Text: HF02468 Text: HF02470 Text: HF02400 - HF02499 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 shall be placed on that listing
2 26 upon receipt by the department of a five dollar initial
2 27 listing fee. The listing shall be renewed by the department
2 28 biannually for each consumer upon receipt of a renewal request
2 29 accompanied by 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. The department, by rule, shall establish a fee to be
2 34 imposed on all telephone solicitors sufficient to pay for the
2 35 costs associated with the administration and maintenance of
3 1 the "no sales solicitation calls" listing.
3 2 d. A fee imposed and collected under this section shall be
3 3 deposited in the general fund of the state and is appropriated
3 4 to the department for the administration of this section.
3 5 4. A telephone solicitor shall not make or cause to be
3 6 made any unsolicited telephonic sales call to any residential,
3 7 mobile, or telephonic paging device telephone number if the
3 8 number for that telephone appears in the then current
3 9 quarterly listing published by the department. A telephone
3 10 solicitor or person who offers for sale consumer information
3 11 which includes residential, mobile, or telephonic paging
3 12 device telephone numbers, except directory assistance and
3 13 telephone directories sold by a telephone company or an
3 14 organization exempt under } 501(c)(3) or (6) of the Internal
3 15 Revenue Code, shall screen and exclude those numbers which
3 16 appear on the division's then current "no sales solicitation
3 17 calls" list from any consumer information offer or sold. This
3 18 subsection does not apply to a person licensed pursuant to
3 19 chapter 543B who calls an actual or prospective seller or
3 20 lessor of real property if such call is made in response to a
3 21 yard sign or other form of real estate sales advertisement
3 22 placed by the seller or lessor.
3 23 5. a. A contract made pursuant to a telephonic sales call
3 24 is not valid and enforceable against a consumer unless made in
3 25 compliance with this subsection.
3 26 b. A contract made pursuant to a telephonic sales call
3 27 must satisfy all of the following:
3 28 (1) The contract must be reduced to writing and signed by
3 29 the consumer.
3 30 (2) The contract must comply with all other applicable
3 31 laws and rules.
3 32 (3) The contract must match the description of goods or
3 33 services as principally used in the telephone solicitation.
3 34 (4) The contract must contain the name, address, and
3 35 telephone number of the seller, the total price of the
4 1 contract, and a detailed description of the goods or services
4 2 being sold.
4 3 (5) The contract must contain, in bold, conspicuous type,
4 4 immediately preceding the signature, the following statement:
4 5 "You are not obligated to pay any money unless you sign
4 6 this contract and return it to the seller."
4 7 (6) The contract must not exclude from its terms any oral
4 8 or written representations made by the telephone solicitor to
4 9 the consumer in connection with the transaction.
4 10 c. This subsection does not apply to contractual sales
4 11 specifically regulated by other law, or to the sale of cable
4 12 television services to a franchised cable television
4 13 operator's existing subscribers within that cable television
4 14 operator's franchise area, or to any sales where no prior
4 15 payment is made to the merchant and an invoice accompanies the
4 16 goods or services allowing the consumer no less than seven
4 17 days to cancel or return the goods or services without
4 18 obligation for any payment.
4 19 6. a. A merchant who engages a telephone solicitor to
4 20 make or cause to be made a telephonic sales call shall not
4 21 make or submit any charge to a consumer's credit card account
4 22 or make or cause to be made any electronic transfer of funds
4 23 until after the merchant receives from the consumer a copy of
4 24 the contract, signed by the consumer, which complies with this
4 25 section.
4 26 b. This subsection does not apply to any of the following:
4 27 (1) A transaction made pursuant to prior negotiations in
4 28 the course of a visit by the consumer to a merchant operating
4 29 a retail business establishment which has a fixed permanent
4 30 location and where consumer goods are displayed or offered for
4 31 sale on a continuing basis.
4 32 (2) A transaction in which the consumer may obtain a full
4 33 refund for the return of undamaged and unused goods or a
4 34 cancellation of services notice to the seller within seven
4 35 days after receipt by the consumer, and the seller will
5 1 process the refund within thirty days after receipt of the
5 2 returned merchandise by the consumer.
5 3 (3) A transaction in which the consumer purchases goods or
5 4 services pursuant to an examination of a television, radio, or
5 5 print advertisement or a sample, brochure, or catalog of the
5 6 merchant that contains all of the following:
5 7 (a) The name, address, and telephone number of the
5 8 merchant.
5 9 (b) A description of the goods or services being sold.
5 10 (c) Any limitations or restrictions that apply to the
5 11 offer.
5 12 (4) A transaction in which the merchant is a bona fide
5 13 charitable organization or a newspaper.
5 14 7. a. Except as otherwise provided in paragraph "b", a
5 15 person shall not make or knowingly allow a telephonic sales
5 16 call to be made using automatic dialing-announcing device
5 17 equipment for the selection or dialing of telephone numbers or
5 18 the playing of a recorded message when a connection is
5 19 completed to a telephone number called.
