May 24, 2013.
On February 11, 2013, the Municipal Securities Rulemaking Board (“MSRB”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”) 
and Rule 19b-4 thereunder,
a proposed rule change to amend MSRB Rule G-39, on telemarketing. Specifically, the proposed rule change would amend certain provisions of MSRB Rule G-39 and add new provisions to make the rule substantially similar to the telemarketing rules of the Federal Trade Commission (“FTC”). The proposed rule change was published for comment in the Federal Register on March 4, 2013.
The Commission received no comments on the proposed rule change. The text of the proposed rule change is available on the MSRB's Web site at www.msrb.org/Rules-and-Interpretations/SEC-Filings/2013-Filings.aspx, at the MSRB's principal office, and at the Commission's Public Reference Room. This order approves the proposed rule change.
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II. Description of the Proposal
As stated in the Notice, the proposed rule change would amend MSRB Rule G-39, on telemarketing, to include provisions substantially similar to those contained in the FTC rules that prohibit deceptive and other abusive telemarketing acts or practices.
Rule G-39 currently requires brokers, dealers, and municipal securities dealers (“dealers”) to, among other things, maintain do-not-call lists and limit the hours of telephone solicitations. In 1996, the SEC directed the MSRB (along with the other self-regulatory organizations) to enact a telemarketing rule in accordance with the Prevention Act.
The Prevention Act requires the Commission to promulgate, or direct any national securities exchange or registered national securities association (collectively, “self-regulatory organizations” or “SROs”) to promulgate, rules substantially similar to the FTC rules, to prohibit deceptive and other abusive telemarketing acts or practices, unless the Commission determines either that the rules are not necessary or appropriate for the protection of investors or the maintenance of fair and orderly markets, or that existing federal securities laws or Commission rules already provide for such protection.
In 1997, the SEC determined that telemarketing rules promulgated and expected to be promulgated by the SROs, together with the other rules of the SROs, the federal securities laws, and the SEC's rules thereunder, satisfied the requirements of the Prevention Act because, at the time, the applicable provisions of those laws and rules were substantially similar to the Telemarketing Sales Rule.
Since 1997, the FTC has amended its telemarketing rules in light of changing telemarketing practices and technology.
In May 2011, Commission staff directed the MSRB (along with all other SROs) to conduct a review of its telemarketing rule and propose rule amendments that provide protections that are at least as strong as those provided by the FTC's telemarketing rules.
Commission staff had concerns “that the [self-regulatory organization] rules overall have not kept pace with the FTC's rules, and thus may no longer meet the standards of the Prevention Act.” 
The proposed rule amendments, as directed by the Commission staff, would amend and adopt provisions in Rule G-39 that would be substantially similar to the FTC's current rules that prohibit deceptive and other abusive telemarketing acts or practices as described below.
General Telemarketing Requirements
Proposed Rule G-39(a)(iv) would remind dealers that engage in telemarketing that they are also subject to the requirements of relevant state and federal laws and rules, including the Prevention Act, the Telephone Consumer Protection Act,
and the rules of the Federal Communications Commission relating to telemarketing practices and the rights of telephone consumers.
Maintenance of Do-Not-Call Lists
Proposed Rule G-39(d)(vi) would maintain the requirement in Rule G-39 that a dealer making telemarketing calls must maintain a record of a caller's request not to receive further calls. The amendment, however, would delete the requirement that a dealer honor a firm-specific do-not-call request for five years from the time the request is made. This amendment makes this provision consistent with the FTC's Telemarketing Sales Rule because the time for which the firm-specific opt-out must be honored under the FTC's Telemarketing Sales Rule 
Additionally, the proposed rule change would clarify that the record of do-not-call requests must be permanent.
MSRB Rule G-39(f) would continue to state that, if a dealer uses another entity to perform telemarketing services on its behalf, the dealer remains responsible for ensuring compliance with all provisions of the rule. The proposed amendments would clarify that dealers must consider whether the entity or person that a dealer uses for outsourcing, is appropriately registered or licensed, where required.
Caller Identification Information
Proposed Rule G-39(g) would provide that dealers engaging in telemarketing must transmit caller identification information 
and are explicitly prohibited from blocking caller identification information. The telephone number provided would have to permit any person to make a do-not-call request during regular business hours. These provisions are similar to the caller identification provision in the FTC rules.
Unencrypted Consumer Account Numbers
Proposed Rule G-39(h) would prohibit a dealer from disclosing or receiving, for consideration, unencrypted consumer account numbers for use in telemarketing. The MSRB believes that this proposed provision would be substantially similar to the FTC's provision regarding unencrypted consumer account numbers.
Additionally, the proposed rule change would define “unencrypted” to include not only complete, visible account numbers, whether provided in lists or singly, but also encrypted information with a key to its decryption. The MSRB believes that this approach is substantially similar to the approach taken by the FTC.
