Text: HSB00708                          Text: HSB00710
Text: HSB00700 - HSB00799               Text: HSB Index
Bills and Amendments: General Index     Bill History: General Index



House Study Bill 709

Bill Text

PAG LIN
  1  1    Section 1.  Section 476.57, subsections 1 and 2, Code 1999,
  1  2 are amended to read as follows:
  1  3    1.  DEFINITION DEFINITIONS.  As used in this section,
  1  4 unless the context otherwise requires:
  1  5    a.  "ADAD equipment" means automatic dialing-announcing
  1  6 device equipment which is a device or system of devices used,
  1  7 either alone or in conjunction with other equipment, for the
  1  8 purpose of automatically selecting or dialing telephone
  1  9 numbers without the use of a live operator to disseminate
  1 10 prerecorded messages to the numbers selected or dialed.
  1 11    b.  "Caller identification" means the display of the
  1 12 caller's telephone number or identity to the recipient of the
  1 13 call.
  1 14    2.  PROHIBITION.
  1 15    a.  Except as provided in paragraph "b", a person shall not
  1 16 use, employ, or direct another person to use, or contract for
  1 17 the use of ADAD equipment.
  1 18    b.  Except for ADAD equipment which randomly or
  1 19 sequentially selects the telephone numbers for calling, the
  1 20 prohibition in paragraph "a" does not apply to any of the
  1 21 following:
  1 22    (1)  Calls made with ADAD equipment by a nonprofit
  1 23 organization or by an individual using the calls other than
  1 24 for commercial profit-making purposes or fund-raising, if the
  1 25 calls do not involve the advertisement or offering for sale,
  1 26 lease, or rental of goods, services, or property.
  1 27    (2)  Calls made with ADAD equipment relating to payment
  1 28 for, service of, or warranty coverage of previously ordered or
  1 29 purchased goods or services or to persons or organizations
  1 30 with a prior business relationship with the persons or
  1 31 organizations using the calls.
  1 32    (3)  Calls made with ADAD equipment relating to the
  1 33 collection of lawful debts.
  1 34    (4)  Calls made with ADAD equipment to members or employees
  1 35 of the organization making the calls.
  2  1    (5)  Calls made with ADAD equipment which use an initial
  2  2 prerecorded message of a duration no greater than seven
  2  3 seconds prior to a live operator intercept, or calls which
  2  4 involve an initial message from a live operator.
  2  5    c.  Notwithstanding paragraph "b", ADAD equipment shall not
  2  6 be operated in a manner that impedes or prevents the function
  2  7 of a recipient's caller ID when the caller's equipment is
  2  8 capable of allowing the display of the caller's telephone
  2  9 number or identity.
  2 10    Sec. 2.  NEW SECTION.  476B.1  TELEPHONE SOLICITATION
  2 11 RESTRICTIONS.
  2 12    1.  As used in this section, unless the context otherwise
  2 13 requires:
  2 14    a.  "Board" means the utilities board created in section
  2 15 474.1.
  2 16    b.  "Consumer" means an actual or prospective purchaser,
  2 17 lessee, or recipient of a consumer good or service.
  2 18    c.  "Consumer good or service" means any real property or
  2 19 any tangible or intangible personal property which is normally
  2 20 used for personal, family, or household purposes, including,
  2 21 without limitation, any such property intended to be attached
  2 22 to or installed in any real property without regard to whether
  2 23 it is so attached or installed, as well as cemetery lots and
  2 24 timeshare estates, and any service related to such property.
  2 25    d.  "Department" means the department of commerce.
  2 26    e.  "Doing business in this state" means a business which
  2 27 conducts telephone solicitations from a location in this state
  2 28 or from other states or nations to consumers located in this
  2 29 state.
  2 30    f.  "Merchant" means a person who, directly or indirectly,
  2 31 offers or makes available to a consumer any consumer good or
  2 32 service.
