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shurmust
shurmust, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 141
Experience:  I have successfully prosecuted over 30 jury trials advocating on behalf of the government.
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I am a telemarketing business that makes cold calls to real

Resolved Question:

I am a telemarketing business that makes cold calls to real estate agents offering to create and manage their Google adwords campaign. We do negative option marketing where we'll give them 14 days at 4.95 and if they don't cancel they're auto enrolled and charged the regular price of $110 after the 14 and every 30 days thereafter. My question is what information do I absolutely have to give? And what do I avoid saying? Our terms and conditions (in which we must get a clear "yes" or "ok" before processing) states everything clearly and concisely but I'm still afraid I'm not running the tightest possible ship. I will be recording all calls in the event of a dispute and I don't want to succumb to false and empty threats of a legal nature.
Submitted: 10 months ago.
Category: Consumer Protection Law
Expert:  shurmust replied 10 months ago.

shurmust :

Greetings! I am happy to help you with your legal query.

shurmust :

I am somewhat confused, because on one end you wish to be conservative, but on the other hand, you ask, "what do I avoid saying."

shurmust :

I agree, I think it is better to be safe than sorry. What state is the business created in or incorporated in?

shurmust :

I presume your service agreements will be done online or will you be sending out written contracts?

Customer:

Service agreement will be a verbal affirmation that they agree to the terms and conditions with a clear "yes" or "ok" following the reading of the terms and conditions. I need to know what needs to be disclosed during the terms and conditions in accordance with the FTC rules and regulations on negative option marketing. What do I avoid saying as far as their satisfaction of the product or services? We stand by our ability to deliver quality service but there will be absolutely no refunds and I can't be held responsible for the subjective opinion of a real estate agent if they are unwilling the time and money required for a successful adwords campaign.

Customer:

The business was created in Oregon.

shurmust :

Thank you. Please give me a moment.

shurmust :

Okay. So it is all over the phone. On a side note, you must advise everyone in every state that the phone call is being recorded, the failure to do so may result in $1000.00 a call violation depending on the state.

shurmust :

Other than what you disclosed in your initial question, is there anything else that needs to be done.

shurmust :

You should consider that under the Electronic Fund Transfer Act (EFTA) all transactions that are done by a debit card, must provide the consumer with ample written notice prior to the withdrawl of the funds every month.

Customer:

How long is ample?

shurmust :

Clearly, if you are advising the consumer that they will be charged the regularly standard price of $110 on the 15th day and every 30 days thereafter, you should be fine.

shurmust :

I would say one week's notice would be more than conservative.

Customer:

Is that one week prior to each monthly charge?

shurmust :

Yes.

shurmust :

Remember, this is for debit cards only, so you may want to ensure that your staff is ensuring which accounts are credit cards and which accounts are debit cards, unless you wish to do it for everyone out of an abundance of caution.

shurmust :

You will need to gain the consumers consent to elect to have electronic communication in lieu of postage mail.

Customer:

Are there any other major issues to be aware of?

shurmust :

The telephone consumer protection act (TCPA) requires you to have prior WRITTEN express consent if you are calling someone cell phone with an automatic telephone dialing system.

shurmust :

These rules went into place Oct 16, 2013.

shurmust :

Failure to obtain prior written express consent when you call someone's cell phone may subject your company to a $500-$1500.00 per call violation, even if they never told you to stop calling.

shurmust :

You should also be cautious when soliciting residiential landlines.

shurmust :

Again, same principle applies.

Customer:

For recording calls, can it be woven into the script or must it be at the beginning?

shurmust :

It should be at the beginning.

shurmust :

Before we start the call, I want to tell you the call is being recorded for quality control and training purposes...

Customer:

I thought it was required for me to state that there are no refunds?

shurmust :

It has been a pleasure working with you tonight. Is there anything further you need?

shurmust :

Please keep me posted on the business. I wish you all the best on this venture. Should you need anything in the future, please feel free to ask for Shurmust. I am happy to assist on any on-going needs.

shurmust :

Please make sure you provide me positive feedback so I earn credit for the question.

shurmust :

Thank you!

Customer:

I asked a question above.

shurmust :

Sure. Which is that?

Customer:

I thought it was required for me to state that there are no refunds?

shurmust :

The major issues were the TCPA and EFTA that I was referring to. When you say no refunds, are you stating during days 15-30 and any days within the month. I presume this is a month to month contract.

Customer:

yes, this is after the auto enrollment has taken place.

shurmust :

If you intend to charge the for the entire month, and they cancel on day 31, then you should likely advise them that they are required to give you 48 hour notice so as not to et rebilled.

shurmust :

It would be wise to tell the consumer that they will be billed in advance for the entire month.

Customer:

Ok, you’re all set! Great Marketing is building your Google Adwords account using keyword phrases: (City) homes for sale, (City) real estate and any other relevent phrases to display your ad and we're aiming for at least 15 clicks per day using Google estimates, which is a $110 value. The $4.95 account creation will be charged to the card you provided today which will appear on your next statement. Most of our clients love the results, so after 14 days we’ll bill you for your next 30 days at the regular price of $110 unless you call customer service to cancel which you can do by calling the number I just gave you and every 30 days thereafter at the same low price billed automatically to the card you provided today unless you canceled, but we’re really confident you’ll love the results, so for now I'll go ahead and create your Google adwords account under the terms I described. Ok? (Must get clear yes or ok)

Customer:

those are the terms and conditions

shurmust :

Again, to your guiding principle, that you would rather be safe than sorry, and attempt to hide or conceal anything from the consumer. the last thing you want to do is develop a bad reputation of being some who scams someone and referred to the AG's office.

shurmust :

I would say on day 15

shurmust :

what is the cancellation time frame for the consumer to call to cancel before they are billed a whole month?

shurmust :

You should add these two. Remember, the recording at the beginning.

shurmust :

I would also, encourage you to make sure the number you have on record is either a cell phone or landline.

Customer:

time frame meaning "make sure to cancel x amount of hours before your bill date?"

shurmust :

correct.

Customer:

Is there anyway I can begin recording at a later time in the call?

Customer:

after announcing it?

shurmust :

Sure. But again, it would be probably be wise if you record the sales person requesting for permission to record, if not, you are subjecting yourself to liability.

shurmust :

If not, it appears you are hiding something. Remember, all of this will be the product of any pending litigation. Unless you delete all reordings after 30-90 days.

shurmust :

Is there anything else I can do to be of assistance?

Customer:

Unless there's anything else to be aware of.. I think that's it.

shurmust :

I think it is extremely wise of you to take these steps to ensure compliance with the laws and regulations. I am not sure if you have hired local counsel to help you, but certainly, as the business takes off and any other logistics, it would be wise to have someone review your contracts, etc.

shurmust :

It has been a pleasure working with you tonight. Please be sure to provide me positive feedback, so I earn credit.

shurmust :

Thank you, XXXXX XXXXX need anything in the future, please feel free to ask for Shurmust.

Customer:

Thank you very much.

shurmust :

You too.

shurmust, Lawyer
Satisfied Customers: 141
Experience: I have successfully prosecuted over 30 jury trials advocating on behalf of the government.
shurmust and 9 other Consumer Protection Law Specialists are ready to help you

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