Telemarketing Sales Rule vs. TCPA: What Calling Businesses Must Do

Since October 15, 2024, a company covered by the Federal Trade Commission’s Telemarketing Sales Rule has had to keep a record of each telemarketing call, with the time logged to the second unless a telemarketer dialed the number by hand. That rule sits next to the Telephone Consumer Protection Act, which governs many of the same calls. The two laws are enforced in different ways. A company that keeps the records the FTC now requires has much of what it needs to defend a TCPA claim.

Who enforces the Telemarketing Sales Rule, and who enforces the TCPA?

The FTC and state attorneys general enforce the Telemarketing Sales Rule (TSR), while the TCPA also gives private plaintiffs a claim for statutory damages.

Congress wrote the TSR’s enforcement around the government. Apart from listed exceptions that include the state and private actions it creates, the Telemarketing Act provides that it “shall be enforced by the Commission under the Federal Trade Commission Act,” under 15 U.S.C. § 6105, and the same section gives the Consumer Financial Protection Bureau enforcement authority over consumer financial products. State attorneys general can sue in federal court for their residents under 15 U.S.C. § 6103.

The FTC’s main money remedy is a civil penalty. The FTC Act lets the agency sue a company that broke a rule “with actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive and is prohibited by such rule,” under 15 U.S.C. § 45(m)(1)(A). For penalties assessed after January 17, 2025, the inflation-adjusted cap is $53,088 per violation, according to the FTC’s table at 16 C.F.R. § 1.98(d).

There is a private remedy under the Telemarketing Act, but it’s narrow. A person can sue only over a pattern or practice of violations, and only “if the amount in controversy exceeds the sum or value of $50,000 in actual damages for each person adversely affected by such telemarketing,” according to 15 U.S.C. § 6104(a), and the plaintiff must give the FTC written notice of the suit. There are no statutory damages. A few unwanted sales calls won’t come close to that threshold.

The TCPA works the other way. A person who received “more than one telephone call within any 12-month period by or on behalf of the same entity” in violation of the Do Not Call rules can sue “to receive up to $500 in damages for each such violation,” under 47 U.S.C. § 227(c)(5). If the court finds the violation willful or knowing, it may, in its discretion, increase the award to up to three times that amount, so up to $1,500 on a $500 award. The same paragraph gives the defendant an affirmative defense if it “has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection.” State attorneys general have their own TCPA action under § 227(g). The Federal Communications Commission writes the TCPA’s rules and has its own forfeiture authority, including under § 227(b)(4) for robocall violations.

So the risk profiles differ. TSR exposure comes from government enforcement. In the Day Pacer case discussed below, that meant a $28.6 million penalty in the trial court before the appeal and an order barring the companies and two of their principals from telemarketing. TCPA exposure comes from private demand letters and class actions priced per call. I’d plan for both, and I’d spend the first compliance dollar on records, because both laws reward a company that can prove what it did.

Where do the two Do Not Call regimes overlap?

They share one National Do Not Call Registry, the list the FTC maintains of phone numbers whose owners don’t want telemarketing calls, and most of the core rules line up.

Both the TSR and the FCC’s rules bar sales calls to Registry numbers unless an exception applies, chiefly an established business relationship with the person or the person’s signed, written agreement to be called. Both also require companies to keep their own list of people who’ve asked a specific seller to stop calling, and both limit sales calls to residences to the hours between 8 a.m. and 9 p.m. at the called person’s location (the TSR allows calls outside those hours with the person’s prior consent). The FCC’s version appears at 47 C.F.R. § 64.1200(c) and (d). The FTC’s is at 16 C.F.R. § 310.4(b) and (c).

The safe harbors line up too. Each gives a company a defense for a call to a Registry number if, as a routine business practice, it has written procedures, trains its people, keeps its internal list, and uses a version of the Registry obtained no more than 31 days before the call, and if the call was an error. The TSR adds that the company must monitor and enforce its procedures, and the FCC’s version requires the company to buy its own Registry access without sharing the cost. Both rules also require that the company “maintains records documenting this process,” in the words of both § 310.4(b)(3)(iv) and § 64.1200(c)(2)(i)(D).

Courts see the overlap. In FTC v. Day Pacer LLC, decided January 3, 2025, the Seventh Circuit rejected two lead-generation companies’ argument that they didn’t know the TSR covered their calls. The court wrote: “The defendants offered no explanation for how it was reasonable to conclude the TCPA applied to their businesses, yet the essentially equivalent TSR did not.” The court affirmed liability for millions of calls to Registry numbers, but it reversed the $28.6 million penalty award and remanded. It held that the trial court hadn’t considered the defendants’ ability to pay or their ability to continue in business, and had counted calls by partner companies without making findings about all but one of them.

