
[Federal Register Volume 77, Number 136 (Monday, July 16, 2012)]
[Notices]
[Pages 41859-41864]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17176]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67375; File No. SR-NYSEMKT-2012-03]


Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and 
Immediate Effectiveness of Proposed Rule Change Deleting NYSE MKT LLC 
Rule 440A--Equities, Which Addresses Telemarketing, and Adopting New 
NYSE MKT LLC Rule 3230--Equities, To Conform to FINRA's Telemarketing 
Rule

July 10, 2012.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Exchange Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is 
hereby given that on June 25, 2012, NYSE MKT LLC (the ``Exchange'' or 
``NYSE MKT'') filed with the Securities and Exchange Commission (the 
``Commission'') the proposed rule change as described in Items I, II 
and III below, which Items have been prepared by the Exchange. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to delete Rule 440A--Equities, which 
addresses telemarketing, and adopt new rule text that is substantially 
similar to FINRA Rule 3230. The text of the proposed rule change is 
available on the Exchange's Web site at www.nyse.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 those 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 parts of such 
statements.

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

1. Purpose
    The Exchange proposes to delete Rule 440A--Equities, which 
addresses telemarketing, and adopt new rule text that is substantially 
similar to FINRA Rule 3230.\4\
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    \4\ See Securities Exchange Act Release No. 66279 (January 30, 
2012), 77 FR 5611 (February 3, 2012) (SR-FINRA-2011-059). FINRA's 
rule change will become effective on July 9, 2012. See FINRA 
Regulatory Notice 12-17.
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Background
    On July 30, 2007, FINRA's predecessor, the National Association of 
Securities Dealers, Inc. (``NASD''), and NYSE Regulation, Inc. 
(``NYSER'') consolidated their member firm regulation operations into a 
combined organization, FINRA. Pursuant to Rule 17d-2 under the Exchange 
Act, New York Stock Exchange LLC (``NYSE''), NYSER and FINRA entered 
into an agreement (the ``Agreement'') to reduce regulatory duplication 
for their members by allocating to FINRA certain regulatory 
responsibilities for certain NYSE rules and rule interpretations 
(``FINRA Incorporated NYSE Rules''). NYSE MKT became a party to the 
Agreement effective December 15, 2008.\5\
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    \5\ See Securities Exchange Act Release No. 56148 (July 26, 
2007), 72 FR 42146 (August 1, 2007) (order approving the Agreement); 
Securities Exchange Act 56147 (July 26, 2007), 72 FR 42166 (August 
1, 2007) (SR-NASD-2007-054) (order approving the incorporation of 
certain NYSE Rules as ``Common Rules''); and Securities Exchange Act 
60409 (July 30, 2009), 74 FR 39353 (August 6, 2009) (order approving 
the amended and restated Agreement, adding NYSE MKT LLC as a party). 
Paragraph 2(b) of the Agreement sets forth procedures regarding 
proposed changes by FINRA, NYSE or NYSE MKT to the substance of any 
of the Common Rules.
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    As part of its effort to reduce regulatory duplication and relieve 
firms that are members of FINRA, NYSE and NYSE MKT of conflicting or 
unnecessary regulatory burdens, FINRA is now engaged in the process of 
reviewing and amending the NASD and FINRA Incorporated NYSE Rules in 
order to create a consolidated FINRA rulebook.\6\
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    \6\ FINRA's rulebook currently has three sets of rules: (1) NASD 
Rules, (2) FINRA Incorporated NYSE Rules, and (3) consolidated FINRA 
Rules. The FINRA Incorporated NYSE Rules apply only to those members 
of FINRA that are also members of the NYSE (``Dual Members''), while 
the consolidated FINRA Rules apply to all FINRA members. For more 
information about the FINRA rulebook consolidation process, see 
FINRA Information Notice, March 12, 2008.
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Proposed Rule Change
    The Exchange proposes to delete Rule 440A--Equities and adopt new 
Rule 3230--Equities to conform to the changes adopted by FINRA for 
telemarketing. FINRA adopted NASD Rule 2212 as FINRA Rule 3230, taking 
into account FINRA Incorporated NYSE Rule 440A \7\ and NYSE 
Interpretation 440A/01. FINRA Rule 3230 adds provisions that are 
substantially similar to Federal Trade Commission (``FTC'') rules that 
prohibit deceptive and other abusive telemarketing acts or practices.
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    \7\ NYSE Rule 440A is identical to Rule 440A--Equities.
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    NASD Rule 2212 and Rule 440A--Equities are similar rules that 
require members, among other things, to maintain do-not-call lists, 
limit the hours of telephone solicitations and prohibit members from 
using deceptive and abusive acts and practices in connection with 
telemarketing. The Commission directed FINRA and the Exchange to enact 
these telemarketing rules in accordance with the Telemarketing Consumer 
Fraud and Abuse Prevention Act of 1994 (``Prevention Act'').\8\ 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.\9\
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    \8\ 15 U.S.C. 6101-6108.
    \9\ 15 U.S.C. 6102.
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    In 2003, the FTC and the Federal Communications Commission 
(``FCC'') established requirements for sellers and telemarketers to 
participate in the national do-not-call registry.\10\ Pursuant to the 
Prevention Act, the Commission requested that FINRA and the Exchange 
amend their telemarketing rules to include a requirement that their 
members participate in the national do-not-call registry. In 2004, the 
Commission approved amendments to

