Text: HF00077 Text: HF00079 Text: HF00000 - HF00099 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. NEW SECTION. 476B.1 DEFINITIONS. 1 2 As used in this chapter, unless the context otherwise 1 3 requires: 1 4 1. "Attorney general" means the head of the department of 1 5 justice, according to chapter 13. 1 6 2. "Consumer" means an actual or prospective purchaser, 1 7 lessee, or recipient of a consumer good or service. 1 8 3. "Consumer good or service" means any real property or 1 9 any tangible or intangible personal property that is normally 1 10 used for personal, family, or household purposes, including, 1 11 without limitation, any such property intended to be attached 1 12 to or installed in any real property without regard to whether 1 13 it is so attached or installed, as well as cemetery lots and 1 14 timeshare estates, and any service related to such property. 1 15 4. "Department" means the department of justice. 1 16 5. "Doing business in this state" means a business that 1 17 conducts telephonic sales calls from a location in this state 1 18 or from other states or nations to consumers located in this 1 19 state. 1 20 6. "Merchant" means a person who, directly or indirectly, 1 21 offers or makes available to a consumer any consumer good or 1 22 service. 1 23 7. "Telephone solicitor" means a person doing business in 1 24 this state, who makes or causes to be made a telephonic sales 1 25 call, including, but not limited to, calls made by use of 1 26 automatic dialing-announcing device equipment. 1 27 8. "Telephonic sales call" means a call made by a 1 28 telephone solicitor to a consumer for any of the following 1 29 purposes: 1 30 a. To solicit a sale of a consumer good or service. 1 31 b. To offer an extension of credit for a consumer good or 1 32 service. 1 33 c. 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 9. "Unsolicited telephonic sales call" means a telephonic 2 2 sales call other than a call made as follows: 2 3 a. In response to an express request of the person called. 2 4 b. Primarily in connection with an existing debt or 2 5 contract, payment, or performance of which has not been 2 6 completed at the time of such call. 2 7 c. To a person with whom the telephone solicitor has a 2 8 prior or existing business relationship. 2 9 d. By a newspaper publisher or such publisher's agent or 2 10 employee in connection with the publisher's business. 2 11 Sec. 2. NEW SECTION. 476B.2 TELEPHONIC SALES 2 12 REQUIREMENTS. 2 13 A telephone solicitor who makes an unsolicited telephonic 2 14 sales call to a residential, mobile, or telephonic paging 2 15 device telephone number shall identify the solicitor's self by 2 16 the solicitor's true first and last name, and the business on 2 17 whose behalf the solicitor is making the telephonic sales 2 18 call, immediately upon making contact by telephone with the 2 19 person who is the object of the telephone solicitation. 2 20 Sec. 3. NEW SECTION. 476B.3 NO SALES SOLICITATION CALLS 2 21 LISTING. 2 22 1. a. A residential, mobile, or telephonic paging device 2 23 telephone subscriber desiring to be placed on a no sales 2 24 solicitation calls listing indicating that the subscriber does 2 25 not wish to receive unsolicited telephonic sales calls may 2 26 notify the department and be placed on that listing upon 2 27 receipt by the department of a ten dollar initial listing fee. 2 28 The listing shall be renewed by the department annually for 2 29 each consumer upon receipt of a renewal request accompanied by 2 30 a five dollar renewal fee. 2 31 b. The department shall update its no sales solicitation 2 32 calls listing quarterly. 2 33 c. The department shall charge a fifty dollar fee to 2 34 telephone solicitors for access to the quarterly no sales 2 35 solicitation calls listing. 3 1 d. The department shall adopt rules pursuant to chapter 3 2 17A related to administration of the listing process. 3 3 e. Fees imposed and collected under this section shall be 3 4 deposited in the general fund of the state and are 3 5 appropriated to the department for the administration of this 3 6 chapter. 3 7 2. A telephone solicitor shall not make or cause to be 3 8 made any unsolicited telephonic sales call to any residential, 3 9 mobile, or telephonic paging device telephone number if the 3 10 number for that telephone appears in the then current 3 11 quarterly listing published by the department. 3 12 3. A telephone solicitor or person who offers for sale 3 13 consumer information which includes residential, mobile, or 3 14 telephonic paging device telephone numbers, except directory 3 15 assistance and telephone directories sold by a telephone 3 16 company or an organization exempt under section 501(c)(3) or 3 17 (6) of the Internal Revenue Code, shall screen and exclude 3 18 those numbers which appear on the division's then current no 3 19 sales solicitation calls list from any consumer information 3 20 offer or sold. 3 21 4. This section does not apply to a person licensed 3 22 pursuant to chapter 543B who calls an actual or prospective 3 23 seller or lessor of real property if such call is made in 3 24 response to a yard sign or other form of real estate sales 3 25 advertisement placed by the seller or lessor. 