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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. "Division" means the utilities division of the
1 17 department of commerce.
1 18 e. "Doing business in this state" means a business which
1 19 conducts telephone solicitations from a location in this state
1 20 or from other states or nations to consumers located in this
1 21 state.
1 22 f. "Merchant" means a person who, directly or indirectly,
1 23 offers or makes available to a consumer any consumer good or
1 24 service.
1 25 g. "Telephone solicitation" means any voice communication
1 26 over a telephone for the purpose of encouraging the purchase
1 27 or rental of, or investment in, property, goods, services,
1 28 wherever originated, and includes any of the following
1 29 purposes:
1 30 (1) To solicit a sale of a consumer good or service.
1 31 (2) To offer an extension of credit for a consumer good or
1 32 service.
1 33 (3) To obtain information that will or may be used for the
1 34 direct solicitation of a sale of a consumer good or service or
1 35 an offer of extension of credit for such purpose.
2 1 h. "Telephone solicitor" means a person doing business in
2 2 this state, who makes or causes to be made a telephone
2 3 solicitation, including, but not limited to, calls made by use
2 4 of automatic dialing-announcing device equipment.
2 5 i. "Unsolicited telephone solicitation" means a telephone
2 6 solicitation other than a call made as follows:
2 7 (1) In response to an express request of the person
2 8 called.
2 9 (2) Primarily in connection with an existing debt or
2 10 contract, payment, or performance of which has not been
2 11 completed at the time of such call.
2 12 (3) To a person with whom the telephone solicitor has a
2 13 prior or existing business relationship.
2 14 (4) To a residential subscriber if the telephone
2 15 solicitation is made on behalf of a not-for-profit
2 16 organization exempt from paying taxes under section 501(c) of
2 17 the Internal Revenue Code, and if a bona fide member of the
2 18 exempt organization makes such communication.
2 19 2. a. A telephone solicitor who makes an unsolicited
2 20 telephone solicitation to a residential, mobile, or telephonic
2 21 paging device telephone number shall identify the telephone
2 22 solicitor's self by the telephone solicitor's true first and
2 23 last name, and the business on whose behalf the telephone
2 24 solicitor is making the unsolicited telephone solicitation,
2 25 immediately upon making contact by telephone with the person
2 26 who is the object of the unsolicited telephone solicitation.
2 27 b. (1) The division shall establish and maintain a "no
2 28 telephone solicitation calls" listing as provided in this
2 29 subsection. The division may enter into an agreement with
2 30 another person to maintain the "no telephone solicitation
2 31 calls" listing, as deemed appropriate by the division. A
2 32 consumer who is a residential, mobile, or telephonic paging
2 33 device telephone subscriber desiring to be placed on a "no
2 34 telephone solicitation calls" listing indicating that the
2 35 consumer does not wish to receive unsolicited telephone
3 1 solicitations shall notify the division and be placed on that
3 2 listing upon receipt by the division of a ten dollar initial
3 3 listing fee. The inclusion of a consumer on the listing may
3 4 be renewed by such consumer annually upon submitting a renewal
3 5 request to the division accompanied by a five dollar renewal
3 6 fee.
3 7 (2) The division shall update its "no telephone
3 8 solicitation calls" listing on a quarterly basis, including
3 9 initial listing and renewal requests submitted by consumers to
3 10 the division during the calendar quarter immediately preceding
3 11 the date of such updating. The division, upon request, shall
3 12 provide a copy of the most current quarterly listing for a fee
3 13 as established by the division to a telephone solicitor
3 14 requesting such list, in either a printed or electronic form.
3 15 (3) A fee imposed and collected under this section shall
3 16 be deposited in the general fund of the state and is
3 17 appropriated to the division, limited to an amount which is
3 18 sufficient for the administration of this section.
3 19 (4) If, pursuant to 47 U.S.C. } 227(c)(3), the federal
3 20 communications commission establishes a single national
3 21 database of telephone numbers of consumers who object to
3 22 receiving telephone solicitations, the commission shall
3 23 include the portion of such national database including
3 24 consumer telephone numbers located in this state in the "no
3 25 telephone solicitation calls" listing established and
3 26 maintained by the division.
3 27 c. A telephone solicitor shall not make or cause to be
3 28 made any unsolicited telephone solicitations to any
3 29 residential, mobile, or telephonic paging device telephone
3 30 number if the number for that telephone appears in the current
3 31 quarterly listing provided by the division. A telephone
3 32 solicitor or person who offers for sale consumer information
3 33 which includes residential, mobile, or telephonic paging
3 34 device telephone numbers, except directory assistance and
3 35 telephone directories sold by a telephone company or an
4 1 organization exempt under section 501(c) of the Internal
4 2 Revenue Code, shall screen and exclude those numbers which
4 3 appear on the division's current "no telephone solicitation
4 4 calls" list from any consumer information offer or sold. This
4 5 subsection does not apply to a person licensed pursuant to
4 6 chapter 543B who calls an actual or prospective seller or
4 7 lessor of real property if such call is made in response to a
4 8 yard sign or other form of real estate sales advertisement
4 9 placed by the seller or lessor.
