FEDERAL TELEMARKETING AND OUTBOUND CALLING COMPLIANCE GUIDE. October 2013

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1 FEDERAL TELEMARKETING AND OUTBOUND CALLING COMPLIANCE GUIDE October 2013

2 TABLE OF CONTENTS I. INTRODUCTION... 3 II. TELEPHONE CONSUMER PROTECTION ACT REQUIREMENTS... 4 III. TELEMARKETING SALES RULE REQUIREMENTS... 8 IV. REFERENCE CHART: FEDERAL AUTODIALED AND PRERECORDED CALL CONSENT RESTRICTIONS V. TEXT OF THE TELEPHONE CONSUMER PROTECTION ACT AND IMPLEMENTING REGULATIONS VI. TEXT OF THE TELEMARKETING SALES RULE

3 I. INTRODUCTION Companies are required to comply with an array of federal and state laws and regulations that govern telemarketing and other outbound communications. For example, the Federal Communications Commission ( FCC ) implements the Telephone Consumer Protection Act ( TCPA ) and the Federal Trade Commission ( FTC ) enforces the Telemarketing Sales Rule ( TSR ). Both the TCPA and the TSR authorize enforcement by government regulators and private rights of action (including class actions), and there are substantial penalties for noncompliance. Vocalcom offers consolidated solutions to manage these myriad requirements successfully. Specifically, Vocalcom offers Contact Center Solutions (Contact Center Software, Cloud Contact Center Software, Virtual Call Center Software, Call Center CTI for Salesforce, and Call Center Solution for Avaya); Digital Customer Service (Web Customer Service, Mobile Customer Care, Social Customer Care, and Retail Customer Experience); and Dialers & Call Recording (Predictive Dialer Software, Cloud-Based Call Recording and #1 Hosted Dialer in Salesforce). Vocalcom s solutions also help companies comply with the latest revisions to the FCC s TCPA rules, which include: 1. Parties must obtain prior express written consent for autodialed or prerecorded telemarketing calls to wireless telephone numbers, and for prerecorded telemarketing calls to residential telephone numbers (subject to certain exemptions). Previously, such calls were permissible with prior express written or oral consent. 2. On prerecorded or abandoned telemarketing calls, parties must provide an interactive mechanism allowing a called party can use to opt out of future calls. If a caller leaves a voic , the voic must include a toll-free number that the called party can call to opt out. Previously, telemarketers only needed to include a telephone number that consumers could call to make an entity-specific Do Not Call request. 3. The permissible rate of abandoned calls is now calculated over the course of a calling campaign or 30 days, whichever is shorter. Previously, the FCC had measured abandoned calls only over 30 days, with no per campaign metric. 4. Prerecorded calls to residential lines that deliver a health-care message made by a covered entity or its business association as defined by the HIPAA Privacy Rule (45 C.F.R ) are now exempt from the prior express consent requirement. These requirements are described in additional detail in this Compliance Guide. This Compliance Guide has been developed to assist you in your TCPA and TSR compliance efforts. The information contained herein is not intended to provide legal advice and should not be relied on in lieu of a consultation with an attorney. In addition, although this Compliance Guide is focused on TCPA and TSR requirements, state laws may also apply. 3