[[Page 41860]]

NASD Rule 2212 requiring member firms to participate in the national 
do-not-call registry.\11\ The following year, the Commission approved 
amendments to NYSE Rule 440A, which were similar to the NASD rule 
amendments, but included additional provisions regarding the use of 
caller identification information, pre-recorded messages, telephone 
facsimiles and computer advertisements.\12\
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    \10\ See 68 FR 4580 (January 29, 2003); 68 FR 44144 (July 25, 
2003); CG Docket No. 02-278, FCC 03-153, (adopted June 26, 2003; 
released July 3, 2003).
    \11\ See Securities Exchange Act Release No. 49055 (January 12, 
2004), 69 FR 2801 (January 20, 2004) (Order Approving File No. SR-
NASD-2003-131).
    \12\ See Securities Exchange Act Release No. 52579 (October 7, 
2005), 70 FR 60119 (October 14, 2005) (Order Approving File No. SR-
NYSE-2004-73).
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    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.\13\ In 2011, Commission staff directed all exchanges 
and FINRA to conduct a review of their telemarketing rules and propose 
rule amendments that provide protections that are at least as strong as 
those provided by the FTC's telemarketing rules. FINRA's adoption of 
FINRA Rule 3230 reflects amendments to NASD Rule 2212 and FINRA 
Incorporated NYSE Rule 440A that update those rules to meet the 
standards of the Prevention Act.\14\
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    \13\ 15 U.S.C. 6102.
    \14\ See Securities Exchange Act Release No. 65645 (October 27, 
2011), 76 FR 67787 (November 2, 2011) (Order Approving File No. SR-
FINRA-2011-059).
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    The proposed rule change, as directed by the Commission staff, 
adopts provisions in proposed Rule 3230--Equities that are 
substantially similar to the FTC's current rules that prohibit 
deceptive and other abusive telemarketing acts or practices as 
described below.\15\
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    \15\ The text of proposed Rule 3230--Equities would also be the 
same as FINRA Rule 3230, except that (i) the Exchange would 
substitute the term ``member organization'' for ``member;'' and (ii) 
the Exchange would add supplementary material to define the term 
``person associated with a member organization'' to have the same 
meaning as the terms ``person associated with a member'' or 
``associated person of a member'' as defined in Article I(rr) of the 
FINRA By-Laws.
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Telemarketing Requirements
    Proposed Rule 3230(a)--Equities provides that no member 
organization or person associated with a member organization shall 
initiate any outbound telephone call \16\ to:
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    \16\ An ``outbound telephone call'' is a telephone call 
initiated by a telemarketer to induce the purchase of goods or 
services or to solicit a charitable contribution from a donor. A 
``customer'' is any person who is or may be required to pay for 
goods or services through telemarketing. A ``donor'' means any 
person solicited to make a charitable contribution. A ``person'' is 
any individual, group, unincorporated association, limited or 
general partnership, corporation, or other business entity. 
``Telemarketing'' means consisting of or relating to a plan, 
program, or campaign involving at least one outbound telephone call, 
for example cold-calling. The term does not include the solicitation 
of sales through the mailing of written marketing materials, when 
the person making the solicitation does not solicit customers by 
telephone but only receives calls initiated by customers in response 
to the marketing materials and during those calls takes orders only 
without further solicitation. For purposes of the previous sentence, 
the term ``further solicitation'' does not include providing the 
customer with information about, or attempting to sell, anything 
promoted in the same marketing materials that prompted the 
customer's call. See proposed Rule 3230(m)(11), (14), (16), (17), 
and (20)--Equities; see also FINRA Rule 3230(m)(11), (14), (16), 
(17), and (20); and 16 CFR 310.2(f), (l), (n), (v), (w), and (dd).
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    (1) Any residence of a person before the hour of 8 a.m. or after 9 
p.m. (local time at the called party's location), unless the member 
organization has an established business relationship \17\ with the 
person pursuant to paragraph 3230(m)(12)(A), the member organization 
has received that person's prior express invitation or permission, or 
the person called is a broker or dealer;
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    \17\ An ``established business relationship'' is a relationship 
between a member organization and a person if (i) the person has 