3 26 Sec. 4. NEW SECTION. 476B.4 CONTRACT REQUIREMENTS. 3 27 1. A contract made pursuant to a telephonic sales call is 3 28 not valid and enforceable against a consumer unless made in 3 29 compliance with this section. 3 30 2. A contract made pursuant to a telephonic sales call 3 31 must satisfy all of the following: 3 32 a. The contract must be reduced to writing and signed by 3 33 the consumer. 3 34 b. The contract must comply with all other applicable laws 3 35 and rules. 4 1 c. The contract must match the description of goods or 4 2 services as principally used in the telephone solicitation. 4 3 d. The contract must contain the name, address, and 4 4 telephone number of the seller, the total price of the 4 5 contract, and a detailed description of the goods or services 4 6 being sold. 4 7 e. The contract must contain, in bold, conspicuous type, 4 8 immediately preceding the signature, the following statement: 4 9 "You are not obligated to pay any money unless you sign 4 10 this contract and return it to the seller." 4 11 f. The contract must not exclude from its terms any oral 4 12 or written representations made by the telephone solicitor to 4 13 the consumer in connection with the transaction. 4 14 3. This section does not apply to contractual sales 4 15 specifically regulated by other law, or to the sale of 4 16 financial services, security sales, or sales transacted by 4 17 insurance companies or their wholly owned subsidiaries or 4 18 agents, or to the sale of cable television services to a 4 19 franchised cable television operator's existing subscribers 4 20 within that cable television operator's franchise area, or to 4 21 any sales where no prior payment is made to the merchant and 4 22 an invoice accompanies the goods or services allowing the 4 23 consumer no less than seven days to cancel or return the goods 4 24 or services without obligation for any payment. 4 25 Sec. 5. NEW SECTION. 476B.5 CONTRACT REQUIRED FOR 4 26 PAYMENT BY CREDIT CARD OR ELECTRONIC FUNDS TRANSFER. 4 27 1. A merchant who engages a telephone solicitor to make or 4 28 cause to be made a telephonic sales call shall not make or 4 29 submit any charge to a consumer's credit card account or make 4 30 or cause to be made any electronic transfer of funds until 4 31 after the merchant receives from the consumer a copy of the 4 32 contract, signed by the consumer, which complies with this 4 33 section. 4 34 2. This section does not apply to any of the following: 4 35 a. A transaction made pursuant to prior negotiations in 5 1 the course of a visit by the consumer to a merchant operating 5 2 a retail business establishment which has a fixed permanent 5 3 location and where consumer goods are displayed or offered for 5 4 sale on a continuing basis. 5 5 b. A transaction in which the consumer may obtain a full 5 6 refund for the return of undamaged and unused goods or a 5 7 cancellation of services notice to the seller within seven 5 8 days after receipt by the consumer, and the seller will 5 9 process the refund within thirty days after receipt of the 5 10 returned merchandise by the consumer. 5 11 c. A transaction in which the consumer purchases goods or 5 12 services pursuant to an examination of a television, radio, or 5 13 print advertisement or a sample, brochure, or catalog of the 5 14 merchant that contains all of the following: 5 15 (1) The name, address, and telephone number of the 5 16 merchant. 5 17 (2) A description of the goods or services being sold. 5 18 (3) Any limitations or restrictions that apply to the 5 19 offer. 5 20 d. A transaction in which the merchant is a bona fide 5 21 charitable organization or a newspaper. 5 22 Sec. 6. NEW SECTION. 476B.6 AUTOMATIC DIALING 5 23 ANNOUNCING DEVICE. 5 24 1. Except as otherwise provided in subsection 2, a person 5 25 shall not make or knowingly allow a telephonic sales call to 5 26 be made using automatic dialing-announcing device equipment 5 27 for the selection or dialing of telephone numbers or the 5 28 playing of a recorded message when a connection is completed 5 29 to a telephone number called. 5 30 2. This section does not prohibit the use of an automatic 5 31 dialing-announcing device as provided in section 476.57 so 5 32 long as the telephone numbers selected for automatic dialing 5 33 have been screened to exclude any telephone subscriber who is 5 34 included on the department's then current no sales 5 35 solicitation calls listing or any unlisted telephone number, 6 1 or if the calls made concern a good or service that has been 6 2 previously ordered or purchased. 6 3 Sec. 7. NEW SECTION. 476B.7 REMEDIES. 6 4 1. The attorney general shall investigate any complaints 6 5 received concerning a violation of this chapter. If, after 6 6 investigating a complaint, the attorney general finds that 6 7 there has been a violation of this chapter, the attorney 6 8 general may bring an action to impose a civil penalty and to 6 9 seek other relief, including injunctive relief, as the court 6 10 deems appropriate against the telephone solicitor. 