4 10 d. Upon a determination by the board, after a hearing
4 11 conducted pursuant to chapter 17A, that a person has violated
4 12 a provision of this subsection, the board shall reduce the
4 13 findings of the hearing to writing and deliver a copy of the
4 14 findings to the person, may issue an order requiring the
4 15 person to cease and desist from engaging in the conduct
4 16 resulting in the violation, and may assess a civil penalty of
4 17 not more than ten thousand dollars against the person.
4 18 e. The board, by rule, shall ensure that
4 19 telecommunications providers inform their customers of the
4 20 customers' rights under this section. The notification shall
4 21 be made by both of the following:
4 22 (1) Annual inserts in the billing statements mailed to
4 23 such customers.
4 24 (2) Conspicuous publication of the notice in the consumer
4 25 information pages of local telephone directories.
4 26 3. a. A contract made pursuant to a telephone
4 27 solicitation is not valid and enforceable against a consumer
4 28 unless made in compliance with this subsection.
4 29 b. A contract made pursuant to a telephone solicitation
4 30 must satisfy all of the following:
4 31 (1) The contract must be reduced to writing and signed by
4 32 the consumer.
4 33 (2) The contract must comply with all other applicable
4 34 laws and rules.
4 35 (3) The contract must match the description of goods or
5 1 services as principally used in the telephone solicitation.
5 2 (4) The contract must contain the name, address, and
5 3 telephone number of the seller, the total price of the
5 4 contract, and a detailed description of the goods or services
5 5 being sold.
5 6 (5) The contract must contain, in bold, conspicuous type,
5 7 immediately preceding the signature, the following statement:
5 8 "You are not obligated to pay any money unless you sign
5 9 this contract and return it to the seller."
5 10 (6) The contract must not exclude from its terms any oral
5 11 or written representations made by the telephone solicitor to
5 12 the consumer in connection with the transaction.
5 13 c. This subsection does not apply to contractual sales
5 14 specifically regulated under chapter 714D or other law, or to
5 15 the sale of financial services, security sales, or sales
5 16 transacted by insurance companies or their wholly owned
5 17 subsidiaries or agents, or to the sale of cable television
5 18 services to a franchised cable television operator's existing
5 19 subscribers within that cable television operator's franchise
5 20 area, or to any sales where no prior payment is made to the
5 21 merchant and an invoice accompanies the goods or services
5 22 allowing the consumer no less than seven days to cancel or
5 23 return the goods or services without obligation for any
5 24 payment.
5 25 4. a. A merchant who engages a telephone solicitor to
5 26 make or cause to be made a telephone solicitation shall not
5 27 make or submit any charge to a consumer's credit card account
5 28 or make or cause to be made any electronic transfer of funds
5 29 until after the merchant receives from the consumer a copy of
5 30 the contract, signed by the consumer, which complies with this
5 31 section.
5 32 b. This subsection does not apply to chapter 714D or to
5 33 any of the following:
5 34 (1) A transaction made pursuant to prior negotiations in
5 35 the course of a visit by the consumer to a merchant operating
6 1 a retail business establishment which has a fixed permanent
6 2 location and where consumer goods are displayed or offered for
6 3 sale on a continuing basis.
6 4 (2) A transaction in which the consumer may obtain a full
6 5 refund for the return of undamaged and unused goods or a
6 6 cancellation of services notice to the seller within seven
6 7 days after receipt by the consumer, and the seller will
6 8 process the refund within thirty days after receipt of the
6 9 returned merchandise by the consumer.
6 10 (3) A transaction in which the consumer purchases goods or
6 11 services pursuant to an examination of a television, radio, or
6 12 print advertisement or a sample, brochure, or catalog of the
6 13 merchant that contains all of the following:
6 14 (a) The name, address, and telephone number of the
6 15 merchant.
6 16 (b) A description of the goods or services being sold.
6 17 (c) Any limitations or restrictions that apply to the
6 18 offer.
6 19 (4) A transaction in which the merchant is a bona fide
6 20 charitable organization or a newspaper.
6 21 5. A violation of subsection 3 or 4 is a violation of
6 22 section 714.16, subsection 2, paragraph "a". The remedies and
6 23 penalties provided by section 714.16, including but not
6 24 limited to injunctive relief and civil penalties, apply to
6 25 violations of this section.