Where the rules split

For a company that calls nationally, I’d comply with whichever rule is stricter on each point. Two lines in that table deserve a note. The TSR’s reach stops where the FTC Act’s does, because the Telemarketing Act says “no activity which is outside the jurisdiction of that Act shall be affected by this chapter,” per § 6105(a). The FTC Act in turn excludes banks and common carriers, among others, under 15 U.S.C. § 45(a)(2). And the TCPA’s stop-request window is changing. The FCC’s current rule says the period “may not exceed 30 days from the date of such request,” in § 64.1200(d)(3), and the FCC announced that its amended version, with a limit of ten business days, takes effect April 11, 2025, in a Federal Register notice published October 11, 2024.

What changed in the 2024 TSR amendments?

The FTC rewrote the TSR’s recordkeeping rule, extended its ban on misrepresentations to business-to-business calls, and later pulled inbound tech support calls into the rule.

The main amendments were published April 16, 2024, at 89 Fed. Reg. 26760. The notice states: “The amendments are effective May 16, 2024. However, compliance with 16 CFR 310.5(a)(2) is not required until October 15, 2024.” Paragraph (a)(2) is the new call-by-call record, so the most demanding requirement has applied for about four months now. I’d treat it as a deadline already passed, not a project for later this year.

The recordkeeping rule at 16 C.F.R. § 310.5 now opens: “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 old rule required two years. The list grew as well. Each call record must show who placed it and for which seller, the calling and called numbers, when the call started and how long it lasted, the script or prerecorded message used (a prerecorded message is a recording played to the person who answers), the caller ID transmitted, and the call’s disposition. Calls an individual telemarketer dials by hand, one number at a time, are exempt from the numbers, the timing, and the disposition fields, though the rest of the record still applies. Times must be kept to the closest second in Coordinated Universal Time. The rule also now requires full consent records, a record of each service provider that delivered calls, records of stop requests, and a record of which version of the Registry the company used.

Paperwork failures are violations in their own right. Under § 310.5(c), “Failure to keep each record required by paragraph (a) of this section in a complete and accurate manner, and in compliance with paragraph (b) of this section, as applicable, is a violation of this part.” There’s a defense for gaps in call records. The company has to document the procedures it set up and the training and monitoring behind them, and show that any gap was an inadvertent, temporary error it fixed within 30 days of discovery.

The same amendments made business-to-business calls subject to the TSR’s bans on misrepresentations and false or misleading statements, now written into § 310.6(b)(7). They did not bring business calls under the Do Not Call or recordkeeping rules. The FTC explained in the April 2024 notice that “The 2022 NPRM did not propose applying any other provisions of the TSR to B2B calls, such as recordkeeping, DNC Registry, or DNC fee access requirements.”

A second rule followed. The FTC’s final rule published December 10, 2024, at 89 Fed. Reg. 99069 extends the TSR to inbound calls made in response to ads for technical support services, effective January 9, 2025.

Which TSR records also defend a TCPA claim?

Many of them. Consent and an established business relationship are central defenses to a TCPA Do Not Call claim, along with the safe harbor, and each depends on proof. The TSR’s list reads like a checklist of what a defendant has to prove.

Consent is the clearest example. In Day Pacer, the defendants said consumers had agreed to calls on websites where the leads were bought, and they produced millions of web addresses to prove it. The FTC said it tested 750 of the 11,308,260 links and found all 750 defective, according to the Seventh Circuit’s opinion. The court’s conclusion: “They thus did not meet their burden of demonstrating express written agreement.” A TSR-compliant consent record under § 310.5(a)(8) keeps a copy of the request “in the same manner and format in which it was presented to the person providing Consent,” which is the evidence those links failed to provide.

The established-business-relationship defense works the same way. In Krakauer v. Dish Network, L.L.C., a TCPA Do Not Call class action, the Fourth Circuit observed that “Other relevant issues, such as the existence of a business relationship between the solicitor and the recipient of the call, are likely to be proven by records kept by the defendant company.”

Krakauer also shows that plaintiffs will use call records produced in the case, including a calling vendor’s records, to define a class. The Fourth Circuit said that “The class-wide data obviated any concern on this score.” I don’t think the answer is thinner records. It’s records that also show consent or a customer relationship number by number, because that’s the evidence a defendant needs to argue that particular people don’t belong in the class.