made a financial transaction or has a security position, a money 
balance, or account activity with the member organization or at a 
clearing firm that provides clearing services to the member 
organization within the 18 months immediately preceding the date of 
an outbound telephone call; (b) the member organization is the 
broker-dealer of record for an account of the person within the 18 
months immediately preceding the date of an outbound telephone call; 
or (c) the person has contacted the member organization to inquire 
about a product or service offered by the member organization within 
the three months immediately preceding the date of an outbound 
telephone call. A person's established business relationship with a 
member organization does not extend to the member organization's 
affiliated entities unless the person would reasonably expect them 
to be included. Similarly, a person's established business 
relationship with a member organization's affiliate does not extend 
to the member organization unless the person would reasonably expect 
the member organization to be included. The term ``account 
activity'' includes, but is not limited to, purchases, sales, 
interest credits or debits, charges or credits, dividend payments, 
transfer activity, securities receipts or deliveries, and/or journal 
entries relating to securities or funds in the possession or control 
of the member organization. The term ``broker-dealer of record'' 
refers to the broker or dealer identified on a customer's account 
application for accounts held directly at a mutual fund or variable 
insurance product issuer. See proposed Rule 3230(m)(1), (4), and 
(12)--Equities; see also 16 CFR 310.2(o) and FINRA Rule 3230(m)(1), 
(4), and (12).
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    (2) Any person that previously has stated that he or she does not 
wish to receive an outbound telephone call made by or on behalf of the 
member organization; \18\ or
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    \18\ This restriction was previously included under Rule 
440A(a)--Equities. See the discussion below under Procedures.
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    (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.\19\ The 
FTC provided a discussion of the provision when it was adopted pursuant 
to the Prevention Act.\20\
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    \19\ See 16 CFR 310.4(b)(1)(iii)(A) and (B) and (c); see also 
FINRA Rule 3230(a).
    \20\ See Federal Trade Commission, Telemarketing Sales Rule, 68 
FR 4580 (Jan. 29, 2003) at 4628; and Federal Trade Commission, 
Telemarketing Sales Rule, 60 FR 43842 (Aug. 23, 1995) at 43855.
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National Do-Not-Call List Exceptions
    Proposed Rule 3230(b)--Equities provides that a member organization 
making outbound telephone calls will not be liable for initiating any 
outbound telephone call to any person who has registered his or her 
telephone number on the FTC's national do-not-call registry if:
    (1) The member organization has an established business 
relationship with the recipient of the call; \21\
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    \21\ A person's request to be placed on the firm-specific do-
not-call list terminates the established business relationship 
exception to that national do-not-call list provision for that 
member organization even if the person continues to do business with 
the member organization.
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    (2) The member organization has obtained the person's prior express 
invitation or permission; \22\ or
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    \22\ Such permission must be evidenced by a signed, written 
agreement (which may be obtained electronically under the E-Sign Act 
(See 15 U.S.C. 7001 et seq.) between the person and member 
organization which states that the person agrees to be contacted by 
the member organization and includes the telephone number to which 
the calls may be placed.
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    (3) The associated person making the call has a personal 
relationship \23\ with the recipient of the call.
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    \23\ The term ``personal relationship'' means any family member, 
friend, or acquaintance of the person making an outbound telephone 
call. See proposed Rule 3230(m)(18)--Equities; see also FINRA Rule 
3230(m)(18).
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    The proposed rule change modifies the established business 
relationship exception in Rule 440A--Equities and the definition for 
``established business relationships,'' which is substantially similar 
to the FTC's definition of that term.\24\ In addition, 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.\25\ The FTC provided a 
discussion of the provision when it