5 20 b. This subsection does not prohibit the use of an
5 21 automatic dialing-announcing device as provided in section
5 22 476.57 so long as the telephone numbers selected for automatic
5 23 dialing have been screened to exclude any telephone subscriber
5 24 who is included on the department's then current "no sales
5 25 solicitation calls" listing or any unlisted telephone number,
5 26 or if the calls made concern a good or service that has been
5 27 previously ordered or purchased.
5 28 8. The department shall investigate any complaints
5 29 received concerning a violation of this section. If, after
5 30 investigating a complaint, the department finds that there has
5 31 been a violation of this section, the department may bring an
5 32 action to impose a civil penalty and to seek other relief,
5 33 including injunctive relief, as the court deems appropriate
5 34 against the telephone solicitor. A civil penalty imposed for
5 35 a violation shall not exceed ten thousand dollars per
6 1 violation and shall be deposited in the general fund of the
6 2 state. The department may waive a civil penalty if the
6 3 violator has previously made full restitution or reimbursement
6 4 or has paid actual damages to a consumer who was injured as a
6 5 result of the violation.
6 6 9. a. In a civil action resulting from a transaction
6 7 involving a violation of this section, the prevailing party,
6 8 after judgment in the trial court and exhaustion of all
6 9 appeals, if any, is entitled to costs and reasonable attorney
6 10 fees.
6 11 b. In a civil action initiated by the department, the
6 12 court may award to the prevailing party reasonable attorney
6 13 fees and costs if the court finds that there was no
6 14 justiciable issue of either law or fact raised by the losing
6 15 party or if the court finds that the losing party acted in bad
6 16 faith.
6 17 10. The board shall by rule ensure that telecommunications
6 18 providers inform their customers of the customers' rights
6 19 under this section. The notification shall be made by both of
6 20 the following:
6 21 a. Annual inserts in the billing statements mailed to
6 22 customers.
6 23 b. Conspicuous publication of the notice in the consumer
6 24 information pages of the local telephone directories.
6 25 EXPLANATION
6 26 This bill creates new Code section 476B.1 and establishes
6 27 restrictions on telephone solicitations.
6 28 The bill provides that a telephone solicitor who makes an
6 29 unsolicited telephonic sales call to a residential, mobile, or
6 30 telephonic paging device telephone number shall identify the
6 31 solicitor's self by the solicitor's true first and last name,
6 32 and the business on whose behalf the solicitor is making the
6 33 sales call, immediately upon making contact by telephone with
6 34 the person who is the object of the telephone solicitation.
6 35 The bill provides that a residential, mobile, or telephonic
7 1 paging device telephone subscriber desiring to be placed on a
7 2 "no sales solicitation calls" listing indicating that the
7 3 subscriber does not wish to receive unsolicited telephonic
7 4 sales calls may notify the department and be placed on that
7 5 listing upon receipt by the department of a $5 initial listing
7 6 fee. The listing shall be renewed by the department annually
7 7 for each consumer upon receipt of a renewal request
7 8 accompanied by a $5 renewal fee.
7 9 The bill provides that the department, by rule, shall
7 10 establish a fee to be imposed on all telephone solicitors
7 11 sufficient to pay for the costs associated with the
7 12 administration and maintenance of the "no sales solicitation
7 13 calls" listing.
7 14 The bill provides that a telephone solicitor shall not make
7 15 or cause to be made any unsolicited telephonic sales call to
7 16 any residential, mobile, or telephonic paging device telephone
7 17 number if the number for that telephone appears in the then
7 18 current quarterly listing published by the department. The
7 19 bill excludes from this prohibition a person licensed pursuant
7 20 to Code chapter 543B who calls an actual or prospective seller
7 21 or lessor of real property when such call is made in response
7 22 to a yard sign or other form of advertisement placed by the
7 23 seller or lessor.
7 24 The bill provides that a contract made pursuant to a
7 25 telephonic sales call must be reduced to writing and signed by
7 26 the consumer; must comply with all other applicable laws and
7 27 rules; must match the description of goods or services as
7 28 principally used in the telephone solicitation; must contain
7 29 the name, address, and telephone number of the seller, the
7 30 total price of the contract, and a detailed description of the
7 31 goods or services being sold; must contain, in bold,
7 32 conspicuous type, immediately preceding the signature, the
7 33 statement "You are not obligated to pay any money unless you
7 34 sign this contract and return it to the seller."; and the
7 35 contract shall not exclude from its terms any oral or written
8 1 representations made by the telephone solicitor to the
8 2 consumer in connection with the transaction.
8 3 The bill provides that the department of commerce is to
8 4 investigate any complaints received concerning a violation of
8 5 this section. If, after investigating a complaint, the
8 6 department finds that there has been a violation of this
8 7 section, the department may bring an action to impose a civil
8 8 penalty and to seek other relief, including injunctive relief,
8 9 as the court deems appropriate against the telephone
8 10 solicitor. A civil penalty imposed for a violation shall not
8 11 exceed $10,000 per violation and shall be deposited in the
8 12 general fund of the state.
8 13 LSB 6235HH 78
8 14 mj/cf/23
Text: HF02468 Text: HF02470 Text: HF02400 - HF02499 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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