What hours may we call a consumer at home?

Only between 8:00 a.m. and 9:00 p.m., measured at the called person’s location, unless the person has given prior consent. A telemarketer that places outbound calls to a residence at any other time, without that consent, commits an abusive telemarketing act or practice.

Does the limit apply when a customer calls us first?

Calls a customer starts on their own are generally outside the rule, but not if the call involves upselling. The exemption covers calls initiated by a customer or donor that are not the result of any solicitation by a seller, charitable organization, or telemarketer, and it expressly does not apply to any instances of upselling included in those calls.

If a sale falls under a partial exemption, are we excused from the calling-hours limit?

Not for pay-per-call services, franchise or business-opportunity sales, or sales completed only after a face-to-face presentation. Each of those exemptions states that it does not apply to the requirements of § 310.4(c), the calling-time rule, so those calls must still stay inside the window.

Does the limit cover our sales calls to other businesses?

Generally not, unless the call falls within a carve-out. Calls between a telemarketer and a business to induce the purchase of goods or services are covered by a separate exemption, and that exemption does not apply to calls to induce the retail sale of nondurable office or cleaning supplies.

How do we show our calls stayed within the window?

By keeping call-level records that include the date and time of each call, in the format the rule requires. The rule requires a record of each telemarketing call, including the calling number, called number, date, time, and duration, and it requires time to be recorded in Coordinated Universal Time (UTC).

Can a vendor that runs the dialer be liable if our campaign calls at the wrong hours?

Yes, if it knows or consciously avoids knowing about the violation and still provides substantial assistance. The rule makes it a violation for a person to provide substantial assistance or support to a seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice that violates § 310.4, which is where the calling-time restriction sits.

Lead GenerationLegal test

Calling-time restrictions

Berkeley Robinson, Managing Attorney at Robinson Law Firm PLLC

Author

Berkeley Robinson, Esq.

Managing Attorney, Robinson Law Firm PLLC

Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.

Definition

“Calling-time restrictions” is used in more than one setting, and its meaning depends on the context. In consumer protection, it means a limit on when a telemarketer may place outbound telephone calls to a person’s residence: only between 8:00 a.m. and 9:00 p.m. local time at the called person’s location, unless the person has given prior consent. Source: 16 C.F.R. § 310.4(b)(1)(iii)(B)(2), (b)(1)(v)(A) Under the Telemarketing Sales Rule, a call outside that window, made without prior consent, is an abusive telemarketing act or practice. Source: 16 C.F.R. § 310.4(b)(1)(iii)(B)(2), (b)(1)(v)(A)

Key legal rules

These are the main calling-time rules for outbound sales calls to homes:

Without the prior consent of a person, it is an abusive telemarketing act or practice and a violation of the Telemarketing Sales Rule for a telemarketer to engage in outbound telephone calls to a person's residence at any time other than between 8:00 a.m. and 9:00 p.m. local time at the called person's location. Source: 16 C.F.R. § 310.4(b)(1)(iii)(B)(2), (b)(1)(v)(A)
The limit governs outbound telephone calls, which the rule defines as calls initiated by a telemarketer to induce the purchase of goods or services or to solicit a charitable contribution. Source: 16 C.F.R. § 310.2(q)
Calls initiated by a customer or donor that are not the result of any solicitation by a seller, charitable organization, or telemarketer are exempt from the rule, but the exemption does not apply to any instances of upselling included in those calls. Source: 16 C.F.R. § 310.6(b)
Common TSR exemptions for pay-per-call services, franchise and business-opportunity sales, and calls where the sale is not completed until after a face-to-face presentation do not apply to the calling-time requirement of § 310.4(c). Source: 16 C.F.R. § 310.6(b)
A seller or telemarketer must keep, for 5 years from the date the record is produced unless specified otherwise, a record of each telemarketing call that includes the calling number, called number, date, time, and duration of the call, except that a seller or telemarketer need not retain that detail for calls an individual telemarketer makes by manually entering a single telephone number. The time of a call must be kept to the closest second and recorded in Coordinated Universal Time (UTC). Source: 16 C.F.R. § 310.5(a), (c)

For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.