4 II. TELEPHONE CONSUMER PROTECTION ACT ( TCPA ) REQUIREMENTS National Do Not Call Registry Entity-specific Do Not Call Registry 2 Telemarketers are prohibited from calling numbers on the National Do Not Call Registry unless, inter alia, the caller has: (1) an established business relationship with the telephone subscriber; 1 or (2) prior express invitation or permission from the subscriber. Telemarketers must honor National Do Not Call Registry registrations indefinitely they do not expire. Telemarketers must cease calling if the recipient asks to be placed on the entity s Do Not Call list. The entity must maintain a list of recipients who have made such requests and honor these requests within 30 days. Telemarketers must honor entity-specific Do Not Call requests for 5 years. Telemarketers must also have a written policy for maintaining an entity-specific Do Not Call list and train telemarketing personnel on the use of the list. Entity-specific Do Not Call requests do not apply to an entity s affiliates unless the consumer reasonably would expect them to be included given the identification of the caller and the product being advertised. 3 Do Not Call Safe Harbor A telemarketer will not be held liable for violating the Do Not Call rules if: 1. The violation was in error; 2. It has implemented written procedures for Do Not Call compliance; 3. It has trained its personnel in the compliance procedures; 4. It maintains an entity-specific Do Not Call registry; 5. It scrubs its calling lists against the National Do Not Call Registry no more than 31 days prior to any call and maintains records of this process; and 6. It purchases access to the National Do Not Call Registry and does not improperly share such expenses with other telemarketers. 1 An established business relationship is defined as a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber's purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber's inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party. 47 C.F.R (f)(5). 2 These rules do not apply to tax-exempt non-profit organizations C.F.R (d)(5). 4

5 Informational disclosures Telemarketers making live calls must state at the beginning of every call: 1. The name of the caller; 2. The name of the company on whose behalf the call is being made; and 3. A telephone number or address at which that company can be contacted. All entities placing artificial or prerecorded voice calls must: 1. State at the beginning of each call, the name of the company responsible for initiating the call. 2. State during or after the message, the telephone number of the company responsible for initiating the call. This telephone number must allow individuals to make Do Not Call requests during regular business hours Provide an interactive opt-out mechanism during the call, which, when used, automatically records the recipient s number to the seller s Do Not Call list and terminates the call. If the message is left as a voic or on an answering machine, the telemarketer must provide a tollfree number that enables the recipient to connect directly to the opt-out mechanism. Restrictions on the use of autodialed or prerecorded messages to call wireless telephone numbers and certain other numbers Absent an emergency, parties must obtain prior express consent to place autodialed or prerecorded voice calls or text messages to: 1. A wireless telephone number 2. Any emergency telephone line (e.g., 911) 3. A patient or guest room of a health care facility (e.g., hospital or elderly home) Prior express written consent is required to place telemarketing calls to these telephone numbers. 5 Prior express written consent requires affirmative written consent by consumers (e.g., can include electronic consents that are consistent with E-SIGN), a signature, and specific disclosures. In addition, the consumer s consent cannot be a condition of purchasing any goods or services. 4 This telephone number may not be a 900 number or any other number that imposes charges beyond local or long distance charges. 5 Prior express consent, not prior express written consent, is required for autodialed or prerecorded voice message calls made by or on behalf of a tax-exempt non-profit or for calls that deliver a health care message made by a covered entity or its business association as those terms are defined by the HIPAA Privacy Rule, 45 C.F.R

6 Engaging multiple lines Use of artificial or prerecorded voice messages to call residential lines Abandoned call rules 6 Parties may not use an autodialer in such a way that two or more telephone lines of a multi-line business are engaged simultaneously. Parties must have prior express written consent to call residential lines using an artificial or prerecorded voice message unless the call: 1. Is made for emergency purposes; 2. Is not made for a commercial purpose; 3. Is made for a commercial purpose but does not constitute telemarketing or include an advertisement; 4. Is made by or on behalf of a tax-exempt organization; or 5. Delivers a health-care message made by a covered entity or its business association as those terms are defined by the HIPAA Privacy Rule, 45 C.F.R Entities placing autodialed calls must abandon less than 3% of the calls per day per calling campaign or 30 days (whichever is shorter). A call is abandoned if it is not connected to a live operator within 2 seconds of the recipient s greeting. For abandoned calls, the telemarketer must play a prerecorded message stating only the name of the entity on whose behalf the call was made, a telephone number for such entity that allows the recipient to make a Do Not Call request during regular business hours during the duration of the telemarketing campaign, 7 and that the call was made for telemarketing purposes. In addition, the telemarketer must provide an interactive opt-out mechanism during the call, which, when used, automatically records the recipient s number to the seller s Do Not Call list and terminates the call. The seller or telemarketer must maintain records demonstrating their compliance with these rules. Time-of-day Restrictions Ring requirement Telemarketing calls are allowed between 8:00 a.m. and 9:00 p.m. every day (recipient s local time), unless the recipient has given prior consent for a different time. An unanswered telemarketing call must not disconnect for at least 4 rings or 15 seconds. 6 Abandoned call rules do not apply to calls made by or on behalf of tax-exempt non-profit organizations. 7 This telephone number may not be a 900 number or any other number that imposes charges beyond local or long distance charges. 6

