Text: HF00578 Text: HF00580 Text: HF00500 - HF00599 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 Section 1. NEW SECTION. 476B.1 TELEPHONE SOLICITATION
1 2 RESTRICTIONS.
1 3 1. As used in this section, unless the context otherwise
1 4 requires:
1 5 a. "Board" means the utilities board created in section
1 6 474.1.
1 7 b. "Consumer" means an actual or prospective purchaser,
1 8 lessee, or recipient of a consumer good or service.
1 9 c. "Consumer good or service" means any real property or
1 10 any tangible or intangible personal property which is normally
1 11 used for personal, family, or household purposes, including,
1 12 without limitation, any such property intended to be attached
1 13 to or installed in any real property without regard to whether
1 14 it is so attached or installed, as well as cemetery lots and
1 15 timeshare estates, and any service related to such property.
1 16 d. "Department" means the department of commerce.
1 17 e. "Doing business in this state" means a business which
1 18 conducts telephonic sales calls from a location in this state
1 19 or from other states or nations to consumers located in this
1 20 state.
1 21 f. "Merchant" means a person who, directly or indirectly,
1 22 offers or makes available to a consumer any consumer good or
1 23 service.
1 24 g. "Telephone solicitor" means a person doing business in
1 25 this state, who makes or causes to be made a telephonic sales
1 26 call, including, but not limited to, calls made by use of
1 27 automatic dialing-announcing device equipment.
1 28 h. "Telephonic sales call" means a call made by a
1 29 telephone solicitor to a consumer for any of the following
1 30 purposes:
1 31 (1) To solicit a sale of a consumer good or service.
1 32 (2) To offer an extension of credit for a consumer good or
1 33 service.
1 34 (3) To obtain information that will or may be used for the
1 35 direct solicitation of a sale of a consumer good or service or
2 1 an offer of extension of credit for such purpose.
2 2 i. "Unsolicited telephonic sales call" means a telephonic
2 3 sales call other than a call made as follows:
2 4 (1) In response to an express request of the person
2 5 called.
2 6 (2) Primarily in connection with an existing debt or
2 7 contract, payment, or performance of which has not been
2 8 completed at the time of such call.
2 9 (3) To a person with whom the telephone solicitor has a
2 10 prior or existing business relationship.
2 11 (4) By a newspaper publisher or such publisher's agent or
2 12 employee in connection with the publisher's business.
2 13 2. A telephone solicitor who makes an unsolicited
2 14 telephonic sales call to a residential, mobile, or telephonic
2 15 paging device telephone number shall identify the solicitor's
2 16 self by the solicitor's true first and last name, and the
2 17 business on whose behalf the solicitor is making the
2 18 telephonic sales call, immediately upon making contact by
2 19 telephone with the person who is the object of the telephone
2 20 solicitation.
2 21 3. a. A residential, mobile, or telephonic paging device
2 22 telephone subscriber desiring to be placed on a "no sales
2 23 solicitation calls" listing indicating that the subscriber
2 24 does not wish to receive unsolicited telephonic sales calls
2 25 may notify the department and be placed on that listing upon
2 26 receipt by the department of a ten dollar initial listing fee.
2 27 The listing shall be renewed by the department annually for
2 28 each consumer upon receipt of a renewal request accompanied by
2 29 a five dollar renewal fee.
2 30 b. The department shall update its "no sales solicitation
2 31 calls" listing upon receipt of an initial listing or renewal
2 32 request made by a consumer.
2 33 c. A fee imposed and collected under this section shall be
2 34 deposited in the general fund of the state and is appropriated
2 35 to the department for the administration of this section.
3 1 4. A telephone solicitor shall not make or cause to be
3 2 made any unsolicited telephonic sales call to any residential,
3 3 mobile, or telephonic paging device telephone number if the
3 4 number for that telephone appears in the then current
3 5 quarterly listing published by the department. A telephone
3 6 solicitor or person who offers for sale consumer information
3 7 which includes residential, mobile, or telephonic paging
3 8 device telephone numbers, except directory assistance and
3 9 telephone directories sold by a telephone company or an
3 10 organization exempt under } 501(c)(3) or (6) of the Internal
3 11 Revenue Code, shall screen and exclude those numbers which
3 12 appear on the division's then current "no sales solicitation
3 13 calls" list from any consumer information offer or sold. This
3 14 subsection does not apply to a person licensed pursuant to
3 15 chapter 543B who calls an actual or prospective seller or
3 16 lessor of real property if such call is made in response to a
3 17 yard sign or other form of real estate sales advertisement
3 18 placed by the seller or lessor.