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Submission of Billing Information
Proposed Rule G-39(i) would provide that, for any telemarketing transaction, a dealer must obtain the express informed consent of the person to be charged and to be charged using the identified account. If the telemarketing transaction involves preacquired account information 
and a free-to-pay conversion 
feature, the dealer would have to: (1) Obtain from the customer, at a minimum, the last four digits of the account number to be charged; (2) obtain from the customer an express agreement to be charged and to be charged using the identified account number; and (3) make and maintain an audio recording of the entire telemarketing transaction. For any other telemarketing transaction involving preacquired account information, the dealer would have to: (1) Identify the account to be charged with sufficient specificity for the customer to understand what account will be charged; and (2) obtain from the customer an express agreement to be charged and to be charged using the identified account number. The MSRB believes that these proposed provisions would be substantially similar to the FTC's provisions regarding the submission of billing information.
Although the MSRB expressed the view that some of these provisions may not be directly applicable to securities transactions generally, and, more specifically, municipal securities transactions, the proposed rule is substantially similar to FINRA's telemarketing rule, which includes similar provisions.
Proposed Rule G-39(j) would prohibit a dealer from abandoning 
any outbound telephone call. The abandoned calls prohibition would be subject to a “safe harbor” under proposed subparagraph (j)(ii) that would require the dealer: (1) To employ technology that ensures abandonment of no more than three percent of all calls answered by a person, measured over the duration of a single calling campaign, if less than 30 days, or separately over each successive 30-day period or portion thereof that the campaign continues; (2) for each outbound telephone call placed, to allow the telephone to ring for at least 15 seconds or four rings before disconnecting an unanswered call; (3) whenever a dealer is not available to speak with the person answering the outbound telephone call within two seconds after the person's completed greeting, to promptly play a recorded message stating the name and telephone number of the dealer on whose behalf the call was placed; and (4) to maintain records establishing compliance with the “safe harbor.” The MSRB believes that these proposed provisions would be substantially similar to the FTC's provisions regarding abandoned calls.
Proposed Rule G-39(k) would prohibit a broker, dealer, or municipal securities dealer from initiating any outbound telephone call that delivers a prerecorded message without a person's express written agreement 
to receive such calls. The proposed rule change also would require that all prerecorded outbound telephone calls provide specified opt-out mechanisms so that a person can opt out of future calls. The prohibition would not apply to a prerecorded message permitted for compliance with the “safe harbor” for abandoned calls under proposed subparagraph (j)(ii). The MSRB believes that the proposed provisions would be substantially similar to the FTC's provisions regarding prerecorded messages.
Credit Card Laundering
Except as expressly permitted by the applicable credit card system, proposed Rule G-39(l) would prohibit a dealer from: (1) Presenting to or depositing into, the credit card system 
for payment, a credit card sales draft 
generated by a telemarketing transaction that is not the result of a telemarketing credit card transaction between the cardholder 
and the dealer; 
(2) employing, soliciting, or otherwise causing a merchant,
or an employee, Start Printed Page 32486representative or agent of the merchant, to present to or to deposit into the credit card system for payment, a credit card sales draft generated by a telemarketing transaction that is not the result of a telemarketing credit card transaction between the cardholder and the merchant; or (3) obtaining access to the credit card system through the use of a business relationship or an affiliation with a merchant, when such access is not authorized by the merchant agreement 
or the applicable credit card system. The MSRB believes that these proposed provisions would be substantially similar to the FTC's provisions regarding credit card laundering.
Although the MSRB expressed the view that some of these provisions may not be directly applicable to securities transactions generally, and, more specifically, municipal securities transactions, the proposed rule is substantially similar to FINRA's telemarketing rule, which includes these provisions.
Proposed Rule G-39(m) would exempt business-to-business calls from most of the provisions of the amended rule. Specifically, the exemption would provide that outbound telephone calls from a dealer to a business entity, government, or political subdivision, agency, or instrumentality of a government are exempt from the rule, other than sections (a)(ii) and (d)(i)-(iii), (v) and (vi). The sections of the proposed rule that would still apply to business-to-business calls relate to the firm-specific do-not-call list and procedures related to (i) maintaining a do-not-call list, (ii) training personnel on the existence and use of the do-not-call list, (iii) the recording and honoring of do-not-call requests, (iv) application to affiliated persons or entities, and (v) maintenance of do-not-call lists. FINRA's telemarketing rule, Rule 3230, does not include an express exemption for business-to-business calls.
The FTC's Telemarketing Sales Rule, however, includes an exemption from all of its provisions for telephone calls between a telemarketer and any business, with a caveat that most of the rule continues to apply to sellers and telemarketers of nondurable office or cleaning supplies.
When initially adopting the exception for business-to-business calls, the FTC indicated that it believed Congress did not intend that every business use of the telephone be covered by the FTC's Telemarketing Sales Rule.
The only type of business-to-business calls that are subject to the Telemarketing Sales Rule are calls to induce the retail sale of nondurable office or cleaning supplies.