7 Release requirement Caller ID Penalties State regulations Autodialers must release the call recipient s line within 5 seconds after the end of the call. Telemarketers must transmit caller ID information. The TCPA provides for a private right of action (including class actions). In addition, TCPA actions may be brought by the state attorneys general. The FCC can also enforce its TCPA rules. The TCPA generally does not preempt state laws. 7

8 III. Telemarketing Sales Rule ( TSR ) REQUIREMENTS Unlike the TCPA, the TSR applies only to telemarketing calls and does not apply to banks, federal credit unions, savings and loans institutions, telecommunications common carriers, airlines, and business subject to the Packers and Stockyards Act of Prerecorded messages Telemarketers may not place any outbound telephone calls that deliver a prerecorded message without obtaining prior express written consent from the recipient (except as permitted for the call abandonment safe harbor, described below). 8 In addition, telemarketers utilizing prerecorded messages must: 1. Not disconnect an unanswered call for at least 15 seconds or 4 rings; 2. Within two seconds of the recipient s completed greeting, play the prerecorded message with the required disclosures described below; and 3. Include an interactive opt-out mechanism available for the duration of the call, which, when used, automatically records the recipient s number to the seller s entityspecific Do Not Call list and terminates the call. If a message is left on voic or an answering machine, the telemarketer must provide a toll-free number that enables the recipient to connect directly to the opt-out mechanism and is available at any time during the telemarketing campaign. Calls that comply with these requirements shall not be considered abandoned calls. Further, these requirements shall not apply to prerecorded health-care messages made by a covered entity or its business association as those terms are defined by the HIPAA Privacy Rule, 45 C.F.R Charitable organizations The TSR s definition of telemarketing includes calls made to induce charitable contributions. 8 Such consent must not have been a condition of purchasing any goods or services, must evidence the willingness of the recipient to receive calls, must include such person s telephone number and signature, and must have been obtained after a clear and conspicuous disclosure of the purpose of the consent. 8

9 Required disclosures Telemarketers may not induce the purchase of any good or service without promptly, truthfully, and conspicuously disclosing: 1. The identity of the seller; 2. That the purpose of the call is to sell goods or services; 3. The nature of the goods or services; and 4. That no purchase or payment is needed to win a prize promotion. Telemarketers may not induce a charitable contribution without promptly, truthfully, and conspicuously disclosing: 1. The identity of the charitable organization on whose behalf the request is being made; and 2. That the purpose of the call is to solicit a charitable contribution. Disclosures prior to sale Abandoned calls and abandoned call safe harbor Before a call recipient agrees to pay for a purchase, the telemarketer must disclose: 1. The total cost of the goods; 2. All material conditions on the offer; 3. The unavailability of refunds, if applicable; 4. All material terms and conditions of any negative option features; and 5. Certain other information specific to particular offers, such as prize promotions and debt relief. 9 Telemarketers may not abandon any call. Provided, however, that telemarketers are not be liable for a violation of the TSR s abandoned call rules if they: 1. Employ technology that ensures an abandonment rate of no more than 3% over the duration of a calling campaign or 30 days (whichever is shorter); 2. Do not disconnect an unanswered call for at least 15 seconds or 4 rings; and 3. When a call is abandoned, play a prerecorded message that states the name of and telephone number of the seller on whose behalf the call was placed; and 4. Maintain records sufficient to establish their compliance with these rules. A call is abandoned if the telemarketer does not connect to a sales representative within 2 seconds of the person s completed greeting. 9 For a complete description of the applicable disclosures, see 16 C.F.R (a)(1). 9

