06-4630. Agency Information Collection Activities; Proposed Collection; Comment Request; Extension

AGENCY:

Federal Trade Commission (“FTC” or “Commission”).

ACTION:

Notice.

SUMMARY:

The information collection requirements described below will be submitted to the Office of Management and Budget (“OMB”) for review, as required by the Paperwork Reduction Act (“PRA”) (44 U.S.C. 3501-3520). The FTC is seeking public comments on its proposal to extend through May 31, 2009 the current PRA clearance for information collection requirements contained in its Telemarketing Sales Rule, 16 CFR 435 (“TSR” or “Rule”). On February 2, 2006, the OMB granted the FTC's request for a short-term extension of this clearance to May 31, 2006.

DATES:

Comments must be received on or before June 16, 2006.

ADDRESSES:

Interested parties are invited to submit written comments. Comments should refer to “Telemarketing Sales Rule: FTC File No. P994414” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope and should be mailed or delivered, with two complete copies, to the following address: Federal Trade Commission, Room H-135 (Annex J), 600 Pennsylvania Ave., NW., Washington, DC 20580. Because paper mail in the Washington area and at the Commission is subject to delay, please consider submitting your comments in electronic form, (in ASCII format, WordPerfect, or Microsoft Word) as part of or as an attachment to e-mail messages directed to the following e-mail box: [e-mail]. However, if the comment contains any material for which confidential treatment is requested, it must be filed in paper form, and the first page of the document must be clearly labeled “Confidential.” ^[1]

Comments should also be submitted to: Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission. Comments should be submitted via facsimile to [phone] because U.S. Postal Mail is subject to lengthy delays due to heightened security precautions.

The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments will be considered by the Commission and will be available to the public on the FTC Web site, to the extent practicable, at http://www.ftc.gov. As a matter of discretion, the FTC makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC website. More information, including routine uses permitted by the Privacy Act, may be found in the FTC's privacy policy at http://www.ftc.gov/​ftc/​privacy.htm.

FOR FURTHER INFORMATION CONTACT:

Requests for additional information or copies of the proposed information requirements should be sent to Gary Ivens, Attorney, Division of Marketing Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave., NW., Washington, DC 20580, [phone].

SUPPLEMENTARY INFORMATION:

On January 20, 2006, the FTC sought comment on the information collection requirements associated with the TSR, 16 CFR 435 (OMB Control Number: 3084-0097). See 71 FR 3302. No comments were received. Pursuant to the OMB regulations that implement the PRA (5 CFR 1320), the FTC is providing this second opportunity for public comment while seeking OMB approval to extend the existing paperwork clearance for the Rule. All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before June 16, 2006.

The TSR implements the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. 6101-6108 (“Telemarketing Act”), as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“USA PATRIOT Act”), Public Law 107056 (Oct. 25, 2001). The Telemarketing Act seeks to prevent deceptive or abusive telemarketing practices in telemarketing, which, pursuant to the USA PATRIOT Act, includes calls made to solicit charitable contributions. It mandates certain disclosures by telemarketers, and directs the Commission to consider including recordkeeping requirements in promulgating a telemarketing rule to address such practices. The TSR, implementing the Telemarketing Act, mandates certain disclosures regarding telephone sales and requires telemarketers to retain certain records regarding advertising, sales, and employees. The disclosures provide consumers with information necessary to make informed purchasing decisions. The records are available for inspection by the Commission and other law enforcement personnel to determine compliance with the Rule. Records may also yield information helpful to measuring and redressing consumer injury stemming from Rule violations.

On January 29, 2003, the Commission issued final amendments to the TSR, which, inter alia, established the National Do Not Call Registry (“National Registry”), permitting consumers to register, via either a toll-free telephone number or the Internet, their preference not to receive certain telemarketing calls.^[2] Accordingly, under the TSR, most telemarketers are required to refrain from calling consumers who have placed their numbers on the National Registry.^[3] Telemarketers must periodically access the National Registry to remove from their telemarketing lists the telephone numbers of those consumers who have registered.^[4] Other than the minimal burden associated with supplying basic identifying information to the operator of the National Registry, which is discussed below, the amendments to the Rule associated with the National Registry do not impact PRA burden.

The Supporting Statement for Information Collection Provisions of the TSR (“2003 Supporting Statement”), submitted to OMB following the 2003 amendment of the TSR, includes substantial analysis in support of the burden estimates included in that document.^[5] The figures used in this Notice are based on those from the 2003 Supporting Statement, updated when necessary and when newer figures are available.

