DIRECT SALES ASSOCIATION OF NEVADA
A Community Relations Non-Profit Organization
March 21, 1995
Office of the Secretary
FTC, Room 159 600 Pennsylvania Ave., N.W.
Washington, D.C. 20580
Re: Proposed Telemarketing Sales Rule
FTC File No. R411001
This submission is filed on behalf of the Direct Sales Association of
Nevada, an organization representing telemarketing sellers, established
in 1988 and located in Las Vegas, Nevada. (see exhibit A)
The DSA of Nevada's specific objections to the proposed rules are
incorporated into exhibit B. In examining the objections we also request
the FTC consider the following:
Throughout the states, in attempting to pass various regulatory schemes,
ambitious bureaucrats have only succeeded in saddling legitimate
telemarketers with increased costs and paperwork while real crooks
disregard these same statutes. Likewise, the proposed regulations will
only serve as a guideline for those very same illegitimate or unethical
operators to circumvent and invent new ways of noncompliance. (see
Politicians in a hurry to champion consumer rights play into sensational
media hype and have only helped to create an atmosphere where legitimate
telemarketers are unfairly prejudiced. (see exhibit D)
Consumer advocate groups attack telemarketers based not on legal
authority nor on the basis of an individual company's business practices,
but rather their attacks are centered around notions of sympathy and
paternalistic, personal value judgements. (see exhibit K)
"Recovery services" continue to proliferate by fraudulently claiming to
be acting on behalf of law enforcement. The single greatest complaint
factor involving legitimate telemarketers is directly attributable to
these fraudulent "recovery services." (see exhibit E)
Even consumers themselves now routinely make disingenuous claims against
sellers. (see exhibit F)
The cataloging of all consumer claims as a "complaint" is inherently
misleading and unfair to a legitimate telemarketer. (see exhibit G)
The fundamental element that separates this country from all others is
free choice. The rise of state lotteries, gaming, and national
sweepstakes promotions can only be attributed to consumer demand and
acceptance. (see exhibit H)
We find it amazing that a government which finds its citizens competent
enough to vote, competent enough to figure out how to pay their taxes,
and competent enough to participate in the greatest, free enterprise
market on earth, somehow finds those very same citizens to be bewildered
when the telephone rings. our government was not designed to be paternal
in form. As a self-governing people, each citizen is provided so much
liberty as allowable without impairing the equal rights of his fellows.
With the utmost amount of personal liberty given to him, each person is
treated as one of responsible judgement, not as a child, and left free to
work out his destiny as his impulse, education, training, judgement and
environment direct him. (see exhibit I)
The question before this rulemaking body is what is the most effective
and efficient manner of protecting the consumer from unscrupulous
operators? The FTC has proposed a myriad of regulations which, in our
opinion, will only serve to drive legitimate activity - activity which
has been successful in the marketplace for years - out of business. (see
Even if the FTC can see nothing 'of any possible value to society in the
telemarketer's sales programs, they are as much entitled to the
protection of free speech as the best of music or literature. When the
marketplace tires of them they will make their exit. Consumer protection
advocates cannot hurry them off by characterizing the "give away"
programs as fraudulent, if, as a matter of law, they are not. It is the
consumer, and not the FTC, who should be the ultimate judge of the
The simplest solution that we can think of would be for the telemarketing
seller to be required to include with the delivered product or service an
unconditional moneyback guarantee. The customer then has an absolute
right, for a specified period of time, to return the goods or services
for a full refund. An unconditional money-back guarantee holds the
telemarketer accountable to the marketplace ensuring that the seller
accurately accesses the needs and desires of the customer. An
unconditional money-back guarantee minimizes bureaucracy and establishes
a definable standard for all. Perhaps most importantly, an unconditional
moneyback guarantee could solve the constitutional problems and
burdensome requirements found at Section 310.4 (a) (7), Section 310.4 (b)
(1), Section 310.4 (d) (3) and (4), and Section 310.4 (e) (1).
Section 310.3 (a)
This proposed rule is too harsh on the seller. Conceivably, a seller
could face a $10,000.00 fine for a single violation by a rogue or
Common Sense - Legitimate telemarketers already know the importance of
salespeople properly representing their offers and structure appropriate
training and supervision.
Alternative - Fine only repeat violators.
