24.3 Telephone Enforcement, TSR Coverage and Commercial Email

Statutory Damages for TCPA Violations

The TCPA features a private right of action with statutory damages under 47 U.S.C. § 227(b)(3):

• $500 per call or text for standard violations;
• Treble damages up to $1,500 per call or text for willful or knowing violations.

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Telemarketing Sales Rule (TSR, 16 CFR Part 310)

Promulgated by the FTC and enforced concurrently by the CFPB and state attorneys general, the TSR governs telemarketing sales conduct and payment procedures.

Permissible Calling Hours & Oral Disclosures

• Calling Time Window: Telemarketing calls are strictly prohibited before 8:00 AM or after 9:00 PM local time at the called party's physical location.
• Mandatory Oral Disclosures (§ 310.4(d)): At the immediate outset of a telemarketing call, the caller must clearly, conspicuously, and truthfully disclose:
  1. The identity of the seller;
  2. That the purpose of the call is to sell goods or services; and
  3. The nature of the goods or services offered.

Prohibited Payment Methods in Telemarketing (§ 310.4(a)(9)–(11))

To combat telemarketing fraud, the TSR bans specific payment mechanisms:

• Remotely Created Checks (RCCs): Telemarketers cannot create or deposit demand drafts or RCCs created from consumer checking accounts obtained over the phone.
• Cash Reload Mechanisms: Telemarketers cannot accept payment via prepaid card reload packs (e.g., Green Dot MoneyPak).
• Payment Methods Evading Chargebacks: Prohibits payment methods designed to bypass standard credit card dispute resolution systems.

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CAN-SPAM Act of 2003 (15 U.S.C. § 7701 et seq.)

The Controlling the Assault of Non-Slick Marketing Act (CAN-SPAM) governs commercial electronic mail messages sent to consumers.

Commercial vs. Transactional Emails

• Commercial Email: Any electronic message whose primary purpose is the commercial advertisement or promotion of a product or service. Commercial emails must comply with full CAN-SPAM disclosure and opt-out rules.
• Transactional / Relationship Email: Messages whose primary purpose is to deliver account statements, confirm transactions, notify terms changes, or provide security alerts. Transactional emails are exempt from marketing disclosure and opt-out mandates, provided header information is accurate.

Core Rules for Commercial Electronic Mail

1. Accurate Header Information: The "From," "To," and routing information must accurately identify the sender.
2. Truthful Subject Lines: The subject line cannot mislead the recipient regarding the contents or subject matter of the message.
3. Advertisement identification: Clearly and conspicuously identify a commercial message as an advertisement where required; CAN-SPAM provides an exception to this identification requirement for recipients who gave prior affirmative consent.
4. Valid Postal Address: The message must include a valid physical postal address of the sender.
5. Functional Opt-Out Mechanism: The message must contain a clear and conspicuous electronic opt-out mechanism (such as an unsubscribe link). The link must remain fully operational for at least 30 calendar days following transmission.
6. 10-Business-Day Processing Rule: The sender must process and honor all unsubscribe requests within 10 business days of receipt, and cannot charge a fee or require personal information beyond the recipient's email address to process an opt-out.

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Core Rules Comparison: TCPA vs. TSR vs. CAN-SPAM

Jurisdiction and current consent rules

Banks are outside the FTC’s direct TSR jurisdiction; nonbank vendors making calls on their behalf remain subject to the TSR. The FCC’s TCPA rules separately apply to banks. An automatic telephone dialing system has the statutory random-or-sequential number generator characteristics; calling software is not automatically an ATDS merely because it dials efficiently. Prerecorded or artificial voice calls have their own trigger. Document the called number, technology, purpose, consent and any exemption before applying a rule. FCC revocation rules generally require honoring valid reasonable requests as soon as practicable, within ten business days. The FCC delayed application of the cross-category revocation requirement until January 31, 2027; do not assume that every 2026 opt-out from one category necessarily revokes consent for all unrelated categories.

FTC TSR coverage and exemptions.