Burden Statement

Estimated annual hours burden: 2,500,000 hours.

The estimated recordkeeping burden is 28,000 hours for all industry members affected by the Rule. The estimated burden related to the disclosures that the Rule requires is 2,472,000 hours (rounded to nearest thousand) for all affected industry members. Thus, the total PRA burden is 2,500,000 hours.

Recordkeeping: Following the publication of the amended TSR in 2003, the Commission staff estimated that there were 7,400 telemarketing firms that were potentially subject to the Rule. This estimate was based on the limited input the Commission received in response to the Original User Fee NPRM, 67 FR 37,362 (May 29, 2002), regarding the number of firms that would likely access the National Registry as well as further staff analysis of the information received. Since that time, the Commission has begun operation of the National Registry, and, in the year March 1, 2005, through February 28, 2006, slightly less than 66,200 entities accessed the National Registry.^[6] Of these, approximately 1,300 were “exempt” entities obtaining access to data for more than one state.^[7] By definition, none of the exempt entities are subject to the TSR. Additionally, 49,574 were non-exempt entities obtaining data for only a single state. Staff assumes that these entities are operating solely intrastate, and thus are exempt from the TSR.^[8] Thus, staff estimates that 15,000 entities, rounded to the nearest thousand, (66,200 − 1,300 − 49,574 = 15,326) are currently subject to the TSR.

The staff continues to estimate that these 15,000 telemarketing entities subject to the Rule each require approximately 1 hour per year to file and store records required by the TSR for an annual total of 15,000 burden hours (rounded to the nearest thousand (15,000 × 1 = 15,000)).^[9] The Commission staff also estimates that 75 new entrants per year would need to spend 100 hours each developing a recordkeeping system that complies with the Rule for an annual total of 7,500 burden hours. These figures, based on prior estimates, are consistent with staff's current knowledge of the industry. Thus, the total estimated annual recordkeeping burden for new and existing telemarketing entities is 23,000 hours (rounded to the nearest thousand).

In the 2003 Supporting Statement, the Commission staff estimated that 2,500 telefunder firms—professional telefunders soliciting on behalf of charities—would also be subject to the Rule, which was amended to include calls to solicit charitable contributions pursuant to the USA PATRIOT Act.^[10] Staff estimated that the recordkeeping burden per entity per year would be no more than one hour for a cumulative total of approximately 2,500 hours. Staff also estimated that 25 new telefunding entrants per year would require 100 hours each to set up recordkeeping systems that would comply with the TSR. Thus, the cumulative recordkeeping burden for telefunder firms was 5,000 hours. No new data suggests that these estimates are inaccurate; therefore, the Commission staff retains these estimates.

The cumulative annual recordkeeping burden for all entities subject to the TSR—both telefunder and telemarketing firms alike—is 28,000 hours.

Disclosures: Staff believes that a substantial majority of telemarketers make in the ordinary course of business the disclosures the Rule requires because to do so constitutes good business practice. To the extent this is so, the time and financial resources needed to comply with disclosure requirements do not constitute “burden.” 16 CFR 1320.3(b)(2). Moreover, many state laws require the same or similar disclosures the Rule mandates. Thus, the disclosure hours burden attributable solely to the Rule is far less than the total number of hours associated with the disclosures overall. As when the FTC last sought OMB clearance for this Rule, staff estimates that most of the disclosures the Rule requires would be made in at least 75 percent of telemarketing calls even absent the Rule. Accordingly, staff determined that the hours burden estimate for most of the Rule's disclosure requirements is 25 percent of the total hours associated with disclosures of the type the TSR requires.

Staff estimates the total disclosure burden attributable to the Rule to be 2,472,000 hours (rounded to the nearest thousand). Based on industry data, staff estimates that the 15,000 telemarketing entities subject to the Rule make 6.2 billion calls per year, or 413,000 calls per year per company (rounded to the nearest thousand).^[11] The TSR provides that if an industry member chooses to solicit inbound calls from consumers by advertising media other than direct mail or by using direct mail solicitations that make certain required disclosures (providing for an inbound telephone call as a possible response), that member is exempted from complying with the Rule's oral disclosures. Based on previous estimates, staff estimates that of the 15,000 telemarketing entities, 12,656 (27:32) firms conduct inbound telemarketing, and that of these, approximately 4,200 (one-third) will choose to adopt marketing methods that exempt them from complying with the Rule's verbal disclosure requirements.^[12]

