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Federal Deception Law: 5.6.2 State Enforcement

State attorneys general and other state consumer protection authorities are authorized under the Telemarketing and Consumer Fraud and Abuse Prevention Act to file suit in federal court when there is a pattern or practice of TSR violations.243 The statute authorizes them to seek an injunction to stop the telemarketing practice and to recover damages, restitution, or other compensation on behalf of the state’s citizens.244 The state must notify the FTC of the actio

Federal Deception Law: 5.6.3 Federal Enforcement

The FTC and CFPB both have authority to enforce the TSR,250 with the same enforcement powers that those agencies possess to enforce other rules.251 For example, the FTC can seek a permanent injunction in federal court against a telemarketing practice,252 even if the practice has already ceased.253

Federal Deception Law: 5.7.2 The Seller

Most provisions in the TSR apply not just to telemarketers but also to sellers. If a seller conducts its own telephone solicitations—or if its hired telemarketers are found to be its agents266—it must comply with the TSR as to its phone solicitations. The TSR also applies in some contexts when the consumer initiates the call and contacts the seller.267 The seller must then comply with all requirements as to disclosures and prohibited misrepresentations and forms of payment.

Federal Deception Law: 5.7.3 Those Facilitating Credit Card Laundering

Legitimate merchants who want to be able to accept credit card payments from customers establish a merchant account with a financial institution that is a member of a credit card system such as VISA or Mastercard.271 This financial institution is called the “merchant bank.” When a customer pays the merchant by credit card, the merchant gives the charge slips to the merchant bank.

Federal Deception Law: 5.7.4 Persons Who Provide Substantial Assistance

Sellers using fraudulent telemarketers are often fly-by-night outfits that cannot be located or lack assets from which reimbursement to injured consumers can be exacted. Other times they may even be located out of the country. The ability to find third parties liable for TSR violations is often key if any amount is to be recovered.

Federal Deception Law: 7.5.4.6 Records That the FTC’s Telemarketing Sales Rule Requires Sellers and Telemarketers to Maintain

The FTC’s Telemarketing Sales Rule (TSR) imposes significant recordkeeping requirements on sellers and telemarketers that fall within the FTC’s jurisdiction.669 The TSR provides a roadmap for records that, in any TCPA case involving telemarketing calls, the plaintiff can expect the defendants to have. The FTC announced a significant expansion of the TSR in early 2024.

Federal Deception Law: 5.8 Records That Telemarketers and Sellers Must Keep

The Telemarketing Sales Rule (TSR) requires both sellers and telemarketers to keep a number of different types of records relating to telemarketing activities for twenty-four months from when the record is produced. The telemarketer and seller can mutually agree on who retains which records so that neither has to keep all records.317 The records often will prove useful in any private or public investigation of a telemarketing scheme.

Included among the records that must be kept are:

Federal Deception Law: 5.2.1 Introduction

The scope of the Telemarketing Sales Rule (TSR) is unusually complex. While the general scope is straightforward, exemptions apply to certain provisions or transactions but not to others. Many of the exemptions are also quite broad, drastically altering the scope of the TSR as it applies to most provisions and transactions.

Federal Deception Law: 5.2.3.4 General Limits to the FTC’s Jurisdiction

Due to general limitations on the FTC’s jurisdiction, the TSR does not apply to banks, federal credit unions, federal savings associations, common carriers, or—to the extent they are regulated by state law—insurers.60 However, a federal court found that the FTC has authority to enforce the TSR against a subsidiary of a national bank.61 Furthermore, the TSR covers non-bank entities that conduct telemarketing on behalf of banks.62 The same principle applie

Federal Deception Law: 16 C.F.R. § 310.2 Definitions.

(a) Acquirer means a business organization, financial institution, or an agent of a business organization or financial institution that has authority from an organization that operates or licenses a credit card system to authorize merchants to accept, transmit, or process payment by credit card through the credit card system for money, goods or services, or anything else of value.

(b) Attorney General means the chief legal officer of a state.

Federal Deception Law: 16 C.F.R. § 310.3 Deceptive telemarketing acts or practices.

(a) Prohibited deceptive telemarketing acts or practices. It is a deceptive telemarketing act or practice and a violation of this part for any seller or telemarketer to engage in the following conduct:

(1) Before a customer consents to pay3 for goods or services offered, failing to disclose truthfully, in a clear and conspicuous manner, the following material information:

Federal Deception Law: 16 C.F.R. § 310.7 Actions by states and private persons.

(a) Any attorney general or other officer of a State authorized by the State to bring an action under the Telemarketing and Consumer Fraud and Abuse Prevention Act, and any private person who brings an action under that Act, must serve written notice of its action on the Commission, if feasible, prior to its initiating an action under this part.

Federal Deception Law: 16 C.F.R. § 310.8 Fee for access to the National Do Not Call Registry.

(a) It is a violation of this part for any seller to initiate, or cause any telemarketer to initiate, an outbound telephone call to any person whose telephone number is within a given area code unless such seller, either directly or through another person, first has paid the annual fee, required by § 310.8(c), for access to telephone numbers within that area code that are included in the National Do Not Call Registry maintained by the Commission under § 310.4(b)(1)(iii)(B); provided, however, that such payment is not ne

Federal Deception Law: 16 C.F.R. § 310.9 Severability.

The provisions of this part are separate and severable from one another. If any provision is stayed or determined to be invalid, it is the Commission’s intention that the remaining provisions shall continue in effect.

[89 Fed. Reg. 26,785 (Apr. 16, 2024)19]

Federal Deception Law: 47 C.F.R. § 64.1200. Delivery restrictions

[Editor’s note: 47 C.F.R. § 64.1200 has recently been amended with varying effective dates and pending effective dates. This version displays 47 C.F.R. § 64.1200 in effect as of May 2024. Other amendments with their effective dates still pending—47 C.F.R. § 64.1200(a)(9)(i)(F), 47 C.F.R. § 64.1200(a)(10), 47 C.F.R. § 64.1200(a)(11), and 47 C.F.R. § 64.1200(d)(3)—are not reprinted in the text but are described in footnotes. The same with the amendment to 47 C.F.R.