Section 310.4 (d) (3) (ii) and 310.4 (d) (4)
Advertisers have the right to create value - value as defined by the
The FTC's assumption is that the disclosure of a verifiable retail value
should be a material consideration in the consumer's decision to
purchase. The FTC's assumption is fatally flawed. If consumers truly
cared about verifiable retail values all they need do is ask.
Furthermore, in an incentive gift promotion, a premium is something given
to the consumer ' for free. The promoter should have the option of
giving something free to whomever they choose, in whatever situation they
choose, without having to disclose the verifiable retail value.
Common Sense - Consumers who are truly interested in the verifiable
retail value of an item need only ask. Telemarketers who do not tailor
their sales programs to the expectations of the marketplace will quickly
Problems - Every gift offered over the telephone, in every enterprise in
the United States, barring the specific exempted situations, will be
affected by this rule. Direct mail marketers do not disclose the
verifiable retail values of premiums and telemarketers should not be
singled out for censorship.
Requiring verifiable retail value disclosures will lead to an entire new
industry dedicated to supplying premium and prize items with grossly
inaccurate verifiable retail values which will only increase customer
Some telemarketers offer the consumer a premium selection from among as
many as forty different items. oral disclosure of the verifiable retail
value of all the possible items is simply not practical.
Alternatives - Require telemarketers to offer customers a money-back
guarantee. If a telemarketer declares a value when referring to a
premium (or prize) require the telemarketer to disclose a verifiable
retail value (as defined in these proposed rules).
Section 310.4 (a) (7)
If a seller complies with the provision to distribute prizes once every
18 months then this rule would prohibit soliciting a previous purchaser
until the end of the 18 month period. Some telemarketers offer consumers
a choice of premiums or prizes and on occasion consumers do not exercise
their selection option. Some customers are simply interested in only the
product or service offered. Some telemarketers offer "S and H green
stamp" style promotions where cumulative purchases entitle consumers to
different levels of premium selections.
Common Sense - If consumers were dissatisfied with their first order they
are not going to purchase again anyway. This rule will just create a
situation where more companies trade names. Many-consumers are simply
not interested in premiums or prizes in the same way that they are not
interested in coupons, rebates, etc. Their sole interest is to avail
themselves of the product or service offered.
Alternative - Unconditional money-back guarantee would allow
market forces to correct unscrupulous telemarketers,
Section 310.4 (e) (1)
This rule would require a seller to first obtain a written
acknowledgement concerning a chance promotion from a prospect before
requesting or accepting payment. This would necessitate mailing the
acknowledgement to all prospects before soliciting them. Can you imagine
the great burden of costs in mailing, tracking, and follow up just to get
the signed written disclosure back? Furthermore, even if a person was
predisposed to the sales promotion, great numbers of those would fall out
simply because of inattention or inconvenience of mailing the disclosure
back to the seller. From the customer's perspective telemarketing
provides a convenient purchasing option. The written acknowledgement
rule would negatively impact the customer by delaying a desired product
If consumers want to know the rules of a promotion before purchasing all
they need to do is ask.
This is censorship based on who the speaker is and not what the speaker
is saying. Other marketers advertise chance promotions via radio and
television, disclose far less than is required by these rules, and do not
have to obtain written acknowledgements.
Common Sense Impractical. Information needed by the consumer is
required to be disclosed orally throughout the many other rules of this
Alternative An unconditional money-back guarantee would eliminate the
need for this rule. For consumers who ask, require telemarketers to
provide written disclosures.
Section 310.3 (a) (1) (i)
This section would adversely affect travel programs that are to be used
by the consumer in the future when the cost of the travel booking is
Common Sense Not practical as this rule would unnecessarily hinder a
highly desirable incentive from being used in the marketplace.
Alternative Require disclosure of costs only if knowable and only if the
Section 310.4 (a) (2)
This rule is a restraint of trade. Also, the FTC would be unnecessarily
restricting the courier's business. Furthermore, fraudulent
telemarketers would simply ignore
this rule or circumvent the rule by sending people out a self-addressed,
Additionally, this particular restriction would make it more difficult
for a legitimate telemarketer to operate his/her business effectively,
efficiently, and profitably.
Legitimate telemarketers find their customers value the added security
that bonded couriers provide. The customer has a receipt for his/her
package, a toll-free customer service number and tracking number to
locate a package and/or confirm delivery, and, in many cases, insurance
for a package.