[[Page 41861]]

was adopted pursuant to the Prevention Act.\26\
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    \24\ See supra note 17; see also FINRA Rule 3230(a).
    \25\ See 16 CFR 310.4(b)(1)(iii)(B); see also FINRA Rule 
3230(b).
    \26\ See Federal Trade Commission, Telemarketing Sales Rule, 68 
FR 4580 (Jan. 29, 2003) at 4628; and Federal Trade Commission, 
Telemarketing Sales Rule, 60 FR 43842 (Aug. 23, 1995) at 43854.
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Safe Harbor Provision
    Proposed Rule 3230(c)--Equities provides that a member organization 
or person associated with a member organization making outbound 
telephone calls will not be liable for initiating any outbound 
telephone call to any person who has registered his or her telephone 
number on the FTC's national do-not-call registry if the member 
organization or person associated with a member organization 
demonstrates that the violation is the result of an error and that as 
part of the member organization's routine business practice, it meets 
the following standards:
    (1) The member organization has established and implemented written 
procedures to comply with the national do-not-call rules;
    (2) The member organization has trained its personnel, and any 
entity assisting in its compliance, in procedures established pursuant 
to the national do-not-call rules;
    (3) The member organization has maintained and recorded a list of 
telephone numbers that it may not contact; and
    (4) The member organization uses a process to prevent outbound 
telephone calls to any telephone number on any list established 
pursuant to the do-not-call rules, employing a version of the national 
do-not-call registry obtained from the administrator of the registry 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.\27\ The FTC provided a 
discussion of the provision when it was adopted pursuant to the 
Prevention Act.\28\
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    \27\ See 16 CFR 310.4(b)(1)(iii)(B); see also FINRA Rule 
3230(c).
    \28\ See Federal Trade Commission, Telemarketing Sales Rule, 68 
FR 4580 (Jan. 29, 2003) at 4628; and Federal Trade Commission, 
Telemarketing Sales Rule, 60 FR 43842 (Aug. 23, 1995) at 43855.
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Procedures
    Proposed Rule 3230(d)--Equities adopts procedures that member 
organizations must institute to comply with Rule 3230(a)--Equities 
prior to engaging in telemarketing. These procedures are substantially 
similar to the procedural requirements under Rule 440A(b)--Equities; 
however, the proposed rule change deletes the requirement that a member 
organization honor a firm-specific do-not-call request for five years 
from the time the request is made. Additionally, the proposed rule 
change clarifies that the request not to receive further calls would 
come from a person. The procedures must meet the following minimum 
standards:
    (1) Member organizations must have a written policy for maintaining 
their 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 
organization's do-not-call list.
    (3) If a member organization receives a request from a person not 
to receive calls from that member organization, the member organization 
must record the request and place the person's name, if provided, and 
telephone number on its do-not-call list at the time the request is 
made.\29\
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    \29\ Member organizations must honor a person's do-not-call 
request within a reasonable time from the date the request is made, 
which may not exceed 30 days from the date of the request. If these 
requests are recorded or maintained by a party other than the member 
organization on whose behalf the outbound telephone call is made, 
the member organization on whose behalf the outbound telephone call 
