Dive Brief:

• The Federal Trade Commission expanded its Telemarketing Sales Rule to cover consumers’ inbound calls seeking technical support assistance, often prompted by alerts on computers and other devices, as a way to sell bogus technical help. Such scams cost older consumers more than $175 million last year, with the FTC reporting consumer losses of at least $165 million so far in 2024.
• Commissioner Andrew Ferguson dissented, arguing that the FTC should stop making policy given the November election outcome. His fellow Republican commissioner, Melissa Holyoak, supported the rule expansion. “The proper role of this lame-duck Commission is not to announce new policies, but to hold down the fort, conduct routine law enforcement, and provide for an orderly transition to the Trump Administration,” Ferguson wrote Nov. 27.
• President-elect Donald Trump could select one of the FTC’s two Republican commissioners as the next chair. Chair Lina Khan, a law professor whose term ended on Sept. 26, will depart when Trump takes office. The five-member commission carries a 3-2 political divide, with the majority held by the administration’s party.

Dive Insight:

The expanded rule is designed to help protect consumers – many of them older Americans – who call a technology support company after seeing an ominous alert on their device warning them that they may need assistance to help cleanse malware or another bug infecting the machine.

“Tech support scams often want the caller to pay for tech support services they don't need, to fix a problem that doesn’t exist,” the agency said in a Nov. 27 press release. The FTC said people 60 and older were “five times more likely than younger people to report losing money on a tech support scam.” 

In his short dissent, Ferguson argued that the “Biden-Harris FTC” should stop rulemaking as “the American people have roundly rejected its regulatory assault on American business.”

Ferguson said he would oppose all new rules “not required by statute, and any enforcement action that advances an unprecedented theory of liability” until Trump’s nominees have joined the commission. 

The FTC’s other Republican member, Holyoak, argued in her concurring statement that “it is hardly novel policy to lawfully amend the longstanding, bipartisan TSR — which Congress, not the current Chair, decided the Commission should promulgate and enforce — to cover an ongoing and increasing threat to some of the most vulnerable in America.”

The amendment is also “entirely consistent with President-elect Trump’s past aggressive anti-fraud policies,” Holyoak wrote.

Ferguson is a former solicitor general for Virginia and chief counsel for Sen. Mitch McConnell, the Republican Majority Leader who plans to step down from that post when the new Congress convenes in January. 

Biden nominated Ferguson and Holyoak as commissioners in July 2023.

The FTC has updated the telemarketing rule several times since 2000, creating the “Do Not Call” Registry for telemarketers in 2003. The agency later added prerecorded telemarketing calls and debt collection services within the rule’s scope in later years.

Most of the rule provisions take effect in 60 days following their publication.