Common Sense Easy rule for illegal operators to circumvent. Consumers
and sellers should be free to contract the tendering of payment anyway
they see fit.
Alternative Telemarketers whose customers schedule their own pick ups
should be exempt from this rule.
Section 310.3 (a) (4)
All contracts other than real estate in this country are enforceable
whether they are written or oral. If a customer gives you oral
authorization to electronically withdraw a certain amount of money from
his or her checking account that is in fact an oral contract. If an
unscrupulous telemarketer withdraws more than the authorized amount from
the customer's checking account that is a criminal act, subject to
Any new business, whether it be a telemarketer or a retail business, has
a relatively difficult time obtaining credit card merchant accounts from
banks. To punish or to discriminate against a legitimate telemarketer
because of time in business or lack of financial ability is unfair.
This particular restriction would make it more difficult for a legitimate
telemarketer to operate his/her business effectively, efficiently, and
profitably. Legitimate telemarketers find that their customers enjoy the
convenience of check drafts. They do not have to write a check, obtain a
money order or cashier's check from the bank, or arrange for delivery of
their check to the company. Using check drafts is an efficient way for
both the customer and the company to conduct business. Legitimate
telemarketers already institute a thorough system of solicitation and
verification to insure that an unauthorized order is not processed and a
customer's account is not debited for an order he/she does not want.
After a sales representative has received an order from a customer, a
verification representative calls the customer back and, following a
prepared verification presentation, confirms all the material terms of
the transaction with the customer. This system enables the company to
discern whether a customer is confused about his/her transaction and, if
so, cancel the sale. Legitimate telemarketers have instituted control
systems which prevent unauthorized orders from being processed.
Requiring a legitimate telemarketer to interrupt its efficient and cost-
effective processing system to await a signed authorization is
unnecessary - the company has already received the customer's verbal
authorization during the verification call which is, in many instances,
tape recorded for future reference.
Common Sense If consumers didn't authorize check debiting or electronic
transfers they would not give out their bank account numbers to
Alternative An unconditional money-back guarantee would allow market
forces to correct unscrupulous telemarketers. Require record keeping of
Section 310.4 (a) (4)
Exempting attorneys and private investigators will only lead to the
recovery services typing up simpleton agreements that unscrupulous
attorneys and p.i.s would have no trouble getting the victim to sign.
"Mail order" p.i.s would appear overnight.
Common Sense This would encourage victims to use attorneys and p.i.s
further depleting their finances and giving them a false sense of
Alternative Attorneys and private investigators should not be exempt.
Section 310.4 (b) (1)
This rule is a restraint of trade and violates the first amendment.
A telemarketer who purchases thousands of names each week would be
economically burdened, if it were even possible, to wash the list of
This rule would actually encourage the trading of names within the
Legitimate telemarketers are currently complying with the FCC's no call
Common Sense Legitimate telemarketers would not risk offending a
prospective customer by repeatedly bothering them. Crooks will never
follow this rule.
Alternative Eliminate (i), keep (ii)
Section 310.3 (b) (1) and Section 310.3 (b) (2)
This is unconstitutional, a violation of due process. Under the due
process clause government regulation must be sufficiently clear so that
ordinary people can understand what conduct is being prohibited and so
that the regulation does not encourage arbitrary or discriminatory
Common Sense - This is a blatant attempt to scare suppliers away from
doing business with telemarketers.
Section 310.4 (c)
Many telemarketing firms, because of time zone differences, must make
telephone calls before 8:00 a.m. and/or after 9:00 p.m. Additionally,
many telemarketing firms operate on such thin profit margins, with the
phone lines being such a major expense, that their only competitive edge
is dependent on being able to call during off-peak billing hours.
The court has also stated that if there are numerous and obvious less-
burdensome alternatives to the restriction on commercial speech, that is
certainly a relevant consideration in determining whether the "fit"
between ends and means is reasonable. Wouldn't a reasonable "fit",
regarding bothersome phone calls, simply be for the telemarketer to
comply with the FCC's no call rule?
Common Sense - Legitimate telemarketers would not risk offending a
prospective customer by repeatedly bothering them. Crooks will never
follow this rule. All the consumer has to do with an unwanted phone call
is hang up the phone. With today's busy lifestyles and so many people
working varied hours often the only time to reach a customer is between
7:00 and 8:00 a.m.
