On April 27, 2022, the Federal Trade Commission (FTC) unanimously approved a Notice of Proposed Rulemaking (NPRM) (and an Advanced Notice of Proposed Rulemaking (ANPRM)) to make adjustments to the agency’s Telemarketing Sales Rule at 16 C.F.R. Part 310 (TSR). Among other things, the TSR “requires telemarketers to make specific disclosures of material information; prohibits misrepresentations; sets limits on the times telemarketers may call consumers; prohibits calls to a consumer who has asked not to be called again; and sets payment restrictions for the sale of certain goods and services” (https://www.ftc.gov/legal-library/browse/rules/telemarketing-sales-rule0).

The NPRM (https://www.ftc.gov/system/files/ftc_gov/pdf/TSR%20NPRM%20v32.pdf) would, among other things, “require telemarketers and sellers to maintain additional records of their telemarketing transactions, prohibit material misrepresentations and false or misleading statements in business to business (“B2B”) telemarketing transactions, and add a new definition for the term “previous donor.”

With respect to the changes to the existing B2B exemption, the NPRM notes that “[s]ince 2003, the Commission has continued to see businesses harmed by deceptive B2B telemarketing,” citing a number of different forms “including schemes that sell business directory listings, web hosting or design services, search engine optimization services, and market-specific advertising opportunities, as well as schemes that impersonate the government.” As a result, the agency “believes it is now time to reassess the B2B exemption and address problems associated with B2B telemarketing.”

For now, the agency proposes “to require all B2B telemarketing calls to comply with the TSR’s existing prohibitions on misrepresentations articulated in Sections 310.3(a)(2) and 310.3(a)(4).” These provisions deal with “(1) several types of material misrepresentations in 3 the sale of goods or services; and (2) false or misleading statements to induce a person to pay for goods or services or to induce a charitable contribution.”

However, as part of the separate ANPRM, the FTC “seeks comments on the B2B exemption generally, including comments addressing whether the Commission should remove the exemption entirely.” The ANPRM would also consider other changes. (https://www.ftc.gov/system/files/ftc_gov/pdf/ANPR%20v%2030.pdf)

Both the NPRM and ANPRM pose specific questions on which the agency seeks input. The latter includes a specific list of “Questions for Business-to-Business Telemarketing Calls.”

Comments on the NPRM and ANRPM will be due no later than 60 days after publication in the Federal Register.