Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Telemarketing Rules

Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”), and Rule 19b-4 thereunder, notice is hereby given that on February 28, 2012, the International Securities Exchange, LLC (the “Exchange” or the “ISE”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which items have been substantially prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.

I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

The Exchange proposes to amend ISE Rule 626 (Telephone Solicitation) to revise and add provisions that are substantially similar to Federal Trade Commission (“FTC”) rules that prohibit deceptive and other abusive telemarketing acts or practices. The text of the proposed rule change is available on the Exchange's Web site at http://www.ise.com,, at the principal office of the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change

In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change

(a) Purpose—The Exchange proposes to amend Rule 626 (Telephone Solicitation), to revise and add provisions that are substantially similar to FTC rules that prohibit deceptive and other abusive telemarketing acts or practices. Rule 626 requires Members to, among other things, maintain do-not-call lists, limit the hours of telephone solicitation, and not use deceptive and abusive acts and practices in connection with telemarketing. The Commission directed ISE to enact these telemarketing rules in accordance with the Telemarketing Consumer Fraud and Abuse Prevention Act of 1994 (“Prevention Act”). The Prevention Act requires the Commission to promulgate, or direct any national securities exchange or registered securities association 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 orderly markets, or that existing federal securities laws or Commission rules already provide for such protection.

In 1997, the Commission determined that telemarketing rules promulgated and expected to be promulgated by self-regulatory organizations, together with the other rules of the self-regulatory organizations, the federal securities laws and the Commission'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 FTC's telemarketing rules. Since 1997, the FTC has amended its telemarketing rules in light of changing telemarketing practices and technology.

As mentioned above, the Prevention Act requires the Commission to promulgate, or direct any national securities exchange or registered securities association to promulgate, rules substantially similar to the FTC rules to prohibit deceptive and other abusive telemarketing acts or practices. In May 2011, Commission staff directed ISE 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 change, as directed by the Commission staff, amends and adopts provisions in Rule 626 that are substantially similar to the FTC's current rules that prohibit deceptive and other abusive telemarketing acts or practices as described below.

Telemarketing Restrictions

The proposed rule change amends the telemarketing restrictions in Rule 626(a) to provide that no Member or associated person may make an outbound telephone call to: (1) Any person's residence at any time other than between 8 a.m. and 9 p.m. local time at the called person's locations; (2) any person that previously has stated that he or she does not wish to receive any outbound telephone calls made by or on behalf of the Member ; or (3) any person who has registered his or her telephone number on the FTC's national do-not-call registry.

The proposed rule change is substantially similar to the FTC's provisions regarding abusive telemarketing acts or practices. The FTC provided a discussion of the provision when it was adopted pursuant to the Prevention Act.

Caller Disclosures

The proposed rule change amends Rule 626(b) to delete the phrase “for the purpose of telemarketing,” which concept is included in the proposed definition of “outbound telephone call.” The proposed rule change also provides that the telephone number that a caller provides to a person as the number at which the caller may be contacted may not be a 900 number or any other number for which charges exceed local or long-distance transmission charges.

Exceptions

The proposed rule change amends Rule 626(a) to provide that the prohibition in paragraph (a)(1) does not apply to outbound telephone calls by a Member or an associated person if:

(1) The Member has received that person's express prior written consent;

(2) The Member has an established business relationship with the person; or

(3) the person is a broker or dealer.

This amendment deletes the exception related to existing customers and replaces it with the exception for proposed defined term “established business relationships,” the definition of which is substantially similar to the FTC's definition of that term.

Member's Firm-Specific Do-Not-Call List

The proposed rule change reletters Rule 626(e) as 626(c) and provides that, each Member must make and maintain a centralized list of persons who have informed the Member or any of its associated persons that they do not wish to receive outbound telephone calls. The proposed rule change replaces the term “solicitations” with the proposed term “outbound telephone calls,” the definition of which is substantially similar to the FTC's definition of that term. The proposed rule change also deletes the prohibition on making outbound telephone calls to persons on the Member's firm-specific do-not-call list and moves this prohibition to proposed Rule 626(a)(2), as described above.

Proposed Rule 626(c) adopts procedures that Members must institute to comply with Rule 626(a) and (b) prior to engaging in telemarketing. These procedures must meet the following minimum standards:

(1) Members must have a written policy for maintaining their firm-specific do-not-call lists.

(2) Personnel engaged in any aspect of telemarketing must be informed and trained in the existence and use of the Member's firm-specific do-not-call list.

(3) If a Member receives a request from a person not to receive calls from that Member, the Member must record the request and place the person's name, if provided, and telephone number on its firm-specific do-not-call list at the time the request is made.

