FTC Begins TSR Rulemaking Process, Targets Repeal of B2B Exception - Klein Moynihan Turco LLP

FTC Begins TSR Rulemaking Process, Targets Repeal of B2B Exception

In a recently released Advanced Notice of Proposed Rulemaking (“Notice”), the Federal Trade Commission (“FTC”) is seeking comment on certain important proposed amendments to the Telemarketing Sales Rule (“TSR”). Among these proposed (but not yet enacted) amendments is the potential repeal or narrowing of the long-standing Business to Business (“B2B”) exception. On a basic level, the B2B exception exempts most business-to-business sales calls from the TSR’s requirements. The FTC’s TSR rulemaking process first provides notice, then seeks comment on proposed amendments, before eventually voting on a final version of the amendments. 

What would change if the TSR Rulemaking amendments eliminate the B2B exception? 

For years, the TSR has applied to business-to-consumer calls and to B2B calls for the sale of office and cleaning supplies. The recent Notice details what the FTC sees as a troubling pattern of abuse – businesses flooded with sales calls for technology products, advertising services, and more. The FTC is now considering three options for reform: 

  • Completely repealing the B2B exception; 
  • Replacing the exception with a much narrower version; or 
  • Adding selected categories of B2B calls that will fall under the restrictions contained in the TSR. 

In the Notice, the FTC cites to what it expects will be a receptive business community that has already voiced significant support for narrowing the scope of the B2B exception (or repealing it altogether). Conversely, the FTC also seeks comment from the telemarketing industry about the burden some of these proposed reforms would have on the sector, notably how to differentiate between residential numbers not on the Do-Not-Call Registry and business telephone numbers (business phone numbers cannot be on the Registry). Finally, the FTC’s Notice asks for comment on how to address the burgeoning gig economy and the growing trend of remote work. As readers know, so many workers use their own cellphones for both business and personal calls – the FTC has yet to determine how to address calls to such parties in the TSR. 

Hire experienced telemarketing attorneys. 

The proposed amendments are just that: proposals. The FTC’s TSR rulemaking process takes time, and no one knows what the final version of the Rule will be or if it will be amended at all. Still, understanding evolving interpretations of the TSR and how that impacts your business is crucial to staying off the FTC’s radar. Hiring experienced telemarketing attorneys can take the guesswork out of compliance. The attorneys at Klein Moynihan Turco have years of experience in all things telemarketing law and can help you stay compliant.

If you need assistance with updating your telemarketing practices and procedures, please email us at info@kleinmoynihan.com or call us at (212) 246-0900

The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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Photo by Laurent Cassagne on Unsplash

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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