The staff retains its estimate that, in a telemarketing call involving the sale of goods or services, it takes 7 seconds for telemarketers to disclose the required outbound call information orally plus 3 additional seconds to disclose the information required in the case of an upsell.^[13] Staff also retains its estimate that at least 60 percent of sale calls result in “hang-ups” before the telemarketer can make all the required disclosures and that “hang-up” calls consume only 2 seconds. Accordingly, staff estimates that the total time associated with these disclosure requirements is approximately 1.14 million hours per year [((1.2 billion non-hangup calls [2.9 billion outbound calls × 40%] × 7 seconds) + (1.7 billion hangup calls [2.9 billion × 60%] × 2 seconds) + (570 million calls × 40% [estimated upsell conversion] × 3 seconds) + (3.3 billion inbound calls × 40% [estimated upsell conversion] × 3 seconds)) × 25% burden] or 76 hours per firm [1.14 million hours /15,000 firms].

The TSR also requires further disclosures in telemarketing sales calls before the customer pays for goods or services. These disclosures include the total costs of the offered goods or services; all material restrictions; and all material terms and conditions of the seller's refund, cancellation, exchange, or repurchase policies (if a representation about such a policy is a part of the sales offer). Additional specific disclosures are required if the call involves a prize promotion, the sale of credit card loss protection products or an offer with a negative option feature.

Staff estimates that the general sales disclosures require 499,167 hours annually. This figure includes the burden for written disclosures [(4,200 firms [estimated using direct mail] × 10 hours per year × 25% burden) = 10,500 hours, as well as the figure for oral disclosures [(570 million calls × 8 seconds × 25% burden) + (570 million outbound calls × 40% (upsell conversion) × 20% sales conversion × 25% burden × 8 seconds) + (3.3 billion inbound calls × 40% upsell conversion × 20% sales conversion × 25% burden × 8 seconds)].

Staff also estimates that the specific sales disclosures require 53,348 hours annually [(570 million calls × 5% [estimated involving prize promotion] × 3 seconds × 25% burden) + (570 million calls × .1% [estimated involving credit card loss protection (“CCLP”)] × 4 seconds) + (570 million calls × 40% upsell conversions × 20% sales conversions × .1% [estimated involving CCLP] × 4 seconds) + (3.3 billion inbound calls × 40% upsell conversion × 20% sales conversion × .1% [estimated involving CCLP] × 4 seconds) + (570 million calls × 10% [estimated involving negative options] × 4 seconds × 25% burden) + (570 million calls × 40% upsell conversion × 20% sales conversions × 10% [estimated involving negative options] × 4 seconds × 25% burden) + (3.3 billion inbound calls × 40% upsell conversions × 20% sales conversions × 10% [estimated involving negative options] × 4 seconds × 25% burden)] + (3.3 billion inbound calls × .3% [estimated business opportunity] × 8 seconds). The total annual burden for all of the sales disclosures is 553,000 hours (rounded to the nearest thousand) or 37 hours annually per firm.

As noted above, staff retains its prior estimate that 2,500 telefunder firms are subject to the Rule. The only disclosures that the TSR requires in solicitations for charitable contributions are the disclosures in § 310.4(e)—that the call is to solicit a charitable contribution and the identity of the charitable organization on whose behalf the call is being made. The total burden for disclosures made in solicitations for charitable contributions is 778,000 hours (rounded to the nearest thousand) [(1.6 billion calls with no early hang up × 4 seconds × 25% burden) + (2.4 billion calls with early hang-up × 2 seconds × 25% burden].

Finally, any entity that accesses the National Registry, regardless of whether it is paying for access, must submit minimal identifying information to the operator of the National Registry. This basic information includes, the name address and telephone number of the entity, a contact person for the organization, and information about the matter of payment. The entity also needs to submit a list of the area codes of data for which it requests information. In addition, the entity has to certify that it is accessing the National Registry solely to comply with the provisions of the TSR. If the entity is accessing the National Registry on behalf of other seller or telemarketer clients, it has to submit basic identifying information about those clients, a list of the area codes of data for which it requests information on their behalf, and a certification that the clients are accessing the National Registry solely to comply with the TSR.