6 26 6. A consumer who receives more than one telephone
6 27 solicitation within any twelve-month period by or on behalf of
6 28 the same person in violation of this section may do one or
6 29 both of the following:
6 30 a. Bring an action to enjoin further violations.
6 31 b. Bring an action to recover the greater of the
6 32 following:
6 33 (1) Actual monetary damages incurred by the consumer as a
6 34 result of a violation of this section.
6 35 (2) Not less than one hundred dollars but not more than
7 1 two thousand dollars for each violation of this section.
7 2 7. In a civil action resulting from a transaction
7 3 involving a violation of this section, a prevailing plaintiff,
7 4 after judgment in the trial court and exhaustion of all
7 5 appeals, if any, is entitled to costs and reasonable attorney
7 6 fees.
7 7 EXPLANATION
7 8 This bill creates new Code section 476B.1 and establishes
7 9 restrictions on telephone solicitations.
7 10 The bill provides that a telephone solicitor who makes an
7 11 unsolicited telephone solicitation to a residential, mobile,
7 12 or telephonic paging device telephone number shall identify
7 13 the solicitor's self by the solicitor's true first and last
7 14 name, and the business on whose behalf the solicitor is making
7 15 the telephone call, immediately upon making contact by
7 16 telephone with the person who is the object of the telephone
7 17 solicitation. The bill provides that a consumer who is a
7 18 residential, mobile, or telephonic paging device telephone
7 19 subscriber desiring to be placed on a "no telephone
7 20 solicitation calls" listing indicating that the consumer does
7 21 not wish to receive unsolicited telephone solicitations may
7 22 notify the utilities division of the department of commerce
7 23 and be placed on that listing upon receipt by the division of
7 24 a $10 initial listing fee. The listing shall be renewed by
7 25 the division annually for each consumer upon receipt of a
7 26 renewal request accompanied by a $5 renewal fee.
7 27 The bill provides that a telephone solicitor shall not make
7 28 or cause to be made any unsolicited telephone solicitation to
7 29 any residential, mobile, or telephonic paging device telephone
7 30 number if the number for that telephone appears in the current
7 31 quarterly listing provided by the division. The bill excludes
7 32 from this prohibition a person licensed pursuant to Code
7 33 chapter 543B who calls an actual or prospective seller or
7 34 lessor of real property when such call is made in response to
7 35 a yard sign or other form of advertisement placed by the
8 1 seller or lessor.
8 2 The bill provides that a contract made pursuant to a
8 3 telephone solicitation call must be reduced to writing and
8 4 signed by the consumer; must comply with all other applicable
8 5 laws and rules; must match the description of goods or
8 6 services as principally used in the telephone solicitation;
8 7 must contain the name, address, and telephone number of the
8 8 seller, the total price of the contract, and a detailed
8 9 description of the goods or services being sold; must contain,
8 10 in bold, conspicuous type, immediately preceding the
8 11 signature, the statement "You are not obligated to pay any
8 12 money unless you sign this contract and return it to the
8 13 seller."; and the contract shall not exclude from its terms
8 14 any oral or written representations made by the telephone
8 15 solicitor to the consumer in connection with the transaction.
8 16 The bill provides that a merchant who engages a telephone
8 17 solicitor to make telephone solicitations shall not charge a
8 18 consumer's credit card account or make any electronic transfer
8 19 of funds until after the merchant receives from the consumer a
8 20 copy of the contract, signed by the consumer, which complies
8 21 with the contract provisions of this new Code section.
8 22 The bill provides that a violation of the contract
8 23 provisions or the prohibition on charging a consumer's credit
8 24 card account or making any electronic transfer of funds until
8 25 after receiving a copy of the signed contract is a violation
8 26 of the consumer protection provisions contained in Code
8 27 section 714.16. The bill provides that the remedies and
8 28 penalties provided in Code section 714.16, including but not
8 29 limited to injunctive relief and civil penalties, apply to
8 30 such violations.
8 31 The bill also provides that a consumer who receives more
8 32 than one telephone solicitation in violation of the new Code
8 33 section within any 12-month period by or on behalf of the same
8 34 person may bring an action to enjoin further violations; and
8 35 may also bring an action to recover the greater of actual
9 1 monetary damages incurred by the consumer as a result of a
9 2 violation or an amount not less than $100 but not more than
9 3 $2,000 for each knowing violation, as well as costs and
9 4 reasonable attorney fees.
9 5 LSB 6526HV 78
9 6 mj/cf/24
Text: HF02514 Text: HF02516 Text: HF02500 - HF02599 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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