New rules affect phone solicitors

To my knowledge, no law school as yet offers an advanced degree in telemarketing law.

This seems an oversight, since the topic is complex, economically significant and constantly evolving.

The latest changes in the law became effective Dec. 1 and are contained in something called the Telemarketing Sales Rule (TSR). The TSR is issued and enforced by the Federal Trade Commission (your great protector in the consumer marketplace).

The new changes to the TSR affect telemarketing conducted through prerecorded messages by sellers of goods or services and by for-profit fundraisers working for charitable organizations.

But, to back up a bit, in 2003, the FTC put into operation the national Do Not Call List.

This program allows individuals to register their home phones and cell phones, and prohibits most, but not all, telemarketers from calling numbers on the list. Exceptions include political campaigns, charitable organizations, companies conducting legitimate surveys, and companies having an existing business relationship with the person being called. ("You just bought a refrigerator. Wouldn't you like a big-screen TV to go with it?") Because of these exceptions, telemarketing calls still occur, and some are of the prerecorded variety, where opting out has been difficult.

Under the Dec. 1 changes to the TSR, any prerecorded message coming from a fundraiser or someone claiming an existing business relationship must tell you at the beginning of the call that you can punch in a number or say some words (probably not the words you want to say) that will put you on the caller's internal do-not-call list and disconnect the call. To give you a similar opt-out opportunity if the call is received by your answering machine or voice mail system, the prerecorded message must provide a toll-free number that connects to an automated system that will allow you to put yourself on the caller's internal do-not-call list. To further assist consumers in opting out of prerecorded message calls, the caller must let your phone ring at least 15 seconds before disconnecting.

The changes to the TSR also provide that, starting Sept. 1, prerecorded messages coming from someone claiming an existing business relationship will not be allowed at all unless the person being called opts in. In other words, a caller will have to obtain your prior written consent before making calls to you involving prerecorded messages.

The changes to the TSR don't apply to companies providing health care services. So, for example, your pharmacy will still be able to use an unrestricted prerecorded message to tell you it's time to refill your prescriptions. And political campaigns, banks, telephone companies and survey companies are exempt from the changes to the TSR. You'll just have to hang up on those calls in the usual manner.

Getting back to basics, you can put yourself on the FTC's Do Not Call List online at www.donotcall.gov, or by calling 1-888-382-1222. (Thanks to the Do Not Call Improvement Act of 2007, registration is now permanent, so you don't have to reregister every couple of years.) You can also register with Colorado's do-not-call list, which includes faxes and text messaging, at www.Coloradonocall.com or 1-800-309-7041. The Colorado list is run by the state's Public Utilities Commission.

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Jim Flynn is a private attorney at Flynn Wright & Fredman LLC in Colorado Springs. The firm primarily represents clients in the real estate, financial services and small-business sectors. Reach him at jtflynn@fwflegal.com.