As of September 1, prerecorded commercial telemarketing calls to consumers or "robocalls" will be prohibited under the Telemarketing Sales Rule ("TSR"), unless the telemarketer has obtained prior written permission from consumers that explicitly states that they would like to receive such calls. This change is part of the FTC's August 2008 amendments to the TSR. In sum, the amendment prohibits telemarketing calls placed on and after September 1, 2009, that deliver prerecorded messages whether such calls are answered in person by a live consumer or by an answering machine or voicemail service; and regardless of whether or not the consumer has previously done business with the seller and whether or not the number called is listed on the Do Not Call Registry. Thus, under the new rule and "established business relationship" is no longer sufficient basis to place a prerecorded call to a consumer.

Penalties may be up to $16,000 per call.

There are a few notable exceptions to the prohibition: (1) calls that are purely informational and do not "attempt to interest consumers in the sale of any goods or services" (e.g., a reminder of a single appointment or a series of recurring appointments previously scheduled at the consumer’s request; an update on a prior sales transaction, including flight status updates; debt collection calls; or recall notifications); (2) calls not covered by the TSR – including calls from politicians, banks, telephone carriers, and most charitable organizations; and (3) certain health care related calls.

There are various other requirements prerecorded calls must adhere to that have been in effect prior to the September 1 rule. Such requirements include those that took effect on December 1, 2008 that require that any prerecorded call—even one where the telemarketer has the consumer's written permission—provide an “automated interactive opt-out mechanism that is announced and made available at the outset of the message” and that remains available throughout the call. Further, the December 1, 2008 rule requires that any prerecorded message left on an answering machine include a toll-free number that will provide the same automated opt-out mechanism when called by the consumer.

The new amendment to 16 C.F.R. § 310.4 (b)(1)(v) makes it an abusive act or practice and violation of the TSR for a "seller to cause a telemarketer to engage in the following conduct" and reads, in full, as follows:

“Initiating any outbound telephone call that delivers a prerecorded message, other than a prerecorded message permitted for compliance with the call abandonment safe harbor in § 310.4(b)(4)(iii), unless: (A) in any such call to induce the purchase of any good or service, the seller has obtained from the recipient of the call an express agreement, in writing, that: (i) the seller obtained only after a clear and conspicuous disclosure that the purpose of the agreement is to authorize the seller to place prerecorded calls to such person; (ii) the seller obtained without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service; (iii) evidences the willingness of the recipient of the call to receive calls that deliver prerecorded messages by or on behalf of a specific seller; and (iv) includes such person’s telephone number and signature; and (B) in any such call to induce the purchase of any good or service, or to induce a charitable contribution from a member of, or previous donor to, a nonprofit charitable organization on whose behalf the call is made, the seller or telemarketer:(i) allows the telephone to ring for at least fifteen (15) seconds or four (4) rings before disconnecting an unanswered call; and (ii) within two (2) seconds after the completed greeting of the person called, plays a prerecorded message that promptly provides the disclosures required by § 310.4(d) or (e), followed immediately by a disclosure of one or both of the following: (A) in the case of a call that could be answered in person by a consumer, that the person called can use an automated interactive voice and/or key press activated opt-out mechanism to assert a Do Not Call request pursuant to § 310.4(b)(1)(iii)(A) at any time during the message. The mechanism must: (1) automatically add the number called to the seller’s entity-specific Do Not Call list; (2) once invoked, immediately disconnect the call; and (3) be available for use at any time during the message; and (B) in the case of a call that could be answered by an answering machine or voicemail service, that the person called can use a toll-free telephone number to assert a Do Not Call request pursuant to § 310.4(b)(1)(iii)(A). The number provided must connect directly to an automated interactive voice or key press activated opt-out mechanism that: (1) automatically adds the number called to the seller’s entity-specific Do Not Call list; (2) immediately thereafter disconnects the call; and (3) is accessible at any time throughout the duration of the telemarketing campaign; and (iii) Complies with all other requirements of this Part and other applicable federal and state laws. (C) Any call that complies with all applicable requirements of this paragraph (v) shall not be deemed to violate § 310.4(b)(1)(iv) of this Part. (D) This paragraph (v) shall not apply to any outbound telephone call that delivers a prerecorded healthcare message made by, or on behalf of, a covered entity or its business associate, as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.”

For more information on compliance with the TSR, visit the FTC's Facts For Business: Complying with the Telemarketing Sales Rule, available at: http://www.ftc.gov/bcp/edu/pubs/business/marketing/bus27.shtm