FTC's Ban on Certain Payment Types Takes Effect Under Telemarketing Sales Rule

Advertisers, take note: The Federal Trade Commission's ban on certain types of payment under the Telemarketing Sales Rule has now taken effect and the agency has increased the maximum civil penalties for a host of violations of Section 5 of the Federal Trade Commission Act.

Last November the FTC finalized a ban on certain types of payment the agency said were "commonly exploited by con artists and scammers." As of June 23, the new prohibitions are in effect, making it illegal for telemarketers to ask consumers to pay for goods or services using cash-to-cash money transfers, remotely created payment orders, remotely created checks, and cash reload mechanisms. All four payment methods are prohibited by the TSR in both inbound and outbound telemarketing.

To help telemarketers, the Commission published guidance about the changes, which expressed the agency's concerns about the potential for fraud.

"Remotely created payment orders and checks create an unreasonable risk of consumer loss by allowing fraudulent merchants to create unsigned checks that debit a consumer's bank account without authorization," according to the updated Complying with the Telemarketing Sales Rule guidance. "Cash-to-cash money transfers and cash reload mechanisms likewise allow anonymous fraudsters to disappear with money paid by consumers for undelivered goods and services."

In other news, the agency announced that the maximum civil penalties have increased for violations of 16 provisions of Section 5 of the FTC Act and Section 7A(g)(1) of the Clayton Act, topping out at $40,000.

The final amendments to Commission Rule 1.98 adjusted the maximum civil penalty dollar amounts as required by the Federal Civil Penalties Inflation Adjustment Act Improvements of 2015, the FTC said, which directed agencies to implement a "catch-up" inflation adjustment based on a prescribed formula to increase the penalties for a variety of infractions.

For example, violations of final Commission orders issued under Section 5(b) of the FTC Act can cost up to $40,000 per violation (up from $16,000), while the failure to file required reports per Section 10 of the FTC Act runs $525 and the fines under specific statutes range from $433 (for running afoul of the Energy Policy and Conservation Act) to $3,756 (for knowing violations of the Fair Credit Reporting Act).

The new maximum penalty amounts will take effect on August 1, 2016.

To read the FTC's updated TSR guidance, click here.

For a complete list of civil penalty recalculations, click here.

Why it matters: Telemarketers should ensure that they are abiding by the new ban on certain types of payment, which applies to both inbound and outbound telemarketing. And all businesses should be aware of the jump in civil penalties imposed by the FTC, with a fine of up to $40,000 per violation possible for certain violations. The agency did note that the changes impact the maximum civil penalty per violation and the actual figure depends on the fact-specific analysis of each case. When it seeks civil penalties, the agency remains "mindful" of the statutory criteria set forth in the FTC Act, such as degree of culpability, history of prior conduct, ability to pay, and effect on ability to continue to do business, the Commission said, adding that a civil penalty leniency program exists for small businesses that meet certain criteria.



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