UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON. D.C. 20510
Federal n_d. Com... i.. ion
D,vIJlOn or Mukelinl Pracllcel
September II, 2009
Mr. Michael Bills, CEO
Call Assistant, LLC
1925 West Indiana Avenue
Salt Lake City, Utah 84104
Dear Mr. Bills:
You have requested an infonnal staffopinion as to the applicability to 2008 amendments
to the Telemarketing Sales Rule ("TSR") to a particular technology used by CallAssistant, L.C.
("CallAssistant"'). The amendments at issue impose new restrictions on the use of prerecorded
messages in telemarketing. 16 C.F.R. § 3IO.4(b)(I)(v); 73 Fed. Reg. 15204 (Aug. 29, 2008).
Specifically, these amendments require, as of December I, 2008, that any outbound
telemarketing call that delive~ a prerecorded message include: (I) if the call could be answered
in person by a consumer, an automated interactive voice andlor keypress-activated opt-out
mechanism that the call recipient can use at any time during the message to assert a Do Not Call
request pursuant to § 310.4(b){I)(iii)(A); and (2) if the call could be answered by an answering
machine or voicemail service, a toll-free telephone number that the call recipient can use to
assert a Do Not Call request pursuant to § 310.4(b)( 1)(iii)(A). Additionally, as of September I,
2009, the amendments prohibit any outbound telemarketing calt that delivers a prerecorded
message 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.
.
As described in your letter, CallAssistant uses technology that enables its calling agents
to interact with the rec.ipient of a call using his or her own voice or by substituting appropriate
audio recording of a response. According to your letter, when used to place outbound
telemarketing calls, this technology works as follows:
A live agent using the System places a call to a consumer and hea~ the consumer
greeting. In response to the greeting, the agent may elect to speak to the call
recipient using his or her voice, or may press a button to play an appropriate
recorded script segment. After the agent's response, the agent listens to the
consumer customer's reply. After listening to the consumer's reply, the live
agent again chooses whether to speak to the call recipient in his or her own voice,
or another recording. At all times, even during the playing of any recorded
segment, the agent retains the power to interrupt any recorded message to listen to
the consumer and respond appropriately.
Mr. Michael Bills
Page 2 of 3 Pages
Furthermore, according to your description, "live agents hear every word spoken by the call
recipient, and determine what is said" in response. A single agent always stays with a cat! from
beginning to end.
You seek an opinion as to whether the amended TSR provisions on the use of
prerecorded messages in telemarketing apply to CallAssistant's calls that employ the technology
summarized above. Based on the description of the technology included in your letter, the staff
of the Federal Trade Commission has concluded that the 2008 TSR amendments cited above do
not prohibit telemarketing calls using this technology if the calls that otherwise comply with the
TSR and other applicable law. The 2008 amendments at 16 C.F.R. § 31O.4(b)(l)(v) prohibit
calls that deliver a prerecorded message and do not allow interaction with call recipients in a
manner virtually indistinguishable from calls conducted by live operators. Unlike the
technology that you describe, the delivery of prerecorded messages in such calls does not
involve a live agent who controls the content and continuity of what is said to respond to
concerns, questions, comments - or demands - of the call recipient.
In adopting the 2008 TSR amendments, the Commission noted that the intrusion of a
telemarketing call on a consumer's right to privacy "may be exacerbated immeasurably when
there is no ~uman being on the other end of the line." 73 Fed. Reg. at 51180. The Commission
observed that special restrictions on prerecorded telemarketing messages were warranted
because they "convert the telephone from an instrument for two-way conversations into a one­
way device for transmitting advertisements." Id. l Consequently, in Staffs view, the concerns
about prerecorded messages addressed in the 2008 TSR amendments do not apply to the calls
described above, in which a live human being continuously interacts with the recipient of a call
in a two-way con.versation, but is permitted to respond by selecting recorded statements.
Nevertheless, the use of such technology in a campaign to induce the sales of goods or
services, or charitable. donations is "telemarketing" under the Telemarketing and Consumer
Fraud and Abuse Prevention Act, 15 U.S.C. § 6106(4), and therefore must comply with the
Rule's other requirements and prohibitions. In particular, the technology must connect an
outbound telephone call to a live agent within two seconds of the call recipient's completed
greeting. 16 C.F.R. § 31 O.4(b)(l)(iv). The agents making calls using this technology must
1 In adopting the 2008 amendments, the Commission recognized that in the future prerecorded
message might eliminate the objections that prompted the adoption of the these rules andjustify
exemptions permitting interactive prerecorded messages:
[T]he Commission notes that it is aware that the technology used in making prerecorded
messages interactive is rapidly evolving, and that affordable technological advances may
eventually penn it the widespread usc of interactive messages that arc essenti.ally
indistinguishable from conversing with a human being. Accordingly, nothing in this
notice should be interpreted to foreclose the possibility of petitions seeking further
amendment of the TSR or exemption from the provisions adopted here.
73 Fed. Reg. 51180 (Aug. 29, 2008).
\Mr. Michael Bills
Page 3 of 3 Pages
disclose the purpose of the call, the identity of the seller, make other required disclosures, and
comply with other TSR provisions preventing deceptive and abusive conduct. Id. §§ 310.3 and
310.4.
Please be advised that this opinion is based exclusively on aJl the information furnished
in your request. This opinion applies only to the extent that actual company practices confonn to
the material submitted for review. Please be advised further 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.
s:ct'
~c.·C
LOIs Greisman
Associate Director
Division of Marketing Practices