Opinion 10-2

UN ITED STATES OF AM ERICA
FEDERAL TRADE COMMISSION
W ASH IN GTO N , D .C. 20580
D ivision of M arketing Practices
February 4, 2010
Joan Mullen
Creative Compliance Consulting
9505 Golf Course Lane
Elk Grove, CA 95758
Request for Advisory Opinion:
Transfer of Consumer-Initiated Call to Prerecorded Message
Dear Ms. Mullen:
You have requested an informal staff opinion on the applicability of the recent
amendments to the Telemarketing Sales Rule (“TSR”) to calls that are transferred to a
prerecorded solicitation. The amendments at issue impose new restrictions on the use of
prerecorded messages in telemarketing. Specifically, these amendments, as of September 1,
2009, generally prohibit initiating an outbound telephone call that delivers a prerecorded
message to induce the purchase of any good or service unless the seller has obtained from the
recipient of the call an express agreement, in writing, that evidences the willingness of the
recipient of the call to receive calls that deliver prerecorded messages by or on behalf of that
seller and includes such person’s telephone number and signature. 16 C.F.R. § 310.4(b)(1)(v)
(2009); 73 Fed. Reg. 15204 (Aug. 29, 2008). Your letter asks whether this amendment prohibits
use of a prerecorded message in the follow scenario:
A consumer calls in to [sic] a call center with a customer service need or to
purchase something. At the conclusion of the primary purpose of the call the
consumer is advised by a live agent to “hold the line[”] while the call is
transferred to a rewards center. The call is then transferred to an automated sales
line and one or more [prerecorded] “pitches” are made. The consumer has no
opportunity to give permission for the prerecorded pitches.
The staff of the Federal Trade Commission has concluded that 16 C.F.R.
§ 310.4(b)(1)(v)(A) does not apply to the delivery of prerecorded messages in the manner
described in your letter. The provisions on prerecorded messages in 16 C.F.R. § 310.4(b)(1)(v)
restrict initiating an “outbound telephone call” and such a call is defined as “a telephone call
initiated by a telemarketer to induce the purchase of goods or services or to solicit a charitable
contribution.” Id. § 310.2(u) (italics added). In the circumstances described in your letter, the
customer initiates the telephone call and the transfer of the call that is initiated by the call center
is a continuation of the same telephone call. Because call was initiated by the consumer, and not
by a seller or telemarketer, 16 C.F.R. § 310.4(b)(1)(v)(A) does not apply to the call.

Joan Mullen
Creative Compliance Consulting
Request for Advisory Opinion
January 29,2010
Page 2
We note that in 2002, the Commission proposed modifying the definition of "outbound
telephone call" in the Telemarketing Sales Rule so that the definition would include situations in
which a telephone call is "transferred to a telemarketer other than the original telemarketer." 67
Fed. Reg. 4491, 4500, 4541 (2002). The Commission decided not to expand the Rule's
definition of "outbound telephone call" by adding this language. 68 Fed. Reg. 4579, 4594-95
(2003). After considering public comments on the proposal, the Commission observed that
expanding the definition in this manner would have unintended and undesirable consequences
because it would make upselling transactions subject to all the provisions of the Telemarketing
Sales Rule relating to outbound calls, including the calling time restrictions and national "do-
not-call" provisions. Id. In the same document, the Commission explained that the definition of
"outbound telephone call" includes situations in which the telemarketer disconnects or
"abandons" a call answered by a person without delivering a sales pitch. "A telemarketer
initiates a telephone call," the Commission observed, "by causing the called consumer's
telephone to ring." 68 Fed. Reg. at 4643. These statements in the Statement of Basis and
Purpose accompanying the Commission's adoption of the current definition of "outbound
telephone call" reinforce our conclusion that the situation described in your letter - 	in which the
telemarketer does not cause the consumer's telephone to ring but transfers a call initiated by the
consumer after the primary purpose of the call has been completed - 	is not an "outbound
telephone call" and, therefore, is not subject to 16 C.F.R. § 31 O.4(b)(1 )(v).
Please be advised that this opinion is based exclusively on the information furnished in
your letter and applies only to the practice described in your letter. Moreover, this opinion only
addresses the issue that you presented, namely the applicability of 16 C.F.R. § 31O.4(b)(1 )(v).
Other provisions ofthe Telemarketing Sales Rule that are not limited to outbound telephone
calls may apply to the situation that you describe. In particular, provisions of the TSR
concerning "upselling" would apply to the telephone call that you describe, even though the call
is not an outbound telephone call. 16 C.F .R. § 31 0.3(d).
In addition, please be advised that the views expressed in this letter are those of the FTC
staff. They have not been reviewed, approved, or adopted by the Commission, and they are not
binding upon the Commission. However, they do reflect the opinions of the staff members
charged with enforcement of the TSR. Staff opinions concerning the TSR are routinely posted
on the FTC website at http://www.ftc.gov/bcp/telemarketing/staffopinions.shtm.
~~lY~
Lois Greisman
Associate Director
Division of Marketing Practices