  2 33    g.  "Telephone solicitation" means any voice communication
  2 34 over a telephone for the purpose of encouraging the purchase
  2 35 or rental of, or investment in, property, goods, services,
  3  1 wherever originated, and includes any of the following
  3  2 purposes:
  3  3    (1)  To solicit a sale of a consumer good or service.
  3  4    (2)  To offer an extension of credit for a consumer good or
  3  5 service.
  3  6    (3)  To obtain information that will or may be used for the
  3  7 direct solicitation of a sale of a consumer good or service or
  3  8 an offer of extension of credit for such purpose.
  3  9    h.  "Telephone solicitor" means a person doing business in
  3 10 this state, who makes or causes to be made a telephone
  3 11 solicitation, including, but not limited to, calls made by use
  3 12 of automatic dialing-announcing device equipment.
  3 13    i.  "Unsolicited telephone solicitation" means a telephone
  3 14 solicitation other than a call made as follows:
  3 15    (1)  In response to an express request of the person
  3 16 called.
  3 17    (2)  Primarily in connection with an existing debt or
  3 18 contract, payment, or performance of which has not been
  3 19 completed at the time of such call.
  3 20    (3)  To a person with whom the telephone solicitor has a
  3 21 prior or existing business relationship.
  3 22    (4)  To a residential subscriber if the telephone
  3 23 solicitation is made on behalf of a not-for-profit
  3 24 organization exempt from paying taxes under section 501(c) of
  3 25 the Internal Revenue Code, and if a bona fide member of the
  3 26 exempt organization makes such communication.
  3 27    2.  A telephone solicitor who makes an unsolicited
  3 28 telephone solicitation to a residential, mobile, or telephonic
  3 29 paging device telephone number shall identify the telephone
  3 30 solicitor's self by the telephone solicitor's true first and
  3 31 last name, and the business on whose behalf the telephone
  3 32 solicitor is making the unsolicited telephone solicitation,
  3 33 immediately upon making contact by telephone with the person
  3 34 who is the object of the unsolicited telephone solicitation.
  3 35    3.  a.  The department shall establish and maintain a "no
  4  1 telephone solicitation calls" listing as provided in this
  4  2 subsection.  The department may enter into an agreement with
  4  3 another person to maintain the "no telephone solicitation
  4  4 calls" listing, as deemed appropriate by the department.  A
  4  5 residential, mobile, or telephonic paging device telephone
  4  6 subscriber desiring to be placed on a "no telephone
  4  7 solicitation calls" listing indicating that the subscriber
  4  8 does not wish to receive unsolicited telephone solicitations
  4  9 shall notify the department and be placed on that listing upon
  4 10 receipt by the department of a ten dollar initial listing fee.
  4 11 The listing shall be renewed by the department annually for
  4 12 each consumer upon receipt of a renewal request accompanied by
  4 13 a five dollar renewal fee.
  4 14    b.  The department shall update its "no telephone
  4 15 solicitation calls" listing upon receipt of an initial listing
  4 16 or renewal request made by a consumer.  Upon request, the
  4 17 department shall provide a copy of the list for a fee as
  4 18 established by the department to a telephone solicitor
  4 19 requesting such list, in either a printed or electronic form.
  4 20    c.  A fee imposed and collected under this section shall be
  4 21 deposited in the general fund of the state and is appropriated
  4 22 to the department for the administration of this section.
  4 23    d.  If, pursuant to 47 U.S.C. } 227(c)(3), the federal
  4 24 communications commission establishes a single national
  4 25 database of telephone numbers of subscribers who object to
  4 26 receiving telephone solicitations, the commission shall
  4 27 include the portion of such national database including
  4 28 subscriber telephone numbers located in this state in the "no
  4 29 telephone solicitation calls" listing established and
  4 30 maintained by the department.