is made will still be liable for any failures to honor the do-not-
call request.
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    (4) Member organizations or persons associated with a member 
organization making an outbound telephone call must make certain caller 
disclosures set forth in Rule 3230(d)(4)--Equities.
    (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 
organization 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.
    A member organization 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 member organizations, as they are already 
subject to identical provisions under FCC telemarketing 
regulations.\30\
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    \30\ See 47 CFR 64.1200(d); see also FINRA Rule 3230(d).
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Wireless Communications
    Proposed Rule 3230(e)--Equities states that the provisions set 
forth in the rule are applicable to member organizations telemarketing 
or making telephone solicitations calls to wireless telephone numbers. 
In addition, proposed Rule 3230(e)--Equities clarifies that the 
application of the rule also applies to persons associated with a 
member organization making outbound telephone calls to wireless 
telephone numbers.\31\
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    \31\ See also FINRA Rule 3230(e).
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Outsourcing Telemarketing
    Rule 3230(f)--Equities states that if a member organization uses 
another entity to perform telemarketing services on its behalf, the 
member organization remains responsible for ensuring compliance with 
all provisions contained in the rule. Proposed Rule 3230(f)--Equities 
also clarifies that member organizations must consider whether the 
entity or person that a member organization uses for outsourcing, must 
be appropriately registered or licensed, where required.\32\
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    \32\ See also FINRA Rule 3230(f).
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Caller Identification Information
    Proposed Rule 3230(g)--Equities provides that any member 
organization that engages in telemarketing must transmit or cause to be 
transmitted the telephone number, and, when made available by the 
member organization's telephone carrier, the name of the member 
organization, to any caller identification service in use by a 
recipient of an outbound telephone call. The telephone number so 
provided must permit any person to make a do-not-call request during 
regular business hours. In addition, any member organization that 
engages in telemarketing is prohibited from blocking the transmission 
of caller identification information.\33\
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    \33\ Caller identification information includes the telephone 
number and, when made available by the member organization's 
telephone carrier, the name of the member organization.
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    These provisions are similar to the caller identification provision 
in the FTC rules.\34\ Inclusion of these caller identification 
provisions in this proposed rule change will not create any new 
obligations on member organizations, as they are already subject to 
identical provisions under FCC telemarketing regulations.\35\
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    \34\ See 16 CFR 310.4(a)(8); see also FINRA Rule 3230(g).
    \35\ See 47 CFR 64.1601(e).
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Unencrypted Consumer Account Numbers
    Proposed Rule 3230(h)--Equities prohibits a member organization or 
person associated with a member organization from disclosing or 
receiving, for consideration, unencrypted consumer account numbers for 
use in telemarketing. The proposed rule change is substantially

[[Page 41862]]

