Do inbound calls from ads fall under the Telemarketing Sales Rule?

When the inbound exemption doesn’t apply

310.6(b)(5) says the exemption “does not apply to”:

• “(i) Calls initiated by a customer or donor in response to an advertisement relating to investment opportunities, debt relief services, technical support services, business opportunities other than business arrangements covered by the Franchise Rule or Business Opportunity Rule, or advertisements involving offers for goods or services described in § 310.3(a)(1)(vi) or § 310.4(a)(2) through (4);”
• “(ii) The requirements of § 310.4(a)(9) or (10); or”
• “(iii) Any instances of upselling included in such telephone calls;”

If a campaign runs in one of those verticals, the exemption doesn’t help, and the rest of the TSR applies to the call.

The two payment rules that always apply

Even on an exempt inbound call, the rule’s bans on two payment methods still apply. 310.4(a)(9) bars “Creating or causing to be created, directly or indirectly, a remotely created payment order as payment for goods or services offered or sold through telemarketing”. 310.4(a)(10) bars “Accepting from a customer or donor, directly or indirectly, a cash-to-cash money transfer or cash reload mechanism as payment for goods or services offered or sold through telemarketing”.

Upsells aren’t covered

The rule defines it in 310.2: “Upselling means soliciting the purchase of goods or services following an initial transaction during a single telephone call. The upsell is a separate telemarketing transaction, not a continuation of the initial transaction.” So if a buyer’s agent offers something extra on an inbound call, that part of the call isn’t exempt.

Calls from email and direct mail are a separate case

Calls that respond to direct mail fall under 310.6(b)(6), and direct mail there includes “solicitations via the U.S. Postal Service, facsimile transmission, electronic mail, and other similar methods of delivery in which a solicitation is directed to specific address(es) or person(s)”. That exemption applies only when the mail piece “clearly, conspicuously, and truthfully discloses all material information listed in § 310.3(a)(1),” and it has its own list of exceptions, including “prize promotions”.

“Pay-per-call” in the TSR means something else

310.6(b)(1) exempts “The sale of pay-per-call services” subject to 16 CFR part 308. That isn’t pay-per-call lead generation. 16 CFR 308.2(c) points to 47 U.S.C. 228, which covers services “For which the caller pays a per-call or per-time-interval charge that is greater than, or in addition to, the charge for transmission of the call” and “Which is accessed through use of a 900 telephone number or other prefix or area code designated by the (Federal Communications) Commission”. A campaign that routes free inbound calls to buyers isn’t that.

Records, when the rule applies

For calls the rule covers, 310.5(a) says: “Any seller or telemarketer must keep, for a period of 5 years from the date the record is produced unless specified otherwise, the following records relating to its telemarketing activities”. The list includes “A record of each telemarketing call,” with “The telemarketer that placed or received the call” and “The seller or person for which the telemarketing call is placed or received”.

What this page does not decide

This guide doesn’t decide whether a particular campaign, vertical or call script is exempt. It doesn’t cover the FCC’s TCPA rules or state telemarketing laws, which are separate. For a specific campaign, ask counsel.