchased, the date such goods or services were shipped or provided, and the
664 For purposes of this Rule, the term
‘‘signature’’ shall include an electronic or
digital form of signature, to the extent that
such form of signature is recognized as a
valid signature under applicable federal law
or state contract law.

392

Federal Trade Commission

§ 310.6

amount paid by the customer for the
goods or services;667
(4) The name, any fictitious name
used, the last known home address and
telephone number, and the job title(s)
for all current and former employees
directly involved in telephone sales or
solicitations; provided, however, that if
the seller or telemarketer permits fictitious names to be used by employees,
each fictitious name must be traceable
to only one specific employee; and
(5) All verifiable authorizations or
records of express informed consent or
express agreement required to be provided or received under this Rule.
(b) A seller or telemarketer may
keep the records required by § 310.5(a)
in any form, and in the same manner,
format, or place as they keep such
records in the ordinary course of business. Failure to keep all records required by § 310.5(a) shall be a violation
of this Rule.
(c) The seller and the telemarketer
calling on behalf of the seller may, by
written agreement, allocate responsibility between themselves for the recordkeeping required by this Section.
When a seller and telemarketer have
entered into such an agreement, the
terms of that agreement shall govern,
and the seller or telemarketer, as the
case may be, need not keep records
that duplicate those of the other. If the
agreement is unclear as to who must
maintain any required record(s), or if
no such agreement exists, the seller
shall be responsible for complying with
§§ 310.5(a)(1)-(3) and (5); the telemarketer shall be responsible for complying with § 310.5(a)(4).
(d) In the event of any dissolution or
termination of the seller’s or telemarketer’s business, the principal of
that seller or telemarketer shall maintain all records as required under this
section. In the event of any sale, assignment, or other change in ownership
of the seller’s or telemarketer’s business, the successor business shall main667 For offers of consumer credit products
subject to the Truth in Lending Act, 15
U.S.C. 1601 et seq., and Regulation Z, 12 CFR
226, compliance with the recordkeeping requirements under the Truth in Lending Act,
and Regulation Z, shall constitute compliance with § 310.5(a)(3) of this Rule.

tain all records required under this section.
§ 310.6 Exemptions.
(a) Solicitations to induce charitable
contributions via outbound telephone
calls
are
not
covered
by
§ 310.4(b)(1)(iii)(B) of this Rule.
(b) The following acts or practices
are exempt from this Rule:
(1) The sale of pay-per-call services
subject to the Commission’s Rule entitled ‘‘Trade Regulation Rule Pursuant
to the Telephone Disclosure and Dispute Resolution Act of 1992,’’ 16 CFR
part 308, provided, however, that this
exemption does not apply to the requirements of §§ 310.4(a)(1), (a)(7), (b),
and (c);
(2) The sale of franchises subject to
the Commission’s Rule entitled ‘‘Disclosure Requirements and Prohibitions
Concerning Franchising,’’ (‘‘Franchise
Rule’’) 16 CFR part 436, and the sale of
business opportunities subject to the
Commission’s Rule entitled ‘‘Disclosure Requirements and Prohibitions
Concerning Business Opportunities,’’
(‘‘Business Opportunity Rule’’) 16 CFR
part 437, provided, however, that this
exemption does not apply to the requirements of §§ 310.4(a)(1), (a)(7), (b),
and (c);
(3) Telephone calls in which the sale
of goods or services or charitable solicitation is not completed, and payment
or authorization of payment is not required, until after a face-to-face sales
or donation presentation by the seller
or charitable organization, provided,
however, that this exemption does not
apply
to
the
requirements
of
§§ 310.4(a)(1), (a)(7), (b), and (c);
(4) Telephone calls initiated by a customer or donor that are not the result
of any solicitation by a seller, charitable organization, or telemarketer,
provided, however, that this exemption
does not apply to any instances of
upselling included in such telephone
calls;
(5) Telephone calls initiated by a customer or donor in response to an advertisement through any medium, other
than direct mail solicitation, provided,
however, that this exemption does not
apply to calls initiated by a customer