My view is that a business should build its call records to the TSR standard even when it believes the TSR doesn’t reach it, such as a company whose calls stay inside one state. The FCC’s rules don’t list call-detail fields the way the TSR now does, but many TCPA defenses depend on them. The UTC time stamp is a good example. Quiet-hours claims turn on local time at the called person’s location. A record kept to the second in UTC settles exactly when the call was made, which leaves only the question of where the person was.

A records checklist for calls under both laws

1. Call detail records for every campaign: calling and called numbers, time to the second, duration, caller ID, script or recorded message, and disposition, kept for five years and placed under a litigation hold once a claim arrives.
2. Consent records showing the exact form the person saw, the date, the phone number, and the seller named, plus the lead source for every purchased lead.
3. Internal do-not-call logs showing when each stop request came in, how it arrived, and when the number was suppressed.
4. Registry scrub records showing the account number, the date the Registry was downloaded, and the campaign it was used for.
5. Contracts with dialers, lead vendors, and outside telemarketers, including any written allocation of recordkeeping duties.
6. A lawyer’s review before the company answers a demand letter or an FTC request, contacts the person who complained, or offers money to resolve it.

The firm’s California TCPA defense lawyers page explains how it approaches claims involving calls to numbers on the National Do Not Call Registry.

Questions businesses ask about the TSR and the TCPA

Can a consumer sue our company under the Telemarketing Sales Rule?

Only in narrow cases. The Telemarketing Act’s private action requires a pattern or practice of violations and more than $50,000 in actual damages for each person affected, and it offers no statutory damages. The same calls may draw a TCPA Do Not Call claim, though, which allows statutory damages without proof of loss if the person received more than one violating call from the same entity within 12 months, subject to the defenses above.

Does the TSR apply to our calls to other businesses?

Partly. Business-to-business calls remain exempt from most of the TSR, including the Do Not Call and recordkeeping rules. Since May 16, 2024, though, the rule’s bans on misrepresentations and false or misleading statements apply to them. Calls selling nondurable office or cleaning supplies to businesses were already covered by more of the rule. The TCPA’s Do Not Call rules protect residential subscribers, so a true business line is also outside those claims.

If a vendor makes the calls, who has to keep the records?

The seller and the telemarketer can divide the duty in a written agreement under § 310.5(e). If the agreement puts the duty on the telemarketer, the seller must still have procedures to make sure the records are kept and must keep access to them. If there’s no agreement, or it’s unclear, both are responsible. I’d write that access right into every dialer and lead-vendor contract, because a TCPA defense often depends on records the vendor holds.

Do we have to pay for Registry access ourselves?

Your company needs its own paid access, though another person, such as a vendor, can pay on its behalf. The TSR bars calls to an area code unless the seller, directly or through another person, has paid the annual Registry fee for it, and it bans cost-sharing. Access costs $80 per area code after five free ones, up to $22,038, under the schedule in effect since October 1, 2024. The seller owes nothing if it calls only people who agreed in writing or have an established business relationship and doesn’t otherwise use the Registry.

If your company is answering a Do Not Call claim

If your company faces a Do Not Call lawsuit, demand letter, or government inquiry, the call records and consent files it kept often decide how the matter ends. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving calls to numbers on the National Do Not Call Registry. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The Telemarketing Act provisions are 15 U.S.C. § 6103, § 6104, and § 6105. The FTC Act provisions are at 15 U.S.C. § 45, and the TCPA is 47 U.S.C. § 227. The Telemarketing Sales Rule is 16 C.F.R. part 310, cited here at § 310.4, § 310.5, § 310.6, and § 310.8. The FCC’s rules are at 47 C.F.R. § 64.1200, and the penalty table is at 16 C.F.R. § 1.98, each as published in the eCFR through February 15, 2025.

The rulemaking documents are the FTC’s April 16, 2024 final rule, 89 Fed. Reg. 26760; its December 10, 2024 final rule, 89 Fed. Reg. 99069; and the FCC’s October 11, 2024 effective-date notice, 89 Fed. Reg. 82518.

The court decisions are FTC v. Day Pacer LLC, Nos. 23-3310, 24-1273 & 24-1289 (7th Cir. Jan. 3, 2025), and Krakauer v. Dish Network, L.L.C., 925 F.3d 643 (4th Cir. 2019).

This post is general information about the Telephone Consumer Protection Act and related laws as of February 15, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.