similar to the FTC's provision regarding unencrypted consumer account 
numbers.\36\ The FTC provided a discussion of the provision when it was 
adopted pursuant to the Prevention Act.\37\ 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.\38\
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    \36\ See 16 CFR 310.4(a)(6); see also FINRA Rule 3230(h).
    \37\ See Federal Trade Commission, Telemarketing Sales Rule, 68 
FR 4580 (January 29, 2003) at 4615.
    \38\ See id. at 4616.
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Submission of Billing Information
    The proposed rule change provides that, for any telemarketing 
transaction, no member organization or person associated with a member 
organization may submit billing information \39\ for payment without 
the express informed consent of the customer. Proposed Rule 3230(i)--
Equities requires, for any telemarketing transaction, a member 
organization or person associated with a member organization to 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 \40\ and a free-to-pay 
conversion \41\ feature, the member organization or person associated 
with a member organization must:
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    \39\ The term ``billing information'' means any data that 
enables any person to access a customer's or donor's account, such 
as a credit or debit card number, a brokerage, checking, or savings 
account number, or a mortgage loan account number. See proposed Rule 
3230(m)(3)--Equities.
    \40\ The term ``preacquired account information'' means any 
information that enables a member organization or person associated 
with a member organization to cause a charge to be placed against a 
customer's or donor's account without obtaining the account number 
directly from the customer or donor during the telemarketing 
transaction pursuant to which the account will be charged. See 
proposed Rule 3230(m)(19)--Equities.
    \41\ The term ``free-to-pay conversion'' means, in an offer or 
agreement to sell or provide any goods or services, a provision 
under which a customer receives a product or service for free for an 
initial period and will incur an obligation to pay for the product 
or service if he or she does not take affirmative action to cancel 
before the end of that period. See proposed Rule 3230(m)(13)--
Equities.
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    (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 organization or person associated with 
a member organization 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.\42\ The FTC 
provided a discussion of the provision when it was adopted pursuant to 
the Prevention Act.\43\
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    \42\ See 16 CFR 310.4(a)(7); see also FINRA Rule 3230(i).
    \43\ See Federal Trade Commission, Telemarketing Sales Rule, 68 
FR 4580 (January 29, 2003) at 4615.
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Abandoned Calls
    Proposed Rule 3230(j)--Equities prohibits a member organization or 
person associated with a member organization from abandoning \44\ any 
outbound telemarketing call. The abandoned calls prohibition is subject 
to a ``safe harbor'' under proposed subparagraph (j)(2) that requires:
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    \44\ An outbound telephone call is ``abandoned'' if the called 
person answers it and the call is not connected to a member 
organization or person associated with a member organization within 
two seconds of the called person's completed greeting.
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    (1) The member organization or person associated with a member 
organization 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) The member organization or person associated with a member 
organization, for each telemarketing call placed, allows the telephone 
to ring for at least 15 seconds or four rings before disconnecting an 
unanswered call;
    (3) Whenever a person associated with a member organization is not 
available to speak with the person answering the telemarketing call 
within two seconds after the person's completed greeting, the member 
organization or person associated with a member organization promptly 
plays a recorded message stating the name and telephone number of the 
member organization or person associated with a member organization on 
whose behalf the call was placed; and
    (4) The member organization to maintain records documenting 
compliance with the ``safe harbor.''
    The proposed rule change is substantially similar to the FTC's 
provisions regarding abandoned calls.\45\ The FTC provided a discussion 
of the provisions when they were adopted pursuant to the Prevention 
Act.\46\
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    \45\ See 16 CFR 310.4(b)(1)(iv); see also 16 CFR 310.4(b)(4).
    \46\ See Federal Trade Commission, Telemarketing Sales Rule, 68 
FR 4580 (January 29, 2003) at 4641.
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Prerecorded Messages
    Proposed Rule 3230(k)--Equities prohibits a member organization or 
person associated with a member organization from initiating any 
outbound telemarketing call that delivers a prerecorded message without 
a person's express written agreement \47\ to receive such calls. The 
proposed rule change also requires that all prerecorded telemarketing 
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 subparagraph (j)(2).
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    \47\ The express written agreement must: (a) Have been obtained 
only after a clear and conspicuous disclosure that the purpose of 
the agreement is to authorize the member organization to place 
prerecorded calls to such person; (b) have been obtained without 
requiring, directly or indirectly, that the agreement be executed as 
a condition of purchasing any good or service; (c) evidence the 
willingness of the called person to receive calls that deliver 
prerecorded messages by or on behalf of the member organization; and 
(d) include the person's telephone number and signature (which may 
be obtained electronically under the E-Sign Act).
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    The proposed rule change is substantially similar to the FTC's 
provisions regarding prerecorded messages.\48\ The FTC provided a 
discussion of the provisions when they were adopted pursuant to the 
Prevention Act.\49\
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    \48\ See 16 CFR 310.4(b)(1)(v); see also FINRA Rule 3230(k).
    \49\ See Federal Trade Commission, Telemarketing Sales Rule, 73 
FR 51164 (August 29, 2008) at 51165.
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Credit Card Laundering
    Proposed Rule 3230(l)--Equities prohibits credit card laundering, 
the practice of depositing into the credit card system \50\ a sales 
draft that is not the result of a credit card transaction