10 Do Not Call lists Do Not Call safe harbor Use of Do Not Call lists Telemarketers may not: 1. Interfere with a person s right to be placed on the Do Not Call Registry; 2. Call any individual on the entity s specific Do Not Call List; or 3. Call any individual on the National Do Not Call Registry without prior express written consent or an established business relationship. 10 Telemarketers are not be liable for a violation of the TSR s Do Not Call rules provided that as a part of their routine business practice they: 1. Implement and enforce a written Do Not Call procedures; 2. Train their personnel in these procedures; 3. Maintain an entity-specific Do Not Call list; 4. Scrub their calling lists against the National Do Not Call Registry no more than every 31 days before any call and maintain records of this process; 5. Purchase access to the National Do Not Call Registry and does not improperly share such expenses with other telemarketers; and 6. Make violating calls only in error. No entity may sell, rent, lease, purchase, or use the National Do Not Call Registry or any entity-specific Do Not Call list for any other purpose but compliance with Do Not Call obligations. 10 Solicitations to induce charitable contributions are exempt from this requirement. See 16 C.F.R (a). 10

11 Prohibited conduct Submitting payments Telemarketers may not: 1. Use threats, intimidation, or obscene language; 2. Request or receive payment to improve a credit rating until such improvements have been achieved and the timeframe for achieving them has expired; 3. Request or receive payment for services to recover payments made in prior telemarketing transaction until 7 days after the money has been returned; 4. Request or receive payment in advance of obtaining a loan if the telemarketer has represented a high likelihood of success in obtaining such a loan; 5. Request or receive payment for debt relief services until certain conditions are met, including at least one debt has been renegotiated, the customer has made at least one payment pursuant to the renegotiation; Disclose or receive for consideration unencrypted consumer account numbers for use in telemarketing, other than billing information to process a payment; 7. Cause billing information to be submitted for payment without express informed consent of the customer; or 8. Repeatedly or continuously cause any telephone to ring or engage a person in telephone conversation with the intent to annoy, abuse, or harass the recipient. Telemarketers may not submit billing information for payment without the customer s express verifiable authorization, either written or oral (provided it is audio-recorded). 12 Time of day Telemarketing calls may be placed between 8:00 a.m. and 9:00 p.m. every day (recipient s local time), unless the recipient has given prior consent for a different time. 11 For a complete description of the applicable conditions, see 16 C.F.R (a)(5). 12 For oral authorizations to be valid, the customer must also have received information regarding the number, date, and amount of the charges, the customer s name and billing information, the date of their authorization, and a telephone number for customer inquiry that is answered during normal business hours. 11

12 Caller identification Assisting or facilitating Prohibited misrepresentations Telemarketers must transmit caller identification information, and when possible, the name of the telemarketer. No person may knowingly (or consciously avoid knowingly) provide substantial assistance or support to any telemarketer violating the TSR. Telemarketers may not misrepresent the following information: 1. The total cost of the goods offered; 2. Any material condition on the offer; 3. Any material characteristic of the goods; 4. Any material aspect of the refund policy; 5. Any material aspect of a prize promotion; 6. Any material aspect of any investment opportunity; 7. The telemarketer s affiliation with any person or government entity; 8. Any material aspect of any negative features; 9. That any customer needs the goods offered to provide already existing protections; or 10. Any material aspect of any debt relief service. In addition, any telemarketer soliciting for a charitable organization may not misrepresent: 1. The purpose of the charitable organization; 2. That any charitable contribution is tax deductible; 3. The purpose for which the contribution will be used; 4. The percentage of any contribution that will go to a charitable organization; 5. Any material aspect of a prize promotion; or 6. The charitable organization or telemarketer s affiliation with any person or government entity. Recordkeeping requirements Telemarketers must retain the following for two years after the calling campaign is completed: 1. Copies of all scripts and promotional materials; 2. The name and address of each prize recipient and the prizes awarded with a value greater than $25.00; 3. The name and address of each customer, the goods or services purchases, the date they were purchased on, and the amount paid; 4. The calling agent s name, address, telephone number and job title; and 5. All verifiable records of prior express informed consent. 12

