Therefore, a seller may use a written agreement that is both created and retained in electronic form, so long as the seller can demonstrate that the seller’s procedures comply with E-SIGN, and conform to the TSR’s written agreement requirements
- Before the consumer agrees, the seller must clearly and conspicuously disclose the consequences of agreeing – namely, that the agreement will result in the seller delivering prerecorded messages to the consumer via telemarketing calls;
- The seller may not require, directly or indirectly, that a consumer agree to receive prerecorded message calls as a precondition for purchasing or receiving any good or service; and
- The seller must give the consumer an opportunity to designate the telephone number to which the calls may be placed.
Sellers bear the burden of demonstrating that these prerequisites have been met, and that they possess the required written agreements from consumers to receive prerecorded calls for all such calls that they place.
Is there a particular medium or format the seller must use in obtaining a consumer’s written agreement to receive calls that deliver prerecorded messages? A seller need not obtain or retain the consumers agreement in paper form. The TSR expressly permits sellers to use electronic records that comply with the Electronic Signatures In Global and National Commerce Act (“E-SIGN”). Thus, consumers’ express agreements to receive prerecorded message calls could be obtained by means of email, a website form, a telephone keypress during a live call with a sales agent, or a voice recording.
The Requirement that Prerecorded Telemarketing Messages Include an Automated Interactive Opt-Out Mechanism
Calls that deliver a prerecorded message must include an automated interactive opt-out mechanism that is announced and made available for the call recipient to use at the outset of the message. The opt-out must follow immediately after the initial disclosures – explained in the section on Prompt Disclosures in Outbound Telemarketing Calls – that the TSR imposes on all telemarketing calls.
- In the case of a prerecorded message to induce the purchase of a good or service, the opt-out mechanism must be announced and made available to use immediately after the mandatory disclosures – the seller’s identity, that the purpose of the call is to sell goods or services, the nature of the goods or services, and, if a prize promotion is offered, the fact that no purchase or payment is necessary to participate.
- In the case of a prerecorded message call placed by a telefunder to solicit charitable contributions on behalf of a non-profit organization, the opt-out mechanism must be announced and made available to use immediately after the mandatory disclosure of the identity of the charitable organization on behalf of which the call is made, and the fact that the purpose of the call is to solicit a charitable contribution.
Sellers and telemarketers using prerecorded telemarketing calls must employ automated technology capable of automatically placing a consumer’s telephone number on the seller’s Do Not Call list in CO payday loans response either to spoken words, or the pressing of a specified key on the telephone keypad.
If it is possible that a prerecorded telemarketing call may be answered by a consumer in person, the message must disclose at the outset (as discussed above) how to use the required voice-or-keypress-activated interactive opt-out mechanism to add the consumer’s number to the seller’s entity-specific Do Not Call list. Moreover, the opt-out mechanism must:
- be available for call recipients to use at any time during the message;
- when invoked, automatically add the call recipient’s number to the seller’s entity-specific Do Not Call list; and