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Why these rules exist

The Telemarketing Act lists “restrictions on the hours of the day and night when unsolicited telephone calls can be made to consumers” among the abusive-practice protections the FTC’s rules are to include. Source: 15 U.S.C. § 6102(a)(3), (c) (as reproduced in Final Brief of the Federal Trade Commission, Soundboard Ass'n v. FTC, No. 17-5093 (D.C. Cir.)) Alongside it, the Act calls for a requirement that telemarketers not undertake “a pattern of unsolicited telephone calls which the reasonable consumer would consider coercive or abusive of such consumer’s right to privacy.” Source: 15 U.S.C. § 6102(a)(3), (c) (as reproduced in Final Brief of the Federal Trade Commission, Soundboard Ass'n v. FTC, No. 17-5093 (D.C. Cir.))

The interest being protected is the home itself: as the Supreme Court put it in Frisby v. Schultz, as quoted in the FTC’s D.C. Circuit brief in Soundboard Association v. FTC, “The State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Source: Final Brief of the Federal Trade Commission, Soundboard Ass'n v. FTC, No. 17-5093 (D.C. Cir.)

Enforcement examples

United States v. Comcast Corporation (outbound telemarketing)

United States v. Comcast Corp., No. 2:09-cv-01589-HB (E.D. Pa. Apr. 16, 2009) (Stipulated Judgment and Order for Permanent Injunction)

The Comcast action was brought for violations of the Do-Not-Call provisions of the Telemarketing Sales Rule. Source: United States v. Comcast Corp., No. 2:09-cv-01589-HB (E.D. Pa. Apr. 16, 2009) (Stipulated Judgment and Order for Permanent Injunction) The order permanently enjoined Comcast from engaging in, causing others to engage in, or assisting others in violations of the Telemarketing Sales Rule. Source: United States v. Comcast Corp., No. 2:09-cv-01589-HB (E.D. Pa. Apr. 16, 2009) (Stipulated Judgment and Order for Permanent Injunction) The rule the order quotes includes the 8:00 a.m. to 9:00 p.m. calling-time restriction. Source: United States v. Comcast Corp., No. 2:09-cv-01589-HB (E.D. Pa. Apr. 16, 2009) (Stipulated Judgment and Order for Permanent Injunction)

Outcome. The order entered a $900,000 civil penalty against Comcast under Section 5(m)(1)(A) of the FTC Act. Source: United States v. Comcast Corp., No. 2:09-cv-01589-HB (E.D. Pa. Apr. 16, 2009) (Stipulated Judgment and Order for Permanent Injunction) It also required Comcast, for five years, to maintain business records demonstrating compliance and to make them available on written request. Source: United States v. Comcast Corp., No. 2:09-cv-01589-HB (E.D. Pa. Apr. 16, 2009) (Stipulated Judgment and Order for Permanent Injunction)

FTC v. Netlatitude, Inc. (telephone service provider with telemarketing customers)

Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (Netlatitude-Hannigan), FTC v. Netlatitude, Case No. 23-cv-0313-BAS-KSC (2023)

The order against Netlatitude, Inc. and Kurt Hannigan reproduced the text of the Telemarketing Sales Rule, including the calling-time restriction. Source: Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (Netlatitude-Hannigan), FTC v. Netlatitude, Case No. 23-cv-0313-BAS-KSC (2023) Its recordkeeping section also required the settling defendants to keep all call detail records for any customer engaged in telemarketing. Source: Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (Netlatitude-Hannigan), FTC v. Netlatitude, Case No. 23-cv-0313-BAS-KSC (2023)

