Text: HF00161 Text: HF00163 Text: HF00100 - HF00199 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 476.57, subsections 1 and 2, Code 2001, 1 2 are amended to read as follows: 1 3 1.DEFINITIONDEFINITIONS. 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 on the 1 12 recipient's telephone or related equipment of the caller's 1 13 telephone number or identity to the recipient of the 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 equipmentwhichthat use an 2 2 initial prerecorded message of a duration no greater than 2 3 seven seconds prior to a live operator intercept, or calls 2 4 which involve an initial message from a live operator. 2 5 c. Notwithstanding paragraph "b", a caller shall not do 2 6 any of the following: 2 7 (1) Operate ADAD equipment in a manner that impedes or 2 8 prevents the function of a recipient's caller identification 2 9 if the caller's existing equipment is capable of allowing the 2 10 display of the caller's telephone number or identity. 2 11 (2) Operate any ADAD equipment acquired on or after July 2 12 1, 2001, that is incapable of allowing the display of the 2 13 caller's telephone number or identity. 2 14 Sec. 2. NEW SECTION. 476B.1 DEFINITIONS. 2 15 As used in this chapter, unless the context otherwise 2 16 requires: 2 17 1. "Board" means the utilities board created in section 2 18 474.1. 2 19 2. "Consumer" means an actual or prospective purchaser, 2 20 lessee, or recipient of a consumer good or service. 2 21 3. "Consumer good or service" means any real property or 2 22 any tangible or intangible personal property which is normally 2 23 used for personal, family, or household purposes, including, 2 24 without limitation, any such property intended to be attached 2 25 to or installed in any real property without regard to whether 2 26 it is so attached or installed, as well as cemetery lots and 2 27 timeshare estates, and any service related to such property. 2 28 4. "Department" means the department of commerce. 2 29 5. "Doing business in this state" means a business which 2 30 conducts telephone solicitations from a location in this state 2 31 or from other states or nations to consumers located in this 2 32 state. 2 33 6. "Merchant" means a person who, directly or indirectly, 2 34 offers or makes available to a consumer any consumer good or 2 35 service. 3 1 7. "Telephone solicitation" means any voice communication 3 2 over a telephone for the purpose of encouraging the purchase 3 3 or rental of, or investment in, property, goods, services, 3 4 wherever originated, and includes any of the following 3 5 purposes: 3 6 a. To solicit a sale of a consumer good or service. 3 7 b. To offer an extension of credit for a consumer good or 3 8 service. 3 9 c. To obtain information that will or may be used for the 3 10 direct solicitation of a sale of a consumer good or service or 3 11 an offer of extension of credit for such purpose. 3 12 8. "Telephone solicitor" means a person doing business in 3 13 this state, who makes or causes to be made a telephone 3 14 solicitation, including, but not limited to, calls made by use 3 15 of automatic dialing-announcing device equipment. 3 16 9. "Unsolicited telephone solicitation" means a telephone 3 17 solicitation other than a call made as follows: 3 18 a. In response to an express request of the person called. 3 19 b. Primarily in connection with an existing debt or 3 20 contract, payment, or performance of which has not been 3 21 completed at the time of such call. 3 22 c. To a person with whom the telephone solicitor has a 3 23 prior or existing business relationship. 3 24 d. To a residential subscriber if the telephone 3 25 solicitation is made on behalf of a not-for-profit 3 26 organization exempt from paying taxes under section 501(c) of 3 27 the Internal Revenue Code, and if a bona fide member of the 3 28 exempt organization makes such communication. 3 29 Sec. 3. NEW SECTION. 476B.2 TELEPHONE SOLICITATION 3 30 RESTRICTIONS. 3 31 A telephone solicitor who makes an unsolicited telephone 3 32 solicitation to a residential, mobile, or telephonic paging 3 33 device telephone number shall identify the telephone 3 34 solicitor's self by the telephone solicitor's true first and 3 35 last name, and the business on whose behalf the telephone 4 1 solicitor is making the unsolicited telephone solicitation, 4 2 immediately upon making contact by telephone with the person 4 3 who is the object of the unsolicited telephone solicitation. 4 4 Sec. 4. NEW SECTION. 476B.3 NO-CALL LISTING. 4 5 1. The department shall establish and maintain a "no 4 6 telephone solicitation calls" listing as provided in this 4 7 section. The department may enter into an agreement with 4 8 another person to maintain the "no telephone solicitation 4 9 calls" listing, as deemed appropriate by the department. 