Commission staff continues to estimate, as it did in the Original User Fee NPRM, that it should take no longer than two minutes for each entity to submit this basic information, and that each entity would have to submit the information annually.^[14] Based on the number of entities accessing the National Registry that are subject to the TSR, this requirement will result in 500 burden hours (15,000 entities × 2 minutes per entity). In addition, Commission staff continues to estimate that possibly one-half of those entities may need, during the course of their annual period, to submit their basic identifying information more than once in order to obtain additional area codes of data. This would result in an additional 250 burden hours (7,500 entities × 2 minutes per entity). Thus, Commission staff estimates that accessing the National Registry will impose a total burden of approximately 750 hours per year.

Thus, the cumulative annual disclosure burden for all entities subject to the TSR—both telefunder and telemarketing firms alike—is 2,472,000 hours (rounded to the nearest thousand).

Estimated annual labor cost burden: $37,448,000 (rounded to the nearest thousand).^[15]

Recordkeeping: The estimated labor cost for recordkeeping for all entities, both telefunders and telemarketing firms, is $375,000. Assuming a cumulative burden of 7,500 hours/year to set up compliant recordkeeping systems for new telemarketing entities, and applying to that a skilled labor rate of $20/hour, labor costs would approximate $150,000 yearly for all new telemarketing entities. As indicated above, staff estimates that existing telemarketing entities require 15,000 hours, cumulatively, to maintain compliance with the TSR's recordkeeping provisions. Applying a clerical wage rate of $10/hour, recordkeeping maintenance for existing telemarketing entities would amount to an annual cost of approximately $150,000.

Based on the estimated cumulative burden of 2,500 hours/year to set up compliant recordkeeping systems for new telefunder entities, and applying to that a skilled labor rate of $20/hour, cumulative labor costs would be approximately $50,000. In addition, the annual estimated labor cost for maintaining records relating to solicitations for existing telefunder entities would be $25,000 (2,500 burden hours × $10/hour).

Disclosures: The estimated annual labor cost for disclosures for all entities, both telefunders and telemarketing firms is $37,073,000 (rounded to the nearest thousand). This estimate was derived in part by applying a wage rate of $15 per hour to: (1) 1,140,000 hours attributed to disclosing outbound call information and disclosing the information required in the case of an upsell; (2) 553,000 hours attributed to all sales disclosures; and (3) 778,000 hours for the disclosure made in solicitations for charitable contributions.

The remaining portion of the labor cost estimate is associated with supplying basic identifying information to the National Registry operator. Applying a clerical wage of $10 per hour, the cumulative annual labor cost for entities that provide the requisite information and are subject to the TSR is approximately $7,500 (750 hours × $10).^[16]

Estimated annual non-labor cost burden: $12,575,000 (rounded to the nearest thousand).^[17]

Total capital and start-up costs: Staff estimates that the capital and start-up costs associated with the TSR's information collection requirements are de minimis. The Rule's recordkeeping requirements mandate that companies maintain records but not in any particular form. While those requirements necessitate that affected entities have a means of storage, industry members should have that already regardless of the Rule. Even if an entity finds it necessary to purchase a storage device, the cost is likely to be minimal, especially when annualized over the item's useful life. The Rule's disclosure requirements require no capital expenditures.

Other non-labor costs: Affected entities need some storage media such as file folders, computer diskettes, or paper in order to comply with the Rule's recordkeeping requirements. Although staff believes that most affected entities would maintain the required records in the ordinary course of business, staff estimates that the approximately 15,000 telemarketers subject to the Rule spend an annual amount of $50 each on office supplies as a result of the Rule's recordkeeping requirements, for a total recordkeeping cost burden of $750,000. Oral disclosure estimates, discussed above, applied to a retained estimated commercial calling rate of 6 cents per minute ($3.60 per hour), totals $8,899,000 (rounded to the nearest thousand) (2,472,000 hours × $3.60 per hour) in phone-related costs. Accordingly, the non-labor costs for telemarketing entities associated with the Rule's information collection provisions is $9,649,000 ($8,899,000 in phone related costs + $750,000 for office supplies). Non-labor costs incurred by telefunders for telefunder organizations are estimated to be $2,926,000 (rounded to the nearest thousand) (778,000 estimated hours @ $3.60 per hour + $125,000 in office supply-related costs (2500 telefunders @ $50 each)). Thus, the total non-labor costs for all entities subject to the TSR is $12,575,000.^[18]

Finally, staff believes that the estimated 4,200 inbound telemarketing entities choosing to comply with the Rule through written disclosures incur no additional capital or operating expenses as a result of the Rule's requirements because they are likely to provide written information to prospective customers in the ordinary course of business. Adding the required disclosures to that written information likely requires no supplemental non-labor expenditures.

