Advertising Law Blog

Telemarketers who utilize pre-recorded voice messaging are reminded that the FTC's new enforcement policy prohibiting telemarketing sales calls that deliver pre-recorded voice messages unless the seller has previously obtained the recipient's signed written agreement to receive such calls from the specific company becomes effective September 1, 2009. The FTC's policy was announced as part of the FTC's August 2008 final rule amendments to the Telemarketing Sales Rule. The FTC will permit sellers to obtain the required permission for prerecorded messages calls from a consumer in any manner permitted by the E-Sign Act. There are a few exemptions to the prohibition - notably healthcare-related messages and charitable solicitations calls that deliver messages to non-profit members or existing donors.

This is an important development in this confusing area of the law. Marketers should keep in mind here that the FTC's enforcement policy is different from the FCC's policy on this issue which permits such calls where the caller has a pre-existing business relationship with the recipient and otherwise follows certain restrictions. However, if a business is covered by the Telemarketing Sales Rule, it would be governed by the FTC's prohibition. Our prior article on the subject can be found here.

Therefore, telemarketers that are covered by the FTC's Telemarketing Sales Rule must have express prior consent to receive pre-recorded voice calls from the specific company . Otherwise, the FTC will treat such calls as abandoned in excess of a 3% per campaign over a 30-day period.