3 19 5. a. A contract made pursuant to a telephonic sales call
3 20 is not valid and enforceable against a consumer unless made in
3 21 compliance with this subsection.
3 22 b. A contract made pursuant to a telephonic sales call
3 23 must satisfy all of the following:
3 24 (1) The contract must be reduced to writing and signed by
3 25 the consumer.
3 26 (2) The contract must comply with all other applicable
3 27 laws and rules.
3 28 (3) The contract must match the description of goods or
3 29 services as principally used in the telephone solicitation.
3 30 (4) The contract must contain the name, address, and
3 31 telephone number of the seller, the total price of the
3 32 contract, and a detailed description of the goods or services
3 33 being sold.
3 34 (5) The contract must contain, in bold, conspicuous type,
3 35 immediately preceding the signature, the following statement:
4 1 "You are not obligated to pay any money unless you sign
4 2 this contract and return it to the seller."
4 3 (6) The contract must not exclude from its terms any oral
4 4 or written representations made by the telephone solicitor to
4 5 the consumer in connection with the transaction.
4 6 c. This subsection does not apply to contractual sales
4 7 specifically regulated by other law, or to the sale of
4 8 financial services, security sales, or sales transacted by
4 9 insurance companies or their wholly owned subsidiaries or
4 10 agents, or to the sale of cable television services to a
4 11 franchised cable television operator's existing subscribers
4 12 within that cable television operator's franchise area, or to
4 13 any sales where no prior payment is made to the merchant and
4 14 an invoice accompanies the goods or services allowing the
4 15 consumer no less than seven days to cancel or return the goods
4 16 or services without obligation for any payment.
4 17 6. a. A merchant who engages a telephone solicitor to
4 18 make or cause to be made a telephonic sales call shall not
4 19 make or submit any charge to a consumer's credit card account
4 20 or make or cause to be made any electronic transfer of funds
4 21 until after the merchant receives from the consumer a copy of
4 22 the contract, signed by the consumer, which complies with this
4 23 section.
4 24 b. This subsection does not apply to any of the following:
4 25 (1) A transaction made pursuant to prior negotiations in
4 26 the course of a visit by the consumer to a merchant operating
4 27 a retail business establishment which has a fixed permanent
4 28 location and where consumer goods are displayed or offered for
4 29 sale on a continuing basis.
4 30 (2) A transaction in which the consumer may obtain a full
4 31 refund for the return of undamaged and unused goods or a
4 32 cancellation of services notice to the seller within seven
4 33 days after receipt by the consumer, and the seller will
4 34 process the refund within thirty days after receipt of the
4 35 returned merchandise by the consumer.
5 1 (3) A transaction in which the consumer purchases goods or
5 2 services pursuant to an examination of a television, radio, or
5 3 print advertisement or a sample, brochure, or catalog of the
5 4 merchant that contains all of the following:
5 5 (a) The name, address, and telephone number of the
5 6 merchant.
5 7 (b) A description of the goods or services being sold.
5 8 (c) Any limitations or restrictions that apply to the
5 9 offer.
5 10 (4) A transaction in which the merchant is a bona fide
5 11 charitable organization or a newspaper.
5 12 7. a. Except as otherwise provided in paragraph "b", a
5 13 person shall not make or knowingly allow a telephonic sales
5 14 call to be made using automatic dialing-announcing device
5 15 equipment for the selection or dialing of telephone numbers or
5 16 the playing of a recorded message when a connection is
5 17 completed to a telephone number called.
5 18 b. This subsection does not prohibit the use of an
5 19 automatic dialing-announcing device as provided in section
5 20 476.57 so long as the telephone numbers selected for automatic
5 21 dialing have been screened to exclude any telephone subscriber
5 22 who is included on the department's then current "no sales
5 23 solicitation calls" listing or any unlisted telephone number,
5 24 or if the calls made concern a good or service that has been
5 25 previously ordered or purchased.
