Opinion 10-1

UN ITED STATES OF AM ERICA
FEDERAL TRADE COMMISSION
W ASH IN GTO N , D .C. 20580
D ivision of M arketing Practices
February 4, 2010
Jean L. Kiddoo
Bingham McCutchen LLP
2020 K Street, N.W.
Washington, DC 20006-1806
Request for Advisory Opinion:
Prerecorded Message to Customers Regarding
Availability of Free Services for a Limited Time Period
Dear Ms. Kiddoo:
You have requested an informal staff opinion that telephone calls which deliver
prerecorded messages to existing customers of your client, RCN, a cable and open video services
provider, do not meet the definition of “telemarketing” in the Telemarketing Sales Rule, 16
C.F.R. § 310.2(cc). The telephone calls at issue deliver prerecorded messages that notify RCN
customers of the existence and availability of a specific programming channel, and the fact that
the channel will be available for free for a certain time period.
RCN provides cable and open video services in Boston, Chicago, Lehigh Valley and
suburban Philadelphia, Pennsylvania, New York City, and Washington, D.C. RCN expanded its
foreign language offerings in 2008, and now offers channels that provide programming in 15
different languages. RCN has used telephone calls delivering prerecorded messages
(“robocalls”) to notify its customers about the existence of programming offerings or changes to
channel line-ups. RCN has found that the use of foreign language speakers to conduct live-calls
to subscribers to inform them of RCN’s offerings is “cost prohibitive” because of the large
number of different language channels offered by RCN and the relatively few international
customers in each language.
RCN would like to place telephone calls delivering prerecorded messages to notify
current subscribers about its expanded foreign-language channels. The messages would notify
the subscribers that a specific foreign-language network that is not available on the subscribers’
current tiers of service is available for viewing temporarily at no additional charge. As an
example, your letter describes the following proposed telephone calls:
[A] robocall in Japanese would be sent to RCN’s Chicago customers to inform
them that the TV Japan network is available on Channel 504 without cost for the
next 30 days. This type of robocall does not provide any information about how
to subscribe to the channel after the 30-day period or the price of the channel, or

Jean L. Kiddoo February 4, 2010
Bingham McCutchen LLP Page 2
Request for Advisory Opinion
in any way “induce them to purchase any goods or services,” but instead simply
informs and educates the existing customer about the current availability of a
programming service and the time period during which the customer may freely
access the channel. The customer is then able to enjoy the free programming
without obligation, payment or any further requirements whatsoever. Information
about how to continue receiving the channel after the free preview ends would not
be provided in the robocall message and would only be available when the
programming is watched by the subscriber.
The staff of the Federal Trade Commission has concluded that the telephone calls
described in your letter are calls made in connection with “telemarketing” within the meaning of
the TSR because the calls are part of a campaign to induce the sale of services to the recipients
of the calls. Consequently, 16 C.F.R. § 310.4(b)(1)(v)(A) prohibits outbound telephone calls to
deliver such messages unless the seller has obtained from the recipient of the call an express
agreement, in writing, that evidences the willingness of the recipient of the call to receive calls
that deliver prerecorded messages by or on behalf of that seller and includes such person’s
telephone number and signature.
The Telemarketing and Consumer Fraud and Abuse Prevention Act defines
“telemarketing,” in relevant part, as “a plan, program, or campaign which is conducted to induce
purchases of goods or services . . . by use of one or more telephones and which involves more
than one interstate telephone call.” 15 U.S.C. § 6106(4). The Commission has adopted a
virtually identical definition in the TSR. Id. § 310.2(cc); Prohibition of Deceptive and Abusive
Telemarketing Acts, Final Rule, 60 Fed. Reg. 43,842, 43,844 (1995). Consequently,
“telemarketing” under the statute and its implementing regulations is not limited to activities in
which a sale or offer for sale is communicated during a telephone call. In rejecting an argument
that “telemarketing” does not include telephone calls designed to setup a meeting at which sales
may take place, the Commission observed:
[T]he definition of “telemarketing” does not require that the purchase be made
during the telephone conversation. The definition simply states that the call be
“conducted to induce the purchase of goods or services.” The inducement could
be made during the telephone call, or it could be in the form of setting up a
subsequent face-to-face meeting at which an additional sales presentation could
take place.