William Blumenthal,

General Counsel.

Footnotes

1.  Commission Rule 4.2(d), 16 CFR 4.2(d). The comment must be accompanied by an explicit request for confidential treatment, including the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. The request will be granted or denied by the Commission's General Counsel, consistent with applicable law and the public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c).

2.  68 FR 4580 (Jan. 29, 2003).

3.  16 CFR 310.4(b)(1)(iii)(B).

4.  16 CFR 310.4(b)(3)(iv). The TSR requires telemarketers to access the National Registry at least once every 31 days, effective January 1, 2005. See 69 FR 16368 (Mar. 29, 2004). The Commission has recently proposed to revise the fees charged to entities who must pay for access to the National Registry. See 71 FR 25512 (May 1, 2006).

5.  The 2003 Supporting Statement is available at http://www.ftc.gov/​bcp/​rulemaking/​tsr/​tsrrulemaking/​tsrss2003.pdf.

6.  The March 2005 through February 2006 time frame differs from that used in the January 20, 2006 Notice (which used data from calendar year 2004) and the burden estimates herein have been adjusted accordingly.

7.  An exempt entity is one that, although not subject to the TSR and the Federal Communication Commission's Telephone Consumer Protection Act regulations, chooses to voluntarily scrub its calling lists against the data in the National Registry.

8.  These entities would nonetheless likely be subject to the Federal Communication Commission's Telephone Consumer Protection Act regulations, including the requirement that entities engaged in intrastate telephone solicitations access the National Registry.

9.  The January 20, 2006 Notice erroneously indicated a burden of 2.3 hours per entity.

10.  Telefunders are not subject to the National Registry provisions of the TSR.

11.  Staff's estimates are likely to be conservative in light of consumer research that has been conducted after implementation of the National Registry. For example, one survey conducted by Harris Interactive® in January 2004 determined that 92% of consumers who signed up for the National Registry received fewer telemarketing calls and 25% reported that they had received no telemarketing calls. Similarly, another survey conducted by Customer Care Alliance found that 60% of consumers who placed their home telephone number on the National Registry experienced an 80% reduction in the volume of telemarketing calls. Nonetheless, as noted above, the figures used in this Notice are based on those from the 2003 Supporting Statement, updated when necessary and when newer figures are available. Accordingly, due to the lack of precise, verifiable information concerning the current volume of telemarketing calls, staff continues to rely upon the data released by the Direct Marketing Association (“DMA”) in 2001. See The DMA, Statistical Fact Book 2001 (23rd ed. 2001).

12.  While staff does not have information directly stating the number of inbound telemarketers, it notes that, according to the DMA 27% of all direct marketing in Year 2000 was by inbound telemarketing and 32% was by outbound telemarketing. See Statistical Fact Book 2001 at p. 25. No new data suggests that these estimates have changed. Accordingly, using a 27:32 ratio, staff estimates that the number of inbound telemarketers is approximately 12,656 (15,000 × 27/32).

13.  An “upsell” is the soliciting of the purchase of goods or services after an initial transaction occurs during a single telephone call. The solicitation may be made by or on behalf of a seller different from the seller in the initial transaction, regardless of whether the initial transaction and the subsequent solicitation are made by the same telemarketer (“external upsell”). Or, it may be made by or on behalf of the same seller as in the initial transaction, regardless of whether the initial transaction and subsequent solicitation are made by the same telemarketer (“internal upsell”).

14.  See 67 FR 37366 (May 29, 2002). As stated in the Original User Fee NPRM, this estimate is likely to be conservative for PRA purposes. The OMB regulation defining “information” generally excludes disclosures that require persons to provide facts necessary simply to identify themselves, e.g., the respondent, the respondent's address, and a description of the information the respondent seeks in detail sufficient to facilitate the request. See 5 CFR 1320.3(h)(1).

15.  The January 20, 2006 Notice erroneously indicated $20,315,000.

16.  Staff continues to assume that clerical employees will submit the minimal identifying information. See 68 FR 16238, 16246 (April 3, 2003).

17.  The January 20, 2006 Notice erroneously indicated $5,613,000.

18.  Staff believes that remaining non-labor costs would largely be incurred by affected entities, regardless, in the ordinary course of business and/or marginally be above such costs.