CZAR POWER: So the FTC’s Open Meeting Tomorrow.. and Guess Who Has Been Invited to Speak?? :)

So, as everyone knows, I really like the FTC and hold those guys in extremely high regard. They have a tough mission and they work hard to fulfill it for all Americans. Have to respect it.

That being said, I am more than a little uneasy with the recent shiftiness around the Commission’s TSR interpretations in connection with prerecorded calls.

Specifically, on July 27, 2023 the FTC issued a vague LinkedIn post reading:

A business can’t send you #robocalls if they got your contact information from someone else. Third party lead generation is illegal under the Telemarketing Sales Rules.

So, couple of problems here.

First, what?

Second, since when?

But in seriousness, the FTC has never before taken the position that consent to send a “robocall”–whatever that means–cannot be transferred. Indeed, FTC representatives were telling industry participants at conference just a few months ago that consent can be transferred–but it has to be one to one. But even that guidance has never existed anywhere in writing. Just lore of secondhand reports of what took place on various stages at conferences.

And what is a robocall anyway?

The TSR does not include the word “robocall”–search for yourself –and the word is not defined anywhere else in federal law.

So, what exactly did the FTC mean when it posted its LinkedIn post?

Well, I am going to ask them tomorrow and find out.

Brace yourselves…

A bit more background here, the TSR requires prerecorded marketing calls–which I assume but do not know to be what the FTC is referring to as a “robocall”– to be made only with the express written consent of a consumer. Per 310.4(b)(1)(v)(A) of the TSR consent means 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.

So when we look at these words a couple of tings jump out. First, plainly a consumer can agree to receive calls “on behalf of a specific seller” and not just from the seller directly. That is literally what section (iv) says.

But more germanely, the phrase “seller obtained” throughout the provision is missing one little word–“directly.” That is the TSR does not seem to require the seller to have DIRECTLY obtained consent from a consumer– the mere fact that the consent was “obtained” (however it was obtained) is sufficient to meet the letter of the law.

Or so it seems.

Ultimately I am not trying to change the FTC’s mind here. I am just trying to get a clear statement as to what folks are supposed to be doing right now to comply with the law.

Let’s see what happens.

Meeting starts at 11 am eastern tomorrow. Link here:

https://www.ftc.gov/news-events/events/2023/09/open-commission-meeting-september-14-2023

Obviously with the Czar in attendance the FTC can expect big ratings. But hopefully we will get a nice clean straight answer that everyone can work with.

(Fair disclosure I have a couple of critical calls starting at 8:30 pacific so if the Commission doesn’t hear from me in the first 30 minutes or so Queenie is going to have to jump in here–either way, will be awesome!!)

Btw–thanks to the Duchess for setting this up.

Enjoy!!! 🙂