13 Exemptions Penalties Subject to certain conditions and limitations, the following activities are exempt from the TSR s requirements: The sale of pay-per-call services; 2. The sale of franchises; 3. Telephone calls in which the transaction is not completed or payment is not required until after an in-person presentation; 4. Certain telephone calls initiated by the customer or donor, including those that are not the result of any solicitation by the seller or charitable organization or those in response to an advertisement in any medium except direct mail; 5. Telephone calls between a telemarketer and any business, except calls to induce the retail sale of nondurable office or cleaning supplies. The TSR provides for a private right of action (including class actions). In addition, TSR actions may be brought by the state attorneys general. The FTC can also enforce the TSR. 13 For a complete description of the applicable exemptions, see 16 C.F.R

14 IV. REFERENCE CHART: FEDERAL AUTODIALED AND PRERECORDED CALL CONSENT RESTRICTIONS AS OF OCTOBER 16, 2013 CALLS TO RESIDENTIAL LANDLINES CALLS TO WIRELESS TELEPHONES INFORMATIONAL ONLY PRERECORDED MESSAGE CALLS (NO SOLICITATION) TELEMARKETING PRERECORDED MESSAGE CALLS OK OK for certain exempt calls, including for emergencies, noncommercial calls, and HIPAAcovered calls Otherwise Prohibited unless caller has prior express written consent from the called party (including consent specifically to receive prerecorded calls); also must comply with additional disclosure, abandonment, and opt-out requirements OK for emergencies Otherwise prohibited unless caller has prior express consent from the called party 14 Prohibited unless caller has prior express written consent from the called party (including consent specifically to receive prerecorded calls) 15 ; also must comply with additional disclosure, abandonment, and opt-out requirements INFORMATIONAL ONLY AUTODIALED CALLS (NO SOLICITATION) Includes Autodialed Text Messages OK OK for emergencies Otherwise prohibited unless caller has prior express consent from the called party TELEMARKETING AUTODIALED CALLS Includes Autodialed Text Messages OK Prohibited unless caller has prior express written consent (including consent specifically to receive prerecorded calls) from the called party; also must comply with additional disclosure, abandonment, and opt-out requirements 14 Under current law, prior express consent can include a customer providing his or her number to you as a contact number, although there are some nuances and limitations to this approach. 15 Prior express written consent requires affirmative written consent by consumers (e.g., can include not only consent in writing but also click-through or an oral recording), a signature, and specific disclosures. In addition, the consumer s consent cannot be a condition of purchasing any goods or services. 14

15 V. TEXT OF THE TELEPHONE CONSUMER PROTECTION ACT AND IMPLEMENTING REGULATIONS 47 U.S.C. 227 Restrictions on Use of Telephone Equipment (a) Definitions As used in this section (1) The term automatic telephone dialing system means equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. (2) The term established business relationship, for purposes only of subsection (b)(1)(c)(i) of this section, shall have the meaning given the term in section of title 47, Code of Federal Regulations, as in effect on January 1, 2003, except that (A) such term shall include a relationship between a person or entity and a business subscriber subject to the same terms applicable under such section to a relationship between a person or entity and a residential subscriber; and (B) an established business relationship shall be subject to any time limitation established pursuant to paragraph (2)(G)). [1] (3) The term telephone facsimile machine means equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper. (4) The term telephone solicitation means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person s prior express invitation or permission, (B) to any person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization. 15