[[Page 41863]]

between the cardholder \51\ and the member organization. Except as 
expressly permitted, the proposed rule change prohibits a member 
organization or person associated with a member organization from:
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    \50\ The term ``credit card system'' means any method or 
procedure used to process credit card transactions involving credit 
cards issued or licensed by the operator of that system. The term 
``credit card'' means any card, plate, coupon book, or other credit 
device existing for the purpose of obtaining money, property, labor, 
or services on credit. The term ``credit'' means the right granted 
by a creditor to a debtor to defer payment of debt or to incur debt 
and defer its payment. See proposed Rule 3230(m)(7), (8), and (10)--
Equities.
    \51\ The term ``cardholder'' means a person to whom a credit 
card is issued or who is authorized to use a credit card on behalf 
of or in addition to the person to whom the credit card is issued. 
See proposed Rule 3230(m)(6)--Equities.
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    (1) Presenting to or depositing into, the credit card system for 
payment, a credit card sales draft \52\ generated by a telemarketing 
transaction that is not the result of a telemarketing credit card 
transaction between the cardholder and the member organization;
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    \52\ The term ``credit card sales draft'' means any record or 
evidence of a credit card transaction. See proposed Rule 
3230(m)(9)--Equities.
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    (2) Employing, soliciting, or otherwise causing a merchant,\53\ 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 merchant; or
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    \53\ The term ``merchant'' means a person who is authorized 
under written contract with an acquirer to honor or accept credit 
cards, or to transmit or process for payment credit card payments, 
for the purchase of goods or services or a charitable contribution. 
The term ``acquirer'' means a business organization, financial 
institution, or an agent of a business organization or financial 
institution that has authority from an organization that operates or 
licenses a credit card system to authorize merchants to accept, 
transmit, or process payment by credit card through the credit card 
system for money, goods or services, or anything else of value. A 
``charitable contribution'' means any donation or gift of money or 
any other thing of value, for example a transfer to a pooled income 
fund. See proposed Rule 3230(m)(2) and (14)--Equities.
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    (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 \54\ or the 
applicable credit card system.
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    \54\ The term ``merchant agreement'' means a written contract 
between a merchant and an acquirer to honor or accept credit cards, 
or to transmit or process for payment credit card payments, for the 
purchase of goods or services or charitable contribution. See 
proposed Rule 3230(m)(15)--Equities.
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    The proposed rule change is substantially similar to the FTC's 
provisions regarding credit card laundering.\55\ The FTC provided a 
discussion of the provisions when they were adopted pursuant to the 
Prevention Act.\56\
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    \55\ See 16 CFR 310.2; see also FINRA Rule 3230(l).
    \56\ See Federal Trade Commission, Telemarketing Sales Rule, 60 
FR 43842 (August 23, 1995) at 43852.
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Definitions
    Proposed Rule 3230(m)--Equities 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,'' and 
telemarketing''.\57\ The FTC provided a discussion of each definition 
when they were adopted pursuant to the Prevention Act.
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    \57\ See proposed Rule 3230(m)(2), (3), (5), (6), (7), (8), (9), 
(10), (11), (12), (13), (14), (15), (16), (17), (19), and (20)--
Equities; and 16 CFR 310.2(a), (c), (d), (e), (f), (h), (i), (j), 
(k), (l), (n), (o), (p), (s), (t), (v), (w), (x), and (dd); see also 
FINRA Rule 3230(m)(2), (3), (5), (6), (7), (8), (9), (10), (11), 
(12), (13), (14), (15), (16), (17), (19), and (20). The proposed 
rule change also adopts definitions of ``account activity,'' 
``broker-dealer of record,'' and ``personal relationship'' that are 
substantially similar to FINRA's definitions of these terms. See 
proposed Rule 3230(m)(1), (4), and (18)--Equities and FINRA Rule 
3230(m)(1), (4), and (18); see also 47 CFR 64.1200(t)(14) (FCC's 
definition of ``personal relationship'').
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    The Exchange proposes make Rule 3230--Equities effective on the 
same date as FINRA makes FINRA Rule 3230 effective.\58\
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    \58\ See supra note 4.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) of the Exchange Act \59\ in general, and furthers the 
objectives of Section 6(b)(5) \60\ in particular, in that it is 
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 facilitating transactions in 
securities, and to remove impediments to and perfect the mechanism of a 
free and open market and a national market system. Specifically, the 
Exchange believes that the proposed rule change supports the objectives 
of the Exchange Act by providing greater harmonization between NYSE MKT 
Equities Rules and FINRA Rules of similar purpose, resulting in less 
burdensome and more efficient regulatory compliance. In particular, 
NYSE MKT member organizations that are also FINRA members are subject 
to both Rule 440A--Equities and FINRA Rule 3230 and harmonizing these 
two rules would promote just and equitable principles of trade by 
requiring a single standard for telemarketing. In addition, adopting 
Rule 3230--Equities will assure that the Exchange's rules governing 
telemarketing meet the standards set forth in the Prevention Act. To 
the extent the Exchange has proposed changes that differ from the FINRA 
version of the NYSE MKT Equities Rules, it believes such changes are 
technical in nature and do not change the substance of the proposed 
NYSE MKT Equities Rules. The Exchange also believes that the proposed 
rule change will update and clarify the requirements governing 
telemarketing, which will promote just and equitable principles of 
trade and help to protect investors.
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    \59\ 15 U.S.C. 78f(b).
    \60\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange 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 Exchange 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 written comments with 
respect to the proposed rule change.

