iThe new amendments to the Telemarketing Sales Rule (“TSR”) from the Federal Communications Commission (“Commission”) includes several changes to recordkeeping requirements. One area which had significant changes is the area of recordkeeping for consent.
The TSR required a seller or telemarketer to keep “All verifiable authorizations or records of express informed consent or express agreement required to be provided or received under this Rule.” These consent records have to be kept for a period of 24 months.
Under the new rule, there is now a five year record retention period. And the scope of what is needed has been expanded. The expansion was necessary to allow the Commission to “clarify what constitutes a complete record of consent sufficient for a telemarketer or seller to assert an affirmative defense.”
The new rule, which will be in 16 C.F.R. § 310.5(a)(8), requires a complete record of consent to be retained. This complete record must include the following items:
1. the name and telephone number of the person providing consent;
2. a copy of the request for consent in the same manner and format in which it was presented to the person providing consent;
3. the purpose for which consent is requested and given;
4. a copy of the consent provided;
5. the date consent was given; and
6. documentation specific to consent around billing information required by other sections of the TSR.
The Commission also stated when consent is obtained via websites, the seller or telemarketer has to retain copies of the websites that were used to request the consent. Screenshots of the websites would suffice for this requirement, as long as they “accurately reflects what a consumer submitted in provided consent.”
In addressing the change, the Commission stated providing the categories of information required for consent gave businesses sufficient guidance, whereas not requiring a particular format gives the businesses the most flexibility. However, the Commission explicitly calls out “an IP address with a timestamp is not sufficient as a record of consent.”
If a telemarketer is gathering consent verbally, the telemarketer must “retain a recording of the consent requested as well as the consent provided…the recording must make clear the purpose for the which the consent was provided.” The Commission does not go as far as requiring the whole call be recorded and retained (unless other required in the TSR).
Some of these items are already captured during the ordinary course of business by telemarketers. Some of them are not. This is definitely a change for lots of telemarketers and their sellers.
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