Outcome. The order entered an $8,000,000 civil penalty against the settling defendants. Source: Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (Netlatitude-Hannigan), FTC v. Netlatitude, Case No. 23-cv-0313-BAS-KSC (2023) Once the settling defendants paid $325,000, the remainder of the judgment was suspended, subject to the accuracy of their sworn financial statements. Source: Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (Netlatitude-Hannigan), FTC v. Netlatitude, Case No. 23-cv-0313-BAS-KSC (2023)

Exposure

A violation of a rule issued under the Telemarketing Act, which includes the calling-time restriction, “shall be treated as a violation of a rule under section 57a of this title regarding unfair or deceptive acts or practices.” Source: 15 U.S.C. § 6102(a)(3), (c) (as reproduced in Final Brief of the Federal Trade Commission, Soundboard Ass'n v. FTC, No. 17-5093 (D.C. Cir.)) The monetary terms in orders enforcing the Telemarketing Sales Rule have been substantial. Comcast was ordered to pay a $900,000 civil penalty under Section 5(m)(1)(A) of the FTC Act. Source: United States v. Comcast Corp., No. 2:09-cv-01589-HB (E.D. Pa. Apr. 16, 2009) (Stipulated Judgment and Order for Permanent Injunction) A proposed stipulated order against DIRECTV provided for a $2,310,000 civil penalty on the same statutory basis. Source: Proposed Stipulated Judgment and Order for Permanent Injunction Against DirecTV, Inc. (2009) The Netlatitude order entered an $8,000,000 civil penalty, with all but a $325,000 payment suspended on the strength of the defendants’ financial statements. Source: Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (Netlatitude-Hannigan), FTC v. Netlatitude, Case No. 23-cv-0313-BAS-KSC (2023)

A civil penalty can follow an individual as well as a company. In the Netlatitude order the individual settling defendant agreed that the judgment is a civil penalty owed to the government, is not compensation for actual pecuniary loss, and is therefore not subject to discharge under the Bankruptcy Code. Source: Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (Netlatitude-Hannigan), FTC v. Netlatitude, Case No. 23-cv-0313-BAS-KSC (2023) Exposure also reaches those who help a violator: a person who provides substantial assistance to a telemarketer while knowing, or consciously avoiding knowing, that the telemarketer is violating § 310.4 has violated the rule itself. Source: 16 C.F.R. § 310.3(b)

Enforcement is not limited to the FTC. Any state attorney general authorized by the state to bring an action under the Telemarketing Act, and any private person who brings an action under that Act, must serve written notice of the action on the Commission, if feasible, before filing. Source: 16 C.F.R. § 310.7 The rule also preserves a state official’s ability to proceed in state court under any civil or criminal statute of the state. Source: 16 C.F.R. § 310.7 In the joint FTC and Utah matter against Nudge, LLC and others, the order barred violating any provision of the Telemarketing Sales Rule. Source: Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief as to Defendants Nudge, LLC, et al., FTC and Utah Division of Consumer Protection v. Nudge, LLC, No. 2:19-cv-00867-DBB-DAO (D. Utah) It also entered a $15,000,000 judgment in favor of the Utah Division of Consumer Protection as civil penalties, alongside a separate $15,000,000 judgment in favor of the Commission as monetary relief. Source: Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief as to Defendants Nudge, LLC, et al., FTC and Utah Division of Consumer Protection v. Nudge, LLC, No. 2:19-cv-00867-DBB-DAO (D. Utah) Weak records add a separate problem, because failing to keep each required call record in a complete and accurate manner is itself a violation of the rule. Source: 16 C.F.R. § 310.5(a), (c)

FAQs

1.310.4. 16 C.F.R. § 310.4(b)(1)(iii)(B)(2), (b)(1)(v)(A)
2.310.4. 16 C.F.R. § 310.4(b)(1)(iii)(B)(2), (b)(1)(v)(A)
3.310.4. 16 C.F.R. § 310.4(b)(1)(iii)(B)(2), (b)(1)(v)(A)