393

§ 310.7

16 CFR Ch. I (1–1–16 Edition)

or donor in response to an advertisement relating to investment opportunities, debt relief services, business opportunities other than business arrangements covered by the Franchise
Rule or Business Opportunity Rule, or
advertisements involving goods or
services described in §§ 310.3(a)(1)(vi) or
310.4(a)(2)-(4); or to any instances of
upselling included in such telephone
calls;
(6) Telephone calls initiated by a customer or donor in response to a direct
mail solicitation, including solicitations via the U.S. Postal Service, facsimile transmission, electronic mail,
and other similar methods of delivery
in which a solicitation is directed to
specific address(es) or person(s), that
clearly, conspicuously, and truthfully
discloses all material information listed in § 310.3(a)(1) of this Rule, for any
goods or services offered in the direct
mail solicitation, and that contains no
material misrepresentation regarding
any item contained in § 310.3(d) of this
Rule for any requested charitable contribution; provided, however, that this
exemption does not apply to calls initiated by a customer in response to a direct mail solicitation relating to prize
promotions, investment opportunities,
debt relief services, business opportunities other than business arrangements
covered by the Franchise Rule or Business Opportunity Rule, or goods or
services described in §§ 310.3(a)(1)(vi) or
310.4(a)(2)-(4); or to any instances of
upselling included in such telephone
calls; and
(7) Telephone calls between a telemarketer and any business, except
calls to induce the retail sale of nondurable office or cleaning supplies; provided, however, that § 310.4(b)(1)(iii)(B)
and § 310.5 of this Rule shall not apply
to sellers or telemarketers of nondurable office or cleaning supplies.
EFFECTIVE DATE NOTE: At 80 FR 77559, Dec.
14, 2015, § 310.6 was amended by revising paragraphs (b)(5), (6) and (7), effective Feb. 12,
2016, and by adding paragraphs (b)(5)(ii) and
(6)(ii), effective June 13, 2016. For the convenience of the user, the added and revised text
is set forth as follows:
§ 310.6

*

Exemptions.

*

*

*

*

(b) * * *
(5) Telephone calls initiated by a customer
or donor in response to an advertisement
through any medium, other than direct mail
solicitation, provided, however, that this exemption does not apply to:
(i) Calls initiated by a customer or donor
in response to an advertisement relating to
investment opportunities, debt relief services, business opportunities other than business arrangements covered by the Franchise
Rule or Business Opportunity Rule, or advertisements involving offers for goods or services described in § 310.3(a)(1)(vi) or § 310.4(a)(2)
through (4);
(ii) The requirements of § 310.4(a)(9) or (10);
or
(iii) Any instances of upselling included in
such telephone calls;
(6) Telephone calls initiated by a customer
or donor in response to a direct mail solicitation, including solicitations via the U.S.
Postal Service, facsimile transmission, electronic mail, and other similar methods of delivery in which a solicitation is directed to
specific address(es) or person(s), that clearly,
conspicuously, and truthfully discloses all
material information listed in § 310.3(a)(1),
for any goods or services offered in the direct
mail solicitation, and that contains no material misrepresentation regarding any item
contained in § 310.3(d) for any requested charitable contribution; provided, however, that
this exemption does not apply to:
(i) Calls initiated by a customer in response to a direct mail solicitation relating
to prize promotions, investment opportunities, debt relief services, business opportunities other than business arrangements covered by the Franchise Rule or Business Opportunity Rule, or goods or services described in § 310.3(a)(1)(vi) or § 310.4(a)(2)
through (4);
(ii) The requirements of § 310.4(a)(9) or (10);
or
(iii) Any instances of upselling included in
such telephone calls; and
(7) Telephone calls between a telemarketer
and any business to induce the purchase of
goods or services or a charitable contribution by the business, except calls to induce
the retail sale of nondurable office or cleaning supplies; provided, however, that
§§ 310.4(b)(1)(iii)(B) and 310.5 shall not apply
to sellers or telemarketers of nondurable office or cleaning supplies.

§ 310.7 Actions by states and private
persons.
(a) Any attorney general or other officer of a state authorized by the state
to bring an action under the Telemarketing and Consumer Fraud and
Abuse Prevention Act, and any private
person who brings an action under that
Act, shall serve written notice of its

394

Federal Trade Commission

§ 310.8

action on the Commission, if feasible,
prior to its initiating an action under
this Rule. The notice shall be sent to
the Office of the Director, Bureau of
Consumer Protection, Federal Trade
Commission, Washington, DC 20580, and
shall include a copy of the state’s or
private person’s complaint and any
other pleadings to be filed with the
court. If prior notice is not feasible,
the state or private person shall serve
the Commission with the required notice immediately upon instituting its
action.
(b) Nothing contained in this Section
shall prohibit any attorney general or
other authorized state official from
proceeding in state court on the basis
of an alleged violation of any civil or
criminal statute of such state.
§ 310.8 Fee for access to the National
Do Not Call Registry.
(a) It is a violation of this Rule for
any seller to initiate, or cause any
telemarketer to initiate, an outbound
telephone call to any person whose
telephone number is within a given
area code unless such seller, either directly or through another person, first
has paid the annual fee, required by
§ 310.8(c), for access to telephone numbers within that area code that are included in the National Do Not Call
Registry maintained by the Commission under § 310.4(b)(1)(iii)(B); provided,
however, that such payment is not necessary if the seller initiates, or causes
a telemarketer to initiate, calls solely
to
persons
pursuant
to
§§ 310.4(b)(1)(iii)(B)(i) or (ii), and the
seller does not access the National Do
Not Call Registry for any other purpose.
(b) It is a violation of this Rule for
any telemarketer, on behalf of any seller, to initiate an outbound telephone
call to any person whose telephone
number is within a given area code unless that seller, either directly or
through another person, first has paid
the annual fee, required by § 310.8(c),
for access to the telephone numbers
within that area code that are included
in the National Do Not Call Registry;
provided, however, that such payment
is not necessary if the seller initiates,
or causes a telemarketer to initiate,
calls solely to persons pursuant to

