As detailed in a prior article, on March 6, 2024 the Federal Trade Commission (FTC) announced changes to the Telemarketing Sales Rule (TSR) that included updates to the TSR’s recordkeeping requirements, which were essentially unchanged since the TSR went into effect almost thirty years ago.
While much attention has been focused on other changes to the TSR, such as its expansion to cover misrepresentations in business-to-business telemarketing calls, the new recordkeeping requirements represent a more onerous compliance obligation for those companies placing outbound sales calls.
The Original TSR Recordkeeping Requirements
Since 1995, the TSR required sellers and telemarketers to maintain the following types of records for a period of two years from the date the record was produced:
- Advertising and promotional materials
- Information about prize recipients
- Sales records
- Employee records, and
- All records of consumers’ express informed consent or agreement to a telemarketing transaction.
The TSR included no express requirements pertaining to the exact nature of express informed consent records that sellers and telemarketers were required to maintain, so most simply retained recordings of customers confirming their agreement to purchase the product or service and to be charged.
The Revised Recordkeeping Requirements
The newly revised TSR extends the record retention period from two years to five years, and further clarifies the types of records demonstrating express informed consent that must be kept, which include the following:
- The name and telephone number of the person providing consent.
- The purpose for which consent was requested and given, and the date of consent.
- A copy of the request for consent maintained in the same format in which the request was presented to the person providing consent.
If consent was collected via a website, the record can be in the form of a screenshot of the website together with metadata that accurately reflects what a consumer submitted when providing consent. If consent was secured verbally, a recording that includes the consent request and the consumer’s affirmative agreement should be retained.
The revised TSR also expands other recordkeeping requirements for outbound telemarketing campaigns, which include:
- A copy of each unique prerecorded message.
- Call data records of telemarketing campaigns.
- Records demonstrating the existence of an established business relationship (EBR), if calls are placed to consumers in reliance upon the EBR exemption to DNC rules.
- Records sufficient to identify all service providers used to deliver outbound calls.
- Records of the version of the DNC Registry used to ensure compliance with the TSR.
The TSR’s new recordkeeping requirements will go into effect 180 days after publication of the revised rules in the Federal Register, but now is the time for all companies covered by the TSR to implement the required changes to their recordkeeping practices.