5 26 8. The department shall investigate any complaints
5 27 received concerning a violation of this section. If, after
5 28 investigating a complaint, the department finds that there has
5 29 been a violation of this section, the department may bring an
5 30 action to impose a civil penalty and to seek other relief,
5 31 including injunctive relief, as the court deems appropriate
5 32 against the telephone solicitor. A civil penalty imposed for
5 33 a violation shall not exceed ten thousand dollars per
5 34 violation and shall be deposited in the general fund of the
5 35 state. The department may waive a civil penalty if the
6 1 violator has previously made full restitution or reimbursement
6 2 or has paid actual damages to a consumer who was injured as a
6 3 result of the violation.
6 4 9. a. In a civil action resulting from a transaction
6 5 involving a violation of this section, the prevailing party,
6 6 after judgment in the trial court and exhaustion of all
6 7 appeals, if any, is entitled to costs and reasonable attorney
6 8 fees.
6 9 b. In a civil action initiated by the department, the
6 10 court may award to the prevailing party reasonable attorney
6 11 fees and costs if the court finds that there was no
6 12 justiciable issue of either law or fact raised by the losing
6 13 party or if the court finds that the losing party acted in bad
6 14 faith.
6 15 10. The board shall by rule ensure that telecommunications
6 16 providers inform their customers of the customers' rights
6 17 under this section. The notification shall be made by both of
6 18 the following:
6 19 a. Annual inserts in the billing statements mailed to
6 20 customers.
6 21 b. Conspicuous publication of the notice in the consumer
6 22 information pages of the local telephone directories.
6 23 EXPLANATION
6 24 This bill creates new Code section 476B.1 and establishes
6 25 restrictions on telephone solicitations.
6 26 The bill provides that a telephone solicitor who makes an
6 27 unsolicited telephonic sales call to a residential, mobile, or
6 28 telephonic paging device telephone number shall identify the
6 29 solicitor's self by the solicitor's true first and last name,
6 30 and the business on whose behalf the solicitor is making the
6 31 sales call, immediately upon making contact by telephone with
6 32 the person who is the object of the telephone solicitation.
6 33 The bill provides that a residential, mobile, or telephonic
6 34 paging device telephone subscriber desiring to be placed on a
6 35 "no sales solicitation calls" listing indicating that the
7 1 subscriber does not wish to receive unsolicited telephonic
7 2 sales calls may notify the department and be placed on that
7 3 listing upon receipt by the department of a $10 initial
7 4 listing fee. The listing shall be renewed by the department
7 5 annually for each consumer upon receipt of a renewal request
7 6 accompanied by a $5 renewal fee.
7 7 The bill provides that a telephone solicitor shall not make
7 8 or cause to be made any unsolicited telephonic sales call to
7 9 any residential, mobile, or telephonic paging device telephone
7 10 number if the number for that telephone appears in the then
7 11 current quarterly listing published by the department. The
7 12 bill excludes from this prohibition a person licensed pursuant
7 13 to Code chapter 543B who calls an actual or prospective seller
7 14 or lessor of real property when such call is made in response
7 15 to a yard sign or other form of advertisement placed by the
7 16 seller or lessor.
7 17 The bill provides that a contract made pursuant to a
7 18 telephonic sales call must be reduced to writing and signed by
7 19 the consumer; must comply with all other applicable laws and
7 20 rules; must match the description of goods or services as
7 21 principally used in the telephone solicitation; must contain
7 22 the name, address, and telephone number of the seller, the
7 23 total price of the contract, and a detailed description of the
7 24 goods or services being sold; must contain, in bold,
7 25 conspicuous type, immediately preceding the signature, the
7 26 statement "You are not obligated to pay any money unless you
7 27 sign this contract and return it to the seller."; and the
7 28 contract shall not exclude from its terms any oral or written
7 29 representations made by the telephone solicitor to the
7 30 consumer in connection with the transaction.
7 31 The bill provides that the department of commerce is to
7 32 investigate any complaints received concerning a violation of
7 33 this section. If, after investigating a complaint, the
7 34 department finds that there has been a violation of this
7 35 section, the department may bring an action to impose a civil
8 1 penalty and to seek other relief, including injunctive relief,
8 2 as the court deems appropriate against the telephone
8 3 solicitor. A civil penalty imposed for a violation shall not
8 4 exceed $10,000 per violation and shall be deposited in the
8 5 general fund of the state.
8 6 LSB 2714HH 78
8 7 mj/cf/23
Text: HF00578 Text: HF00580 Text: HF00500 - HF00599 Text: HF Index Bills and Amendments: General Index Bill History: General Index
© 1999 Cornell College and League of Women Voters of Iowa
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