6 11 2. A civil penalty imposed for a violation shall not 6 12 exceed ten thousand dollars per violation and shall be 6 13 deposited in the general fund of the state. The attorney 6 14 general may waive a civil penalty if the violator has 6 15 previously made full restitution or reimbursement or has paid 6 16 actual damages to a consumer who was injured as a result of 6 17 the violation. 6 18 3. In a civil action resulting from a transaction 6 19 involving a violation of this section, the prevailing party, 6 20 after judgment in the trial court and exhaustion of all 6 21 appeals, if any, is entitled to costs and reasonable attorney 6 22 fees. 6 23 4. In a civil action initiated by the attorney general, 6 24 the court may award to the prevailing party reasonable 6 25 attorney fees and costs if the court finds that there was no 6 26 justiciable issue of either law or fact raised by the losing 6 27 party or if the court finds that the losing party acted in bad 6 28 faith. 6 29 Sec. 8. NEW SECTION. 476B.8 NOTIFICATION OF RIGHTS. 6 30 The attorney general shall by rule ensure that 6 31 telecommunications providers inform their customers of the 6 32 customers' rights under this chapter. The notification shall 6 33 be made by both of the following: 6 34 1. Annual inserts in the billing statements mailed to 6 35 customers. 7 1 2. Conspicuous publication of the notice in the consumer 7 2 information pages of the local telephone directories. 7 3 EXPLANATION 7 4 This bill creates new Code chapter 476B that establishes 7 5 restrictions on telephone solicitations. 7 6 The bill provides that a telephone solicitor who makes an 7 7 unsolicited telephonic sales call to a residential, mobile, or 7 8 telephonic paging device telephone number shall identify the 7 9 solicitor's self by the solicitor's true first and last name, 7 10 and the business on whose behalf the solicitor is making the 7 11 sales call, immediately upon making contact by telephone with 7 12 the person who is the object of the telephone solicitation. 7 13 The bill provides that a residential, mobile, or telephonic 7 14 paging device telephone subscriber desiring to be placed on a 7 15 no sales solicitation calls listing indicating that the 7 16 subscriber does not wish to receive unsolicited telephonic 7 17 sales calls may notify the department of justice and be placed 7 18 on that listing upon receipt by the department of a $10 7 19 initial listing fee. The listing shall be renewed by the 7 20 department annually for each consumer upon receipt of a 7 21 renewal request accompanied by a $5 renewal fee. The 7 22 department shall update the listing quarterly, and shall 7 23 charge a $50 fee for access to the list. The fees are 7 24 appropriated to the department for use in administration of 7 25 the listing. The department is directed to adopt rules 7 26 regarding administration of the listing. 7 27 The bill provides that a telephone solicitor shall not make 7 28 or cause to be made any unsolicited telephonic sales call to 7 29 any residential, mobile, or telephonic paging device telephone 7 30 number if the number for that telephone appears in the then 7 31 current quarterly listing published by the department. The 7 32 bill excludes from this prohibition a person licensed pursuant 7 33 to Code chapter 543B who calls an actual or prospective seller 7 34 or lessor of real property when such call is made in response 7 35 to 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 telephonic sales call must be reduced to writing and signed by 8 4 the consumer; must comply with all other applicable laws and 8 5 rules; must match the description of goods or services as 8 6 principally used in the telephone solicitation; must contain 8 7 the name, address, and telephone number of the seller, the 8 8 total price of the contract, and a detailed description of the 8 9 goods or services being sold; must contain, in bold, 8 10 conspicuous type, immediately preceding the signature, the 8 11 statement "You are not obligated to pay any money unless you 8 12 sign this contract and return it to the seller."; and the 8 13 contract shall not exclude from its terms any oral or written 8 14 representations made by the telephone solicitor to the 8 15 consumer in connection with the transaction. 8 16 The bill provides that the attorney general is to 8 17 investigate any complaints received concerning a violation of 8 18 the bill. If, after investigating a complaint, the attorney 8 19 general finds that there has been a violation of the chapter, 8 20 the attorney general may bring an action to impose a civil 8 21 penalty and to seek other relief, including injunctive relief, 8 22 as the court deems appropriate against the telephone 8 23 solicitor. A civil penalty imposed for a violation shall not 8 24 exceed $10,000 per violation and shall be deposited in the 8 25 general fund of the state. 8 26 LSB 1592HH 79 8 27 jj/cf/24
Text: HF00077 Text: HF00079 Text: HF00000 - HF00099 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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