Alternative - 7a.m. - 10 p.m.
This provision will lead to conflicting and selective interpretations of
these rules. The FTC will be burdened in cooperating with State Attorney
Generals filing actions for political and/or media visibility.
Common Sense The states already have their own deceptive trade practice
acts to deal with fraudulent telemarketers.
Alternative Require states to conduct investigations that are
procedurally objective and allow the telemarketer their constitutional
right of due process. (see exhibit G)
Exemptions should be provided for companies offering unconditional money-
back guarantees, companies in business for a long period of time (5 - 10
years) under the same name, and an exemption should be provided for calls
to previous customers. Misrepresentation or excessive puffery is
unlikely during solicitations to former customers because of the
Companies that have been in business for any length of time simply cannot
change their method of operation in 30 days. Businesses have contracts
and commitments made far into the future to which they are legally
obligated. This 30 day requirement would also disrupt existing customer
relationships. 180 - 360 days is more reasonable.
In regard to Section F, the FTC findings are incorrect that the proposed
regulations will not have a significant impact on a substantial number of
small entities. The FTC should be required to provide a regulatory
Many of the restrictions in the proposed rules could be challenged on the
grounds that they are unconstitutional under the First Amendment and do
not directly advance governmental interests in stopping telemarketing
fraud. It will be argued that these rules, practically applied, operate
to completely ban telemarketers from engaging in protected commercial
speech similar to the mind-set evidenced by exhibit "J." Under the test
established by the Supreme Court in Central Gas and Electric Corp. vs.
Public Serv. Comm'n, telemarketers could challenge the FTC rules by
arguing the rules do not "directly advance" the governmental goal of
preventing fraud. Much like the state's laws that have been passed in
recent years, the FTC rules will have little effect in halting fraudulent
telemarketing while seriously burdening the legitimate industry.
Therefore, the government's goals have not been directly advanced.
Alternatively, it can be argued, also under Central Hudson, that the
restrictions are more extensive than necessary to serve the government's
goals. The rules are overbroad and fail to meet the Central Hudson and
City of Cincinnati vs. Discovery Network, Inc., test because truthful
and nonmisleading expression will be snared along with fraudulent or
deceptive commercial speech. The FTC will not be able to prove that the
restrictions are crafted narrowly enough to serve a substantial state
Moreover, the Supreme Court has stated recently in Edenfield vs. Fame
that direct solicitation "may have considerable value" because such
"solicitation allows direct and spontaneous communication between buyer
and seller." "The commercial marketplace, like other spheres of our
social and cultural life, provides a forum where ideas and information
flourish. Some of the ideas and information are vital, some of slight
worth. But the general rule is that the speaker and the audience, not the
government, assess the value of the information presented." The court-
also-indicated that direct commercial communications are less suspect
because the consumer has the chance to ask questions and raise problems
with the solicitor.
It is in a climate of distrust and confusion that legitimate
telemarketers have constantly been forced to justify their activities to
law enforcement and regulatory agencies. Unfortunately, the effort to
create or develop understanding has all too often fallen on deaf ears.
Convinced that the majority of entrepreneurial telemarketing companies
are "illegitimate", it has often been difficult if not impossible for
some law enforcement personnel to even begin to understand that an
entrepreneurial telemarketing company can constitute a legitimate
telemarketing enterprise. The result is a classic case of guilt by
association. Entrepreneurial telemarketing companies are all
stereotypically categorized as "illegitimate", regardless of the merits
of their individual promotions and regardless of whether or not the
promotions used by the company are in fact "legal" or "illegal".
Despite objective evidence of customer satisfaction, certain law
enforcement personnel continue to insist that consumers cannot possibly
be satisfied with their purchases. Unfortunately, such law enforcement
personnel routinely base their conclusions not on empirical evidence or
on any reliable evidence, but rather on their own personal value
They argue that the merchandise sold by telemarketers is overpriced and
that few consumers would knowingly pay for such overpriced merchandise.
