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Washington Report
June-July 2002
ICFA Testifies at FTC Hearings
On Telemarketing Sales Rule
by Robert M. Fells, Esq., general counsel
ICFA Vice President of Industry Relations Paul M. Elvig represented the association on June 7 at public hearings held by the Federal Trade Commission concerning the Telemarketing Sales Rule. A total of three days of hearings, June 5-7, were originally scheduled to be held at FTC headquarters on Constitution Avenue in Washington, D.C. However, the location was changed to the grand ballroom at the Marriott Wardman Park Hotel in anticipation of large crowds.
Perhaps the most controversial aspect of the hearings was the national Do-Not-Call Registry the FTC has proposed whereby consumers could prohibit all telemarketers from contacting them by submitting their home phone numbers to a list maintained by the FTC.
Phone calls placed by cemetery and funeral home preneed sellers have been exempt from the TSR since its enactment in 1995 due to the fact that no sale or request for payment is made over the phone and the call is followed by a face-to-face meeting. However, the FTC has proposed several conditions to maintaining the "face-to-face" exemption, including the requirement that such callers must not phone any numbers appearing on the proposed national Do-Not-Call Registry.
At the hearing, the ICFA questioned whether the do-not-call requirement was justified for preneed calls because a total of only two telemarketing complaints involving cemeteries were filed with the FTC over a four-year period, 1997 to 2001. The association also testified that since funeral home and cemetery preneed calls are community- based, requiring these businesses to comply with a national Do-Not-Call Registry would be unduly burdensome and not justified by the record of evidence.
The FTC also proposed that exempt calls be required to comply with prohibitions on threats, intimidation and the use of profanity. The ICFA testified that these prohibitions were reasonable on their face, but urged that certain terms be defined. For example, Elvig pointed out that an acquaintance once told him, "Your business intimidates me." Elvig questioned whether such a statement could be considered a violation of the TSR under a legal definition of the term, "intimidation." Other panelists pointed out that 18 states already have do-not-call lists but permit "face-to-face" exemptions from the requirement.
The Funeral Consumer Alliance, represented by Lisa Carlson, also testified at the FTC hearings, urging that cemeteries and funeral home preneed calls be excluded from the "face-to-face" exemption in the TSR. Carlson offered only anecdotal material to support her organization's position. The National Funeral Directors Association (NFDA) filed comments with the FTC earlier this year that, in effect, sided with the Carlson position to exclude preneed callers from the exemption. However, NFDA did not testify at the hearings.
FTC staff stated that over 42,000 comments on the TSR were filed earlier this year during the comment period. A large number of the comments can be viewed on the Internet at the FTC Web site at www.ftc.gov (follow the prompts to Telemarketing Sales Rule Review). The complete text of the ICFA comments can be downloaded by going to the Government & Legal Affairs page.
Copyright ICFA 2002
Congressman Proposes Private Pilot Program for National Cemeteries |