4 10 2. A residential, mobile, or telephonic paging device 4 11 telephone subscriber desiring to be placed on a "no telephone 4 12 solicitation calls" listing indicating that the subscriber 4 13 does not wish to receive unsolicited telephone solicitations 4 14 shall notify the department and be placed on that listing upon 4 15 receipt by the department of a ten dollar initial listing fee. 4 16 The listing shall be renewed by the department annually for 4 17 each consumer upon receipt of a renewal request accompanied by 4 18 a five dollar renewal fee. 4 19 3. The department shall update its "no telephone 4 20 solicitation calls" listing quarterly. 4 21 4. Upon request and payment of a fee as established by the 4 22 department, the department shall provide a copy of the list to 4 23 a telephone solicitor requesting such list, in either a 4 24 printed or electronic form. Notwithstanding chapter 22, the 4 25 fee charged by the department for the list in printed or 4 26 electronic form shall not be limited to publication or copying 4 27 costs, but may be set at a level to cover all costs of 4 28 administering this chapter. 4 29 5. A fee imposed and collected under this section shall be 4 30 deposited in the general fund of the state and is appropriated 4 31 to the department for the administration of this section. 4 32 6. If, pursuant to 47 U.S.C. } 227(c)(3), the federal 4 33 communications commission establishes a single national 4 34 database of telephone numbers of subscribers who object to 4 35 receiving telephone solicitations, the commission shall 5 1 include the portion of such national database including 5 2 subscriber telephone numbers located in this state in the "no 5 3 telephone solicitation calls" listing established and 5 4 maintained by the department. 5 5 Sec. 5. NEW SECTION. 476B.4 TELEPHONE SOLICITATIONS 5 6 PROHIBITED – RESTRICTIONS ON SALES OF TELEPHONE NUMBERS. 5 7 1. A telephone solicitor shall not make or cause to be 5 8 made any unsolicited telephone solicitations to any 5 9 residential, mobile, or telephonic paging device telephone 5 10 number if the number for that telephone appears in the current 5 11 listing provided by the department. 5 12 2. A telephone solicitor or person who offers for sale 5 13 consumer information which includes residential, mobile, or 5 14 telephonic paging device telephone numbers, except directory 5 15 assistance and telephone directories sold by a telephone 5 16 company or an organization exempt under section 501(c)(3) or 5 17 (6) of the Internal Revenue Code, shall screen and exclude 5 18 those numbers which appear on the department's current "no 5 19 telephone solicitation calls" list from any consumer 5 20 information offer or sale. 5 21 3. This section does not apply to a person licensed 5 22 pursuant to chapter 543B who calls an actual or prospective 5 23 seller or lessor of real property if such call is made in 5 24 response to a yard sign or other form of real estate sales 5 25 advertisement placed by the seller or lessor. 5 26 Sec. 6. NEW SECTION. 476B.5 REQUIREMENTS FOR CONTRACTS 5 27 MADE PURSUANT TO TELEPHONE SOLICITATION. 5 28 1. A contract made pursuant to a telephone solicitation is 5 29 not valid and enforceable against a consumer unless made in 5 30 compliance with this section. 5 31 2. A contract made pursuant to a telephone solicitation 5 32 must satisfy all of the following: 5 33 a. The contract must be reduced to writing and signed by 5 34 the consumer. 5 35 b. The contract must comply with all other applicable laws 6 1 and rules. 6 2 c. The contract must match the description of goods or 6 3 services as principally used in the telephone solicitation. 6 4 d. The contract must contain the name, address, and 6 5 telephone number of the seller, the total price of the 6 6 contract, and a detailed description of the goods or services 6 7 being sold. 6 8 e. The contract must contain, in bold, conspicuous type, 6 9 immediately preceding the signature, the following statement: 6 10 "You are not obligated to pay any money unless you sign 6 11 this contract and return it to the seller." 6 12 f. The contract must not exclude from its terms any oral 6 13 or written representations made by the telephone solicitor to 6 14 the consumer in connection with the transaction. 6 15 3. This section does not apply to contractual sales 6 16 specifically regulated by other law, or to the sale of 6 17 financial services, security sales, or sales transacted by 6 18 insurance companies or their wholly owned subsidiaries or 6 19 agents, or to the sale of cable television services to a 6 20 franchised cable television operator's existing subscribers 6 21 within that cable television operator's franchise area, or to 6 22 any sales where no prior payment is made to the merchant and 6 23 an invoice accompanies the goods or services allowing the 6 24 consumer no less than seven days to cancel or return the goods 6 25 or services without obligation for any payment. 6 26 Sec. 7. NEW SECTION. 476B.6 RESTRICTIONS ON CHARGES TO 6 27 CREDIT CARD ACCOUNTS AND ELECTRONIC TRANSFERS OF FUNDS. 