  4 31    4.  A telephone solicitor shall not make or cause to be
  4 32 made any unsolicited telephone solicitations to any
  4 33 residential, mobile, or telephonic paging device telephone
  4 34 number if the number for that telephone appears in the current
  4 35 listing provided by the department.  A telephone solicitor or
  5  1 person who offers for sale consumer information which includes
  5  2 residential, mobile, or telephonic paging device telephone
  5  3 numbers, except directory assistance and telephone directories
  5  4 sold by a telephone company or an organization exempt under
  5  5 section 501(c)(3) or (6) of the Internal Revenue Code, shall
  5  6 screen and exclude those numbers which appear on the
  5  7 department's current "no telephone solicitation calls" list
  5  8 from any consumer information offer or sold.  This subsection
  5  9 does not apply to a person licensed pursuant to chapter 543B
  5 10 who calls an actual or prospective seller or lessor of real
  5 11 property if such call is made in response to a yard sign or
  5 12 other form of real estate sales advertisement placed by the
  5 13 seller or lessor.
  5 14    5.  a.  A contract made pursuant to a telephone
  5 15 solicitation is not valid and enforceable against a consumer
  5 16 unless made in compliance with this subsection.
  5 17    b.  A contract made pursuant to a telephone solicitation
  5 18 must satisfy all of the following:
  5 19    (1)  The contract must be reduced to writing and signed by
  5 20 the consumer.
  5 21    (2)  The contract must comply with all other applicable
  5 22 laws and rules.
  5 23    (3)  The contract must match the description of goods or
  5 24 services as principally used in the telephone solicitation.
  5 25    (4)  The contract must contain the name, address, and
  5 26 telephone number of the seller, the total price of the
  5 27 contract, and a detailed description of the goods or services
  5 28 being sold.
  5 29    (5)  The contract must contain, in bold, conspicuous type,
  5 30 immediately preceding the signature, the following statement:
  5 31    "You are not obligated to pay any money unless you sign
  5 32 this contract and return it to the seller."
  5 33    (6)  The contract must not exclude from its terms any oral
  5 34 or written representations made by the telephone solicitor to
  5 35 the consumer in connection with the transaction.
  6  1    c.  This subsection does not apply to contractual sales
  6  2 specifically regulated by other law, or to the sale of
  6  3 financial services, security sales, or sales transacted by
  6  4 insurance companies or their wholly owned subsidiaries or
  6  5 agents, or to the sale of cable television services to a
  6  6 franchised cable television operator's existing subscribers
  6  7 within that cable television operator's franchise area, or to
  6  8 any sales where no prior payment is made to the merchant and
  6  9 an invoice accompanies the goods or services allowing the
  6 10 consumer no less than seven days to cancel or return the goods
  6 11 or services without obligation for any payment.
  6 12    6.  a.  A merchant who engages a telephone solicitor to
  6 13 make or cause to be made a telephone solicitation shall not
  6 14 make or submit any charge to a consumer's credit card account
  6 15 or make or cause to be made any electronic transfer of funds
  6 16 until after the merchant receives from the consumer a copy of
  6 17 the contract, signed by the consumer, which complies with this
  6 18 section.
  6 19    b.  This subsection does not apply to any of the following:
  6 20    (1)  A transaction made pursuant to prior negotiations in
  6 21 the course of a visit by the consumer to a merchant operating
  6 22 a retail business establishment which has a fixed permanent
  6 23 location and where consumer goods are displayed or offered for
  6 24 sale on a continuing basis.
  6 25    (2)  A transaction in which the consumer may obtain a full
  6 26 refund for the return of undamaged and unused goods or a
  6 27 cancellation of services notice to the seller within seven
  6 28 days after receipt by the consumer, and the seller will
  6 29 process the refund within thirty days after receipt of the
  6 30 returned merchandise by the consumer.
  6 31    (3)  A transaction in which the consumer purchases goods or
  6 32 services pursuant to an examination of a television, radio, or
  6 33 print advertisement or a sample, brochure, or catalog of the
  6 34 merchant that contains all of the following:
  6 35    (a)  The name, address, and telephone number of the
  7  1 merchant.