Consequently, they conclude that such consumers must have somehow been
defrauded. The first question that must be asked with regard to the
issue of price, is when is a price too high? Is it too high when a
consumer pays $3.00 for a $0.19 box of popcorn at a movie theater? Is it
too high when a replacement tire at an isolated service station costs
$150.00 for a $30.00 tire? Is it too high when a credit card company
charges 18% interest? When exactly is a price too high?
More importantly, who is going to make that decision and how is that
decision going to be applied evenly to all merchants? Is it the proper
role of law enforcement to attempt to regulate the cost of goods sold?
What about the courts? Should judges decide how much one party can or
should charge another party for non-essential goods or services? The law
of unconscionable pricing has answered both of these questions with a
The fact is that people have different tastes, needs, desires and
expectations. Simply because certain law enforcement officials may not
see the value in purchasing 500 custom engraved pens for $499.00, does
not in any way establish that other individuals with different needs,
desires, and expectations, would feel the same way. one person may have a
use for such merchandise while another may not. Some people may value
the money-back guarantee or the home delivery while others might have no
interest in these benefits. Still others may be inspired to purchase due
to the promotional offering surrounding the sale, just as purchasers from
Publisher's Clearing House are inspired to do so. The point is, these
issues are a matter of personal preference. They are a matter of "free
The origin of "free choice" and the sanctity of "freedom to contract"
dates back to English common law. This principal was reaffirmed by the
United States Supreme Court when it stated:
The public is entitled to get what it chooses, though the choice may be
dictated by caprice or by fashion or perhaps by ignorance. FTC v. Algoma
Lumber Co., 291 U.S. 67, 78 (1934).
The reason for this widespread recognition of "free choice" and "freedom
to contract" is due in part to the fact that this country could not have
a functional and dynamic system of commerce if the parties could not rely
on the courts to enforce their agreements. A second and perhaps even
more important reason is the value that we all place on our ability to
As David L. Shapiro, William Nelson Cromwell Professor of law, Harvard
Law School, noted:
The idea that A, without consulting B, may decide what is in B's best
interest, and may even coerce B into compliance with that decision, was
described only recently as an almost "un-American" rationale for any type
of government activity. Court Legislatures and Paternalism, 74 Va. L.
Rev. 519 (1988).
Professor Shapiro went on to state:
Indeed, it might be possible, on grounds of "incapacity" and "real will",
to argue that an entire class, or an entire society, is the victim of
false consciousness and must be helped in spite of itself. The threshold
doctrines of justiciability, and especially of standing, reflect the
notion that if people are unwilling to press their own grievances, others
should generally not be allowed to do it for them. Id., at 520. See
also, C. Wright, The Law of Federal Courts 13, at 71-73 (4th ed. 1983).
Professor Shapiro concluded by saying:
: ' ' the very ability to choose - which necessarily implies the ability
to make poor choices by some objective standard - is critical to the
growth of our diverse intellectual, emotional, and volitional capacities.
Indeed, given the range of possible choices and preferences, an
individual is likely to have a better idea than anyone else of how a
particular choice fits his circumstances and goals. It has never been
shown that, as a general matter, A can do a better job of choosing for B
than B can do for himself, especially when A is a state agency or
official that has limited knowledge of B's life plans, or when A's
actions relate to a group of B's sharing only one or a few
characteristics. . . Id, at 546.
Another equally important question is, who requires the special
assistance of the government in determining what they should buy? Do the
poor, the uneducated or the unemployed need this special assistance?
What about members of historically disadvantaged racial or ethnic groups?
Perhaps women or the elderly need this special assistance. Paternalism
involves treating all of these people as less than competent. The perils
of this course are both obvious and great.
Does the fact that someone is poor or uneducated mean that they do not
know their own self interest? Do ethnic and racial minorities need
special assistance from the state in deciding what to buy and what not to
buy? More importantly, why is it that a state, with its limited
knowledge of these people, their lives, their hopes and their plans, in a
better position to decide what is good for them than they are themselves?
Clearly, it is difficult if not impossible to assert that the people who
fall into any or all of these classes are not in general competent. How
then can paternalistic efforts to make decisions for these people, or to
relieve these people of their contractual obligations be justified? If
these people are unwilling to press their own grievances, isn't Professor
Shapiro correct when he states that "others should not be allowed to do
it for them"?