(4) Members or associated persons making an outbound telephone call must make the caller disclosures set forth in Rule 626(b).

(5) In the absence of a specific request by the person to the contrary, a person's do-not-call request shall apply to the Member making the call, and will not apply to affiliated entities unless the consumer reasonably would expect them to be included given the identification of the call and the product being advertised.

(6) A Member making outbound telephone calls must maintain a record of a person's request not to receive further calls.

Inclusion of this requirement to adopt these procedures will not create any new obligations on Members, as they are already subject to identical provisions under FCC telemarketing regulations.

Do-Not-Call Safe Harbors

Proposed Rule 626(d) provides for certain exceptions to the telemarketing restrictions set forth in proposed Rule 626(a)(3), which prohibits outbound telephone calls to persons on the FTC's national do-not-call registry.

First, proposed Rule 626(d)(1) provides that a Member or associated person making outbound telephone calls will not be liable for violating proposed Rule 626(a)(3) if:

(1) The Member has an established business relationship with the called person; however, a person's request to be placed on the Member's firm-specific do-not-call list terminates the established business relationship exception to the national do-not-call registry provision for that Member even if the person continues to do business with the Member;

(2) The Member has obtained the person's prior express written consent, which must be clearly evidenced by a signed, written agreement (which may be obtained electronically under the E-Sign Act ) between the person and the Member that states that the person agrees to be contacted by the Member and includes the telephone number to which the calls may be placed; or

(3) The Member or associated person making the call has a personal relationship with the called person.

The proposed rule change is substantially similar to the FTC's provision regarding an exception to the prohibition on making outbound telephone calls to persons on the FTC's Do-not-call registry. The FTC provided a discussion of the provision when it was adopted pursuant to the Prevention Act.

Second, proposed Rule 626(d)(2) provides that a Member or associated person making outbound telephone calls will not be liable for violating proposed Rule 626(a)(3) if the Member or associated person demonstrates that the violation is the result of an error and that as part of the Member's routine business practice:

(l) The Member has established and implemented written procedures to comply with Rule 626(a) and (b);

(2) The Member has trained its personnel, and any entity assisting in its compliance, in the procedures established pursuant to the preceding clause;

(3) The Member has maintained and recorded a list of telephone numbers that it may not contact in compliance with Rule 626(c); and

(4) The Member uses a process to prevent outbound telephone calls to any telephone number on the Member's firm-specific do-not-call list or the national do-not-call registry, employing a version of the national do-not-call registry obtained from the FTC no more than 31 days prior to the date any call is made, and maintains records documenting this process.

The proposed rule change is substantially similar to the FTC's safe harbor to the prohibition on making outbound telephone calls to persons on the FTC's national do-not-call registry. The FTC provided a discussion of the provision when it was adopted pursuant to the Prevention Act.

Wireless Communications

Proposed Rule 626(e) clarifies that the provisions set forth in Rule 626 are applicable to Members and associated persons making outbound telephone calls to wireless telephone numbers.

Outsourcing Telemarketing

Proposed Rule 626(f) states that if a Member uses another entity to perform telemarketing services on its behalf, the Member remains responsible for ensuring compliance with Rule 626. The proposed rule change also provides that an entity or person to which a Member outsources its telemarketing services must be appropriately registered or licensed, where required.

Billing Information

The proposed rule change reletters Rule 626(f) as Rule 626(g) and provides that, for any telemarketing transaction, no Member or associated person may submit billing information for payment without the express informed consent of the customer. Proposed Rule 626(g) requires that each Member or associated person 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 Member or associated person must:

(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 Member or associated person must:

(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 proposed rule change is substantially similar to the FTC's provision regarding the submission of billing information. The FTC provided a discussion of the provision when it was adopted pursuant to the Prevention Act.

Caller Identification Information

Proposed Rule 626(h) provides that Members that engage in telemarketing must transmit caller identification information and are explicitly prohibited from blocking caller identification information. The telephone number provided must permit any person to make a do-not-call request during normal business hours. These provisions are similar to the caller identification provision in the FTC rules. Inclusion of these caller identification provisions in this proposed rule change will not create any new obligations on Members, as they are already subject to identical provisions under FCC telemarketing regulations.