16 (5) The term unsolicited advertisement means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person s prior express invitation or permission, in writing or otherwise. (b) Restrictions on use of automated telephone equipment (1) Prohibitions It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice (i) to any emergency telephone line (including any 911 line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency); (ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call; (B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B); (C) to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless (i) the unsolicited advertisement is from a sender with an established business relationship with the recipient; (ii) the sender obtained the number of the telephone facsimile machine through (I) the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or (II) a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution, except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before July 9, 2005, if the sender possessed the facsimile machine number of the recipient before July 9, 2005; and 16

17 (iii) the unsolicited advertisement contains a notice meeting the requirements under paragraph (2)(D), except that the exception under clauses (i) and (ii) shall not apply with respect to an unsolicited advertisement sent to a telephone facsimile machine by a sender to whom a request has been made not to send future unsolicited advertisements to such telephone facsimile machine that complies with the requirements under paragraph (2)(E); or (D) to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously. (2) Regulations; exemptions and other provisions The Commission shall prescribe regulations to implement the requirements of this subsection. In implementing the requirements of this subsection, the Commission (A) shall consider prescribing regulations to allow businesses to avoid receiving calls made using an artificial or prerecorded voice to which they have not given their prior express consent; (B) may, by rule or order, exempt from the requirements of paragraph (1)(B) of this subsection, subject to such conditions as the Commission may prescribe (i) calls that are not made for a commercial purpose; and (ii) such classes or categories of calls made for commercial purposes as the Commission determines (I) will not adversely affect the privacy rights that this section is intended to protect; and (II) do not include the transmission of any unsolicited advertisement; (C) may, by rule or order, exempt from the requirements of paragraph (1)(A)(iii) of this subsection calls to a telephone number assigned to a cellular telephone service that are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect; (D) shall provide that a notice contained in an unsolicited advertisement complies with the requirements under this subparagraph only if (i) the notice is clear and conspicuous and on the first page of the unsolicited advertisement; (ii) the notice states that the recipient may make a request to the sender of the unsolicited advertisement not to send any future unsolicited advertisements to a telephone facsimile machine or machines and that failure to comply, within the shortest reasonable time, as determined by the Commission, with such a request meeting the requirements under subparagraph (E) is unlawful; (iii) the notice sets forth the requirements for a request under subparagraph (E); 17

18 (iv) the notice includes (I) a domestic contact telephone and facsimile machine number for the recipient to transmit such a request to the sender; and (II) a cost-free mechanism for a recipient to transmit a request pursuant to such notice to the sender of the unsolicited advertisement; the Commission shall by rule require the sender to provide such a mechanism and may, in the discretion of the Commission and subject to such conditions as the Commission may prescribe, exempt certain classes of small business senders, but only if the Commission determines that the costs to such class are unduly burdensome given the revenues generated by such small businesses; (v) the telephone and facsimile machine numbers and the cost-free mechanism set forth pursuant to clause (iv) permit an individual or business to make such a request at any time on any day of the week; and (vi) the notice complies with the requirements of subsection (d) of this section; (E) shall provide, by rule, that a request not to send future unsolicited advertisements to a telephone facsimile machine complies with the requirements under this subparagraph only if (i) the request identifies the telephone number or numbers of the telephone facsimile machine or machines to which the request relates; (ii) the request is made to the telephone or facsimile number of the sender of such an unsolicited advertisement provided pursuant to subparagraph (D)(iv) or by any other method of communication as determined by the Commission; and (iii) the person making the request has not, subsequent to such request, provided express invitation or permission to the sender, in writing or otherwise, to send such advertisements to such person at such telephone facsimile machine; (F) may, in the discretion of the Commission and subject to such conditions as the Commission may prescribe, allow professional or trade associations that are tax-exempt nonprofit organizations to send unsolicited advertisements to their members in furtherance of the association s tax-exempt purpose that do not contain the notice required by paragraph (1)(C)(iii), except that the Commission may take action under this subparagraph only (i) by regulation issued after public notice and opportunity for public comment; and (ii) if the Commission determines that such notice required by paragraph (1)(C)(iii) is not necessary to protect the ability of the members of such associations to stop such associations from sending any future unsolicited advertisements; and 18