§§ 310.4(b)(1)(iii)(B)(i) or (ii), and the
seller does not access the National Do
Not Call Registry for any other purpose.
(c) The annual fee, which must be
paid by any person prior to obtaining
access to the National Do Not Call
Registry, is $60 for each area code of
data accessed, up to a maximum of
$16,482; provided, however, that there
shall be no charge to any person for accessing the first five area codes of data,
and provided further, that there shall be
no charge to any person engaging in or
causing others to engage in outbound
telephone calls to consumers and who
is accessing area codes of data in the
National Do Not Call Registry if the
person is permitted to access, but is
not required to access, the National Do
Not Call Registry under this Rule, 47
CFR 64.1200, or any other Federal regulation or law. Any person accessing the
National Do Not Call Registry may not
participate in any arrangement to
share the cost of accessing the registry, including any arrangement with
any telemarketer or service provider to
divide the costs to access the registry
among various clients of that telemarketer or service provider.
(d) Each person who pays, either directly or through another person, the
annual fee set forth in § 310.8(c), each
person excepted under § 310.8(c) from
paying the annual fee, and each person
excepted from paying an annual fee
under § 310.4(b)(1)(iii)(B), will be provided a unique account number that
will allow that person to access the
registry data for the selected area
codes at any time for the twelve month
period beginning on the first day of the
month in which the person paid the fee
(‘‘the annual period’’). To obtain access
to additional area codes of data during
the first six months of the annual period, each person required to pay the
fee under § 310.8(c) must first pay $60
for each additional area code of data
not initially selected. To obtain access
to additional area codes of data during
the second six months of the annual period, each person required to pay the
fee under § 310.8(c) must first pay $30
for each additional area code of data
not initially selected. The payment of
the additional fee will permit the person to access the additional area codes

395

§ 310.9

16 CFR Ch. I (1–1–16 Edition)

of data for the remainder of the annual
period.
(e) Access to the National Do Not
Call Registry is limited to telemarketers, sellers, others engaged in or
causing others to engage in telephone
calls to consumers, service providers
acting on behalf of such persons, and
any government agency that has law
enforcement authority. Prior to accessing the National Do Not Call Registry,
a person must provide the identifying
information required by the operator of
the registry to collect the fee, and
must certify, under penalty of law,
that the person is accessing the registry solely to comply with the provisions of this Rule or to otherwise prevent telephone calls to telephone numbers on the registry. If the person is accessing the registry on behalf of sellers, that person also must identify
each of the sellers on whose behalf it is
accessing the registry, must provide
each seller’s unique account number
for access to the national registry, and
must certify, under penalty of law,
that the sellers will be using the information gathered from the registry
solely to comply with the provisions of
this Rule or otherwise to prevent telephone calls to telephone numbers on
the registry.

Registry under this Rule, 47 CFR 64.1200, or
any other Federal regulation or law. No person may participate in any arrangement to
share the cost of accessing the National Do
Not Call Registry, including any arrangement with any telemarketer or service provider to divide the costs to access the registry among various clients of that telemarketer or service provider.

*

EFFECTIVE DATE NOTE: At 80 FR 77560, Dec.
14, 2015, § 310.8 was amended by revising paragraph (c), effective Feb. 16, 2016. For the convenience of the user, the revised text is set
forth as follows:
§ 310.8 Fee for access to the National Do Not
Call Registry.

*

*

*

*

(c) The annual fee, which must be paid by
any person prior to obtaining access to the
National Do Not Call Registry, is $60 for each
area code of data accessed, up to a maximum
of $16,482; provided, however, that there shall
be no charge to any person for accessing the
first five area codes of data, and provided
further, that there shall be no charge to any
person engaging in or causing others to engage in outbound telephone calls to consumers and who is accessing area codes of
data in the National Do Not Call Registry if
the person is permitted to access, but is not
required to access, the National Do Not Call

*

*

*

§ 310.9 Severability.
The provisions of this Rule are separate and severable from one another. If
any provision is stayed or determined
to be invalid, it is the Commission’s intention that the remaining provisions
shall continue in effect.

[75 FR 48516, Aug. 10, 2010; 75 FR 51934, Aug.
24, 2010, as amended at 77 FR 51697, Aug. 27,
2012; 78 FR 53643, Aug. 30, 2013; 79 FR 51478,
Aug. 29, 2014]

*

*

396