More importantly, is it truly in the long term interests of these groups
that they be relieved from their contractual obligations? What impact
might this course of conduct have on the ability of these groups to
obtain necessary goods or services in the future? What happens when
sellers become less willing to sell to these groups? Will treating these
people as less than competent ultimately threaten their ability to gain
access to certain essential goods and services? The dangers seem
Another concern raised by law enforcement and regulatory agencies is that
telemarketing companies "prey on the elderly". Please understand that
legitimate telemarketers do not "prey on the elderly". In fact, just the
opposite is true. Legitimate telemarketers avoid people like this
whenever possible. Purchasers, whether elderly or unsophisticated or
compulsive, who are unwilling or unable to exercise good judgment or self
restraint, create law enforcement and regulatory problems not only for
telemarketing companies but for all retailers. Legitimate telemarketers
neither want nor need to prey on, or profit from, these individuals.
For years the DSA of Nevada has been asking law enforcement and
regulatory personnel to consider all of the evidence prior to arriving at
any conclusions, to recognize that there are two sides to every dispute
and to resist imposing their personal value judgments on private
contracting parties. The DSA has repeatedly made the details of its
member's promotions available to state and federal law enforcement
personnel. In addition, the DSA's members have specifically and
repeatedly invited such personnel, to provide any legal authority which
would support the position that the promotion is deceptive, misleading
and/or in any way illegal. Despite repeated requests, no law enforcement
officer or agency has ever provided any case law or statutory authority
which establishes the promotions as inherently deceptive, misleading
Instead, such officials have relied on their personal value judgments,
and/or the biased and often hearsay testimony of financially interested
parties to make accusations that are consistently void of any legal
and/or empirical support.
When legitimate telemarketers attempt to question and/or raise legitimate
objections and/or defenses to these accusations, the typical responses
have been for law enforcement personnel to take the offensive, willing to
proceed with litigation in the absence of objective evidence - coercing
the telemarketer into submission. In effect, creating law by consent
Why do certain law enforcement personnel continue to act as modern day
vigilantes? One explanation is that certain law enforcement personnel,
based on their own personal value judgments, believe that consumers
should not be spending significant amounts of money on non-essential
merchandise. In addition, such law enforcement personnel may honestly
believe that many of these consumers have actually been defrauded by
illegitimate telemarketing companies and feel sympathetic toward these
individuals. Finally, due to excessive work loads, media hype and
political pressure, and the fact that most illegitimate telemarketing
companies quickly disappear, there is often the perception that whatever
action is going to be taken needs to be taken rapidly.
Unfortunately, these factors combine to create a "shoot first and ask
questions later" mentality. All too often, civil investigative demands
are issued and/or complaints are filed without proper investigation and
without reflection. An overriding concern for consumers who are believed
to be victims of some telemarketers, results in the aggressive
prosecution of virtually all telemarketers. Apparently, the ends are
thought to justify the means.
What concerns legitimate telemarketers is that such actions are rarely,
if ever, based on a known or established violation of law. Rather they
are based, for the most part, on guilt by association or on what has
popularly become known as "psychofacts" (see, The Triumph of the Psycho-
Fact", Newsweek, May 9, 1994, pg. 73, exhibit "F"). Tragically, the
result of such an approach toward consumer advocacy is that agencies and
officers who's sworn duty it is to uphold the law, routinely demonstrate
an utter disrespect for its most fundamental guarantees.
The law requires telemarketers to sell truthfully. It does not require
them to sell that which state agencies and/or state officers, based
solely on their own personal value judgments, consider to be
Despite repeated opportunities to do so, the vast majority of legitimate
telemarketer's customers voice little if any dissatisfaction with their
purchases yet government officials continue to press forward under the
pretext of widespread consumer dissatisfaction. Why? The reason seems
Government officials, based on their own personal value judgments, object
to the bargains being made. They disagree with the choices being made by
consumers and their private sense of values, along with political,
bureaucratic and media pressure,, compels them to intervene. This is
true despite the fact that no violation of law has been found to exist.
What these governmental officials fail and/or refuse to understand, is
that we live in a society of laws. A society in which the personal value
judgments of those who are sworn to uphold the law, cannot and should not
be controlling. Either the promotions administered by telemarketers are
illegal, in which case the telemarketer's promotions should be
discontinued, or the promotions are legal, in which case telemarketers
should be allowed to proceed in a free market guided only by the rule of
law and their own sense of values.
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