6 28 1. A merchant who engages a telephone solicitor to make or 6 29 cause to be made a telephone solicitation shall not make or 6 30 submit any charge to a consumer's credit card account or make 6 31 or cause to be made any electronic transfer of funds until 6 32 after the merchant receives from the consumer a copy of the 6 33 contract, signed by the consumer, which complies with section 6 34 476B.5. 6 35 2. This section does not apply to any of the following: 7 1 a. A transaction made pursuant to prior negotiations in 7 2 the course of a visit by the consumer to a merchant operating 7 3 a retail business establishment which has a fixed permanent 7 4 location and where consumer goods are displayed or offered for 7 5 sale on a continuing basis. 7 6 b. A transaction in which the consumer may obtain a full 7 7 refund for the return of undamaged and unused goods or a 7 8 cancellation of services notice to the seller within seven 7 9 days after receipt by the consumer, and the seller will 7 10 process the refund within thirty days after receipt of the 7 11 returned merchandise by the consumer. 7 12 c. A transaction in which the consumer purchases goods or 7 13 services pursuant to an examination of a television, radio, or 7 14 print advertisement or a sample, brochure, or catalog of the 7 15 merchant that contains all of the following: 7 16 (1) The name, address, and telephone number of the 7 17 merchant. 7 18 (2) A description of the goods or services being sold. 7 19 (3) Any limitations or restrictions that apply to the 7 20 offer. 7 21 d. A transaction in which the merchant is a bona fide 7 22 charitable organization or a newspaper. 7 23 Sec. 8. NEW SECTION. 476B.7 RESTRICTIONS ON USE OF 7 24 AUTOMATIC DIALING-ANNOUNCING EQUIPMENT. 7 25 1. Except as otherwise provided in subsection 2, a person 7 26 shall not make or knowingly allow a telephone solicitation to 7 27 be made using automatic dialing-announcing device equipment 7 28 for the selection or dialing of telephone numbers or the 7 29 playing of a recorded message when a connection is completed 7 30 to a telephone number called. 7 31 2. This section does not prohibit the use of an automatic 7 32 dialing-announcing device as provided in section 476.57 7 33 provided that the telephone numbers selected for automatic 7 34 dialing have been screened to exclude any consumer who is 7 35 included on the department's current "no telephone 8 1 solicitation calls" listing or any unlisted telephone number, 8 2 or that the calls made concern a good or service that has been 8 3 previously ordered or purchased. 8 4 Sec. 9. NEW SECTION. 476B.8 INVESTIGATIONS – CIVIL 8 5 ACTIONS – CIVIL PENALTY – AND OTHER REMEDIES. 8 6 1. The attorney general shall investigate any complaints 8 7 received concerning a violation of this chapter. 8 8 2. If, after investigating a complaint, the attorney 8 9 general finds that a violation of this chapter has occurred, 8 10 the attorney general may bring a civil action to impose a 8 11 civil penalty not to exceed ten thousand dollars per violation 8 12 and to seek other relief, including injunctive relief, as the 8 13 court deems appropriate against the telephone solicitor. 8 14 3. A civil penalty imposed under this section may be 8 15 recovered in an action brought by the attorney general, or the 8 16 attorney general may compromise such civil penalty, and upon 8 17 agreement of the violator to pay the compromised amount, 8 18 terminate an action to recover such civil penalty. The 8 19 attorney general may waive a civil penalty if the violator has 8 20 previously made full restitution or reimbursement or has paid 8 21 actual damages to a consumer who was injured as a result of 8 22 the violation. 8 23 4. A civil penalty paid for a violation of this section 8 24 shall be deposited in the general fund of the state. 8 25 Sec. 10. NEW SECTION. 476B.9 PRIVATE CAUSE OF ACTION – 8 26 DAMAGES AND INJUNCTIVE RELIEF. 8 27 A consumer who receives more than one telephone 8 28 solicitation within any twelve-month period by or on behalf of 8 29 the same person in violation of this chapter may do one or 8 30 both of the following: 8 31 1. Bring an action to enjoin further violations. 8 32 2. Bring an action to recover the greater of the 8 33 following: 8 34 a. Actual monetary damages incurred by the consumer as a 8 35 result of a violation of this chapter. 9 1 b. Not less than one hundred dollars but not more than two 9 2 thousand dollars for each knowing violation of this chapter. 9 3 Sec. 11. NEW SECTION. 476B.10 ATTORNEY FEES. 9 4 1. In a civil action initiated by the attorney general, 9 5 the court may award to the prevailing party reasonable 9 6 attorney fees and costs if the court finds that there was no 9 7 justiciable issue of either law or fact raised by the losing 9 8 party or if the court finds that the losing party acted in bad 9 9 faith. 9 10 2. In a civil action resulting from a transaction 9 11 involving a violation of this chapter, the prevailing party, 9 12 after judgment in the trial court and exhaustion of all 9 13 appeals, if any, is entitled to costs and reasonable attorney 9 14 fees. 9