Jean L. Kiddoo February 4, 2010
Bingham McCutchen LLP Page 3
Request for Advisory Opinion
See also 68 Fed. Reg. at 4587 (2003) (“Thus, a sales call using a prerecorded message1
may be ‘telemarketing’ if it is part of a plan, program, or campaign for the purpose of inducing
the purchase of goods or services or inducing a donation to a charitable organization, is
conducted by use of one or more telephones, and involves more than one interstate call.”)
See, e.g., United States v. Voice-Mail Broadcasting Corp., Civ. No. 2:08-cv-005212
(C.D. Cal., filed Jan. 15, 2004) (prerecorded messages promoting retail sales); United States v.
The Broadcast Team, Civ. No. 6:05-cv-01920 (M.D. Fla., filed Dec. 29, 2005) (prerecorded
messages promoting attendance at conferences).
Telemarketing Sales Rule, Final Rule, 68 Fed. Reg. 4579, 4655-56 (2003). Consistent with this1
interpretation of the term “telemarketing,” the Commission has brought enforcement actions
against telemarketers who delivered prerecorded messages that are not designed to make sales
over the telephone, but to induce consumers to purchase goods or services by other means, such
as sales events at retail stores.2
Although the Commission has observed that “telemarketing” does not include
“informational messages,” it has stressed that the TSR does cover messages that combine an
informational message with direct or indirect solicitation. See Telemarketing Sales Rule, Final
Rule Amendments, 73 Fed. Reg. at 51173 (2008); Telemarketing Sales Rule, 71 Fed. Reg. 58725,
n.107 (2006). Examples of messages that provide information but are also part of a campaign to
induce sales include invitations to special retail sales and events, ticket offers for musical events,
and announcements of local promotions. 73 Fed. Reg. at 51,173 n.113.
We conclude that the proposed prerecorded messages announcing temporary access to
RCN channels, followed by subsequent communications concerning how RCN subscribers may
purchase continued access to these channels, are part of a plan, program or campaign to induce
sales and are not purely informational. Therefore, even though details regarding price and how
RCN subscribers can purchase access to the channels described in the messages are conveyed
through the programming, rather than through the prerecorded messages, the telephone calls fall
within the statutory and regulatory language defining “telemarketing.” A person who initiates
such calls is doing so “in connection with telemarketing,” 16 C.F.R. § 310.2(bb), and, therefore,
is a “telemarketer” subject to the restrictions on the delivery of prerecorded messages in 16
C.F.R. § 310.4(b)(1)(v)(A). The TSR also prohibits a seller from causing a telemarketer to
engage in initiating telephone calls to deliver such messages.
As noted above, 16 C.F.R. § 310.4(b)(1)(v)(A) permits telemarketers and sellers to make
outbound telephone calls to deliver prerecorded messages if the seller has obtained from the
recipient of the call an express agreement that evidences the willingness of the recipient to
receive calls that deliver prerecorded messages by or on behalf of a specific seller. Such an
authorization is not valid if the seller requires, directly or indirectly, that the agreement be

Jean L. Kiddoo
Bingham McCutchen LLP
Request for Advisory Opinion
February 4,2010
Page 4
executed as a condition of purchasing any good or service, including services such as those that
RCN provides to subscribers. !d. § 31O.4(b)(I)(v)(A)(ii).
Please be advised that this opinion is based exclusively on the information furnished in
your letter. In addition, please be advised that the views expressed in this letter are those of the
FTC staff. They have not been reviewed, approved, or adopted by the Commission, and they are
not binding upon the Commission. However, they do reflect the opinions of the staff members
charged with enforcement of the TSR. Staff opinions concerning the TSR are routinely posted
on the FTC website at http://www.ftc.govlbcp/telemarketing/staffopinions.shtm.
V~0:A 	.
LOIS Greism!n~
Associate Director
Division of Marketing Practices