The MSRB believes that exempting business-to-business calls pertaining to municipal securities from Rule G-39 would be consistent with the FTC's general approach to exempting business-to-business calls because, unlike sellers of nondurable office or cleaning supplies, dealers are subject to an entire regulatory regime, which includes the federal securities laws, the fair practice rules of the MSRB, and examinations and enforcement by FINRA, banking regulators and the SEC. Nevertheless, the provisions of proposed Rule G-39 pertaining to the firm-specific do-not-call list and related procedures would apply to business-to-business calls. Dealers are already required to maintain a firm-specific do-not-call list for requests that are not related to business-to-business calls; therefore, the MSRB believes that requiring such a list with respect to business-to-business calls should not create an undue burden. Moreover, the MSRB believes that it would be reasonable to require dealers to honor the wishes of businesses that do not wish to be solicited by telephone by requiring dealers to maintain a list of such do-not-call requests. The MSRB believes that this approach also would be consistent with FINRA's telemarketing rule and related guidance.
Proposed Rule G-39(n) would include the following definitions, which the MSRB believes would be substantially similar to the corresponding definitions in the FTC's Telemarketing Sales Rule: 
“acquirer,” “billing information,” “caller identification service,” “cardholder,” “charitable contribution,” “credit,” “credit card,” “credit card sales draft,” “credit card system,” “customer,” “donor,” “free-to-pay conversion,” “merchant,” “merchant agreement,” “outbound telephone call,” “preacquired account information” and “telemarketer.” 
Additionally, the proposed rule change would delete the reference to “telephone solicitation.”
Proposed Rule G-39(n) also would include definitions of “person” and “telemarketing” that differ substantively from the FTC's and FINRA's definitions of these terms but that reflect MSRB's jurisdictional scope. While the definition of “person” in proposed MSRB Rule G-39(n)(xvii) tracks the definition in the FTC and FINRA rules to include any individual, group, unincorporated association, limited or general partnership, corporation, or other business entity, it further defines a “person” to include a government, or political subdivision, agency, or instrumentality of a government. These entities are included in the proposed definition because dealers often solicit these types of entities. While the MSRB believes that the proposed definition of “telemarketing” would be substantially similar to the FTC and FINRA rules, its scope would be limited in MSRB Rule G-39(n)(xxi) to calls “pertaining to municipal securities or municipal financial products” since the MSRB only promulgates rules pertaining to the municipal securities activities of dealers. The MSRB intends the Start Printed Page 32487limitation in the definition to correspond with the limits of the MSRB's rulemaking authority. As described earlier, the MSRB has implemented rules to address sales practices by dealers that cover their municipal securities activities, including sales by telephone.
Technical and Conforming Changes
The proposed revisions to MSRB Rule G-39 would make a number of technical and conforming changes. First, the proposed revisions would amend Rule G-39 to delete the phrase “or person associated with a broker, dealer or municipal securities dealer” throughout the rule since associated persons are included in the definition of “broker, dealer or municipal securities dealer” in the MSRB rules.
Second, the proposed revisions would renumber and make technical changes to the terms “account activity,” “broker, dealer or municipal securities dealer of record,” “established business relationship,” and “personal relationship.” Third, the proposed revisions would amend paragraphs (a), (b), (c), (c)(iv), and (e) by replacing the term “telephone solicitation” with the term “outbound telephone call.” Fourth, the proposed revisions would amend paragraphs (d)(iii), (d)(iv), and (d)(vi) by replacing the term “telemarketing” with the term “outbound telephone.” Fifth, the proposed revisions would update a reference to an “established business relationship” in subparagraph (a)(1)(A). Finally, the proposed rule change would amend paragraph (b)(ii) to clarify that a signed, written agreement may be obtained electronically under the E-Sign Act.
The MSRB requested an effective date for the proposed rule change of 90 days following the date of SEC approval.
III. Summary of Comments Received
As previously noted, the Commission received no comments on the proposed rule change.
IV. Commission's Findings
The Commission has carefully reviewed the proposed rule change, and, based on its review of the record, finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to the MSRB.
In particular, the proposed rule change is consistent with Section 15B(b)(2)(C) of the Act, which provides that the MSRB's rules shall be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in municipal securities and municipal financial products, to remove impediments to and perfect the mechanism of a free and open market in municipal securities and municipal financial products, and, in general, to protect investors, municipal entities, obligated persons, and the public interest.
More specifically, the Commission finds that the proposed rule change is consistent with Section 15B(b)(2)(C) of the Act because it should protect investors and the public interest by preventing dealers from engaging in fraudulent and manipulative acts and practices, particularly deceptive and other abusive telemarketing acts or practices. The Commission also finds that the proposed rule is consistent with the FTC's and FINRA's telemarketing rules, which include provisions similar to those described above. Accordingly, the proposed rule change should foster cooperation and coordination with FINRA members and other persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in municipal securities and municipal financial products, and remove impediments to and perfect the mechanism of a free and open market in municipal securities and municipal financial products.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder. As requested by the MSRB, the proposed rule change will become effective 90 days following the date of SEC approval.
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
that the proposed rule change (SR-MSRB-2013-02) be, and hereby is, approved.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Jill M. Peterson,
[FR Doc. 2013-12850 Filed 5-29-13; 8:45 am]
BILLING CODE 8011-01-P