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

    The Exchange has filed the proposed rule change pursuant to Section 
19(b)(3)(A)(iii) of the Exchange Act \61\ and Rule 19b-4(f)(6) 
thereunder.\62\ Because the proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative prior to 30 days from the date on which it was filed, 
or such shorter time as the Commission may designate, if consistent 
with the protection of investors and the public interest, the proposed 
rule change has become effective pursuant to Section 19(b)(3)(A) of the 
Exchange Act and Rule 19b-4(f)(6)(iii) thereunder.
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    \61\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \62\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) \63\ normally 
does not become operative prior to 30 days after the date of the 
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\64\ the Commission 
may designate a shorter time if such action is consistent with the 
protection of investors and the public

[[Page 41864]]

interest. The Exchange has asked the Commission to waive the 30-day 
operative delay so that the proposal may become operative immediately 
upon filing.
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    \63\ 17 CFR 240.19b-4(f)(6).
    \64\ 17 CFR 240.19b-4(f)(6)(iii).
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    At any time within 60 days of the filing of such proposed rule 
change, the Commission summarily 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 Exchange Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Exchange 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 Number SR-NYSEMKT-2012-03 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-NYSEMKT-2012-03. 
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 Internet 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 Section, 100 
F Street NE., Washington, DC 20549-1090 on official business days 
between the hours of 10 a.m. and 3 p.m. Copies of the filing will also 
be available for inspection and copying at the NYSE's principal office 
and on its Internet Web site at www.nyse.com. 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-NYSEMKT-2012-03 and 
should be submitted on or before August 6, 2012.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\65\
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    \65\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-17176 Filed 7-13-12; 8:45 am]
BILLING CODE 8011-01-P