Unencrypted Consumer Account Numbers

Proposed Rule 626(i) prohibits a Member or associated person from disclosing or receiving, for consideration, unencrypted consumer account numbers for use in telemarketing. The proposed rule change is substantially similar to the FTC's provision regarding unencrypted consumer account numbers. The FTC provided a discussion of the provision when it was adopted pursuant to the Prevention Act. Additionally, the proposed rule change defines “unencrypted” as not only complete, visible account numbers, whether provided in lists or singly, but also encrypted information with a key to its decryption. The proposed definition is substantially similar to the view taken by the FTC.

Abandoned Calls

Proposed Rule 626(j) prohibits a Member or associated person from abandoning any outbound telephone call. The abandoned calls prohibition is subject to a “safe harbor” under proposed Rule 626(j)(2) that requires a Member or associated person:

(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 Member or associated person is not available to speak with the person answering the outbound telephone call within two seconds after the person's completed greeting, promptly to play a prerecorded message stating the name and telephone number of the Member or associated person on whose behalf the call was placed; and

(4) To maintain records documenting compliance with the “safe harbor.” The proposed rule change is substantially similar to the FTC's provisions regarding abandoned calls. The FTC provided a discussion of the provisions when they were adopted pursuant to the Prevention Act.

Prerecorded Messages

Proposed Rule 626(k) prohibits a Member or associated person 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 requires that all prerecorded outbound telephone calls provide specified opt-out mechanisms so that a person can opt out of future calls. The prohibition does not apply to a prerecorded message permitted for compliance with the “safe harbor” for abandoned calls under proposed Rule 626(j)(2). The proposed rule change is substantially similar to the FTC's provisions regarding prerecorded messages. The FTC provided a discussion of the provisions when they were adopted pursuant to the Prevention Act.

Credit Card Laundering

Proposed Rule 626(m) prohibits credit card laundering, the practice of depositing into the credit card system a sales draft that is not the result of a credit card transaction between the cardholder and the Member. Except as expressly permitted, the proposed rule change prohibits a Member or associated person 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 Member;

(2) Employing, soliciting, or otherwise causing a merchant, or an employee, representative 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 Member; 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 proposed rule change is substantially similar to the FTC's provision regarding credit card laundering. The FTC provided a discussion of the provisions when they were adopted pursuant to the Prevention Act.

Definitions

Proposed Rule 626(n) adopts the following definitions, which are substantially similar to the FTC's definitions of these terms: “acquirer,” “billing information,” “caller identification service,” “cardholder,” “charitable contribution,” “credit,” “credit card,” “credit card sales draft,” “credit card system,” “customer,” “donor,” “established business relationship,” “free-to-pay conversion,” “merchant,” “merchant agreement,” “outbound telephone call,” “person,” “preacquired account information,” “telemarketer,” and “telemarketing. ” The FTC provided a discussion of each definition when they were adopted pursuant to the Prevention Act.

State and Federal Laws

The proposed rule change amends Rule 626, Interpretation and Policy .01 to remind Members and associated persons that engage in telemarketing that they also are subject to the requirements of relevant state and federal laws and rules, including the Prevention Act, the TCPA, and the rules of the FCC relating to telemarketing practices and the rights of telephone consumers.

Announcement in Regulatory Circular

The Exchange will announce the implementation date of the proposed rule change in a Regulatory Circular to be published no later than 90 days following the effective date. The implementation date will be no later than 180 days following the effective date.

Basis—The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act. Specifically, the Exchange believes the proposed rule change is consistent with the Section 6(b)(5) requirements that the rules of an exchange be designed to promote just and equitable principles of trade, to prevent fraudulent and manipulative acts, to remove impediments to and to perfect the mechanism for a free and open market and a national market system, and, in general, to protect investors and the public interest.

In particular, the proposed rule change will prevent fraudulent and manipulative acts and protect investors and the public interest by continuing to prohibit Members from engaging in deceptive and other abusive telemarketing acts or practices. Additionally, the proposed rule change removes impediments to and perfects the mechanism for a free and open market and a national market system, because it provides consistency among telemarketing rules of national securities exchanges and FINRA, therefore making it easier for investors to comply with these rules.

B. Self-Regulatory Organization's Statement on Burden on Competition

ISE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others

The Exchange neither solicited nor received comments on the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action

Because the foregoing proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder. The Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing the proposed rule change.

At any time within 60 days of the filing of the proposed rule change, the Commission may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including the proposed rule change, consistent with the Act. Comments may be submitted by any of the following methods:

Electronic Comments

• Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml);; or
• Send an email to rule-comments@sec.gov. Please include File No. SR-ISE-2012-11 on the subject line.

Paper Comments

• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-ISE-2012-11. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Web site ( http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549 on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.

All submissions should refer to File Number SR-ISE-2012-11 and should be submitted on or before April 10, 2012.