communication between a person or entity and a [telephone ]
subscriber with or without an exchange of consideration, on the
basis of an inquiry, application, purchase or transaction by the
subscriber regarding products or services offered by such person or
entity, which relationship has not been previously terminated by
either party.
51
The adoption of such an exemption will honor Congress' judgments that an established business
relationship exemption from a national do not call registry is necessary to protect current
customer relationships and should be worded broadly so as not to foreclose the capacity of
businesses to place calls that build upon, follow up, or renew, within a reasonable period of time,
what had once been an existing customer relationship.
52
The adoption of such exemption will
also enable the FTC to preserve the principle of consumer choice while adhering, at least in this
respect, to Congress' instruction that the Commission refrain from implementing telemarketing
regulations that add burdens to legitimate business activities beyond those imposed by the
TCPA.
II.
THE PROPOSED AMENDED TSR WOULD UNFAIRLY AND
UNCONSTITUTIONALLY DISCRIMINATE AGAINST COMPANIES THAT USE
TELEMARKETING TO MARKET INTERNET ACCESS AND WEB SERVICES TO
BUSINESS CUSTOMERS.
The FTC generally exempts from the scope of the Rule telemarketing calls that are made
from one business to another.
53
The proposed TSR, however, would eliminate the business to
business exemption for telemarketing calls involving the sale of Internet services and Web
51
47 C.F.R. 64.1200(e). California has enacted a similarly broad exemp tion from its registry law for calls placed
by telemarketers on behalf of persons or firms with whom the residential subscriber has formed an established
business relationship defined as a relationship formed by a voluntary, two way communication between a
telephone solicitor and a subscriber with or without an exchange of consideration, on
the basis of an application,
purchase, rental, lease, or transaction if the relationship has not been terminated by the subscriber or the solicitor.
Cal. Bus. & Prof. Code 17592(e)(4).
52
House Report on the TCPA
, H.R. Rep. No. 102 317, at 14 (1991).
53
16 C.F.R. 310.6(g).
20