  7  2    (b)  A description of the goods or services being sold.
  7  3    (c)  Any limitations or restrictions that apply to the
  7  4 offer.
  7  5    (4)  A transaction in which the merchant is a bona fide
  7  6 charitable organization or a newspaper.
  7  7    7.  a.  Except as otherwise provided in paragraph "b", a
  7  8 person shall not make or knowingly allow a telephone
  7  9 solicitation to be made using automatic dialing-announcing
  7 10 device equipment for the selection or dialing of telephone
  7 11 numbers or the playing of a recorded message when a connection
  7 12 is completed to a telephone number called.
  7 13    b.  This subsection does not prohibit the use of an
  7 14 automatic dialing-announcing device as provided in section
  7 15 476.57 so long as the telephone numbers selected for automatic
  7 16 dialing have been screened to exclude any consumer who is
  7 17 included on the department's current "no telephone
  7 18 solicitation calls" listing or any unlisted telephone number,
  7 19 or if the calls made concern a good or service that has been
  7 20 previously ordered or purchased.
  7 21    8.  The attorney general shall investigate any complaints
  7 22 received concerning a violation of this section.  If, after
  7 23 investigating a complaint, the attorney general finds that a
  7 24 violation of this section has occurred, the attorney general
  7 25 may bring a civil action to impose a civil penalty not to
  7 26 exceed ten thousand dollars per violation and to seek other
  7 27 relief, including injunctive relief, as the court deems
  7 28 appropriate against the telephone solicitor.  A civil penalty
  7 29 imposed for a violation of this section shall be deposited in
  7 30 the general fund of the state.  A civil penalty imposed under
  7 31 this section may be recovered in an action brought by the
  7 32 attorney general, or the attorney general may compromise such
  7 33 civil penalty, and upon agreement of the violator to pay the
  7 34 compromised amount, terminate an action to recover such civil
  7 35 penalty.  The attorney general may waive a civil penalty if
  8  1 the violator has previously made full restitution or
  8  2 reimbursement or has paid actual damages to a consumer who was
  8  3 injured as a result of the violation.
  8  4    9.  A consumer who receives more than one telephone
  8  5 solicitation within any twelve-month period by or on behalf of
  8  6 the same person in violation of this section may do one or
  8  7 both of the following:
  8  8    a.  Bring an action to enjoin further violations.
  8  9    b.  Bring an action to recover the greater of the
  8 10 following:
  8 11    (1)  Actual monetary damages incurred by the consumer as a
  8 12 result of a violation of this section.
  8 13    (2)  Not less than one hundred dollars but not more than
  8 14 two thousand dollars for each knowing violation of this
  8 15 section.
  8 16    10.  a.  In a civil action resulting from a transaction
  8 17 involving a violation of this section, the prevailing party,
  8 18 after judgment in the trial court and exhaustion of all
  8 19 appeals, if any, is entitled to costs and reasonable attorney
  8 20 fees.
  8 21    b.  In a civil action initiated by the attorney general,
  8 22 the court may award to the prevailing party reasonable
  8 23 attorney fees and costs if the court finds that there was no
  8 24 justiciable issue of either law or fact raised by the losing
  8 25 party or if the court finds that the losing party acted in bad
  8 26 faith.
  8 27    11.  The board shall by rule ensure that telecommunications
  8 28 providers inform their customers of the customers' rights
  8 29 under this section.  The notification shall be made by both of
  8 30 the following:
  8 31    a.  Annual inserts in the billing statements mailed to
  8 32 customers.
  8 33    b.  Conspicuous publication of the notice in the consumer
  8 34 information pages of the local telephone directories.  
  8 35                           EXPLANATION 
  9  1    This bill provides that a person using ADAD (automatic
  9  2 dialing-announcing device) equipment is prohibited from using
  9  3 equipment in a manner that impedes or prevents the function of
  9  4 a recipient's caller ID when the caller's ADAD equipment is
  9  5 capable of allowing the display of the caller's telephone
  9  6 number or identity.  A person violating this provision is
  9  7 guilty of a serious misdemeanor, as provided under current law
  9  8 for a violation of Code section 476.57.
  9  9    The bill creates new Code section 476B.1 and establishes
  9 10 restrictions on telephone solicitations.
  9 11    The bill provides that a telephone solicitor who makes an
  9 12 unsolicited telephone solicitation to a residential, mobile,
  9 13 or telephonic paging device telephone number shall identify
  9 14 the solicitor's self by the solicitor's true first and last
  9 15 name, and the business on whose behalf the solicitor is making
  9 16 the telephone call, immediately upon making contact by
  9 17 telephone with the person who is the object of the telephone
  9 18 solicitation.  The bill provides that a residential, mobile,
  9 19 or telephonic paging device telephone subscriber desiring to
  9 20 be placed on a "no telephone solicitation calls" listing
  9 21 indicating that the subscriber does not wish to receive
  9 22 unsolicited telephone solicitations may notify the department
  9 23 of commerce and be placed on that listing upon receipt by the
  9 24 department of a $10 initial listing fee.  The listing shall be
  9 25 renewed by the department annually for each subscriber upon
  9 26 receipt of a renewal request accompanied by a $5 renewal fee.
  9 27    The bill provides that a telephone solicitor shall not make
  9 28 or cause to be made any unsolicited telephone solicitation to
  9 29 any residential, mobile, or telephonic paging device telephone
  9 30 number if the number for that telephone appears in the current
  9 31 listing provided by the department.  The bill excludes from
  9 32 this prohibition a person licensed pursuant to Code chapter
  9 33 543B who calls an actual or prospective seller or lessor of
  9 34 real property when such call is made in response to a yard
  9 35 sign or other form of advertisement placed by the seller or
 10  1 lessor.
 10  2    The bill provides that a contract made pursuant to a
 10  3 telephone solicitation call must be reduced to writing and
 10  4 signed by the consumer; must comply with all other applicable
 10  5 laws and rules; must match the description of goods or
 10  6 services as principally used in the telephone solicitation;
 10  7 must contain the name, address, and telephone number of the
 10  8 seller, the total price of the contract, and a detailed
 10  9 description of the goods or services being sold; must contain,
 10 10 in bold, conspicuous type, immediately preceding the
 10 11 signature, the statement "You are not obligated to pay any
 10 12 money unless you sign this contract and return it to the
 10 13 seller."; and the contract shall not exclude from its terms
 10 14 any oral or written representations made by the telephone
 10 15 solicitor to the consumer in connection with the transaction.
 10 16    The bill provides that the attorney general is to
 10 17 investigate any complaints received concerning a violation of
 10 18 this provision of the bill.  If, after investigating a
 10 19 complaint, the attorney general finds that there has been a
 10 20 violation, the attorney general may bring an action to impose
 10 21 a civil penalty and to seek other relief, including injunctive
 10 22 relief, as the court deems appropriate against the telephone
 10 23 solicitor.  A civil penalty imposed for a violation shall not
 10 24 exceed $10,000 per violation and shall be deposited in the
 10 25 general fund of the state.
 10 26    The bill also provides that a consumer who receives more
 10 27 than one telephone solicitation in violation of the new Code
 10 28 section within any 12-month period by or on behalf of the same
 10 29 person may bring an action to enjoin further violations; and
 10 30 may also bring an action to recover the greater of actual
 10 31 monetary damages incurred by the consumer as a result of a
 10 32 violation or an amount not less than $100 but not more than
 10 33 $2,000 for each knowing violation.  
 10 34 LSB 6526YC 78
 10 35 mj/cf/24
     

Text: HSB00708                          Text: HSB00710
Text: HSB00700 - HSB00799               Text: HSB Index
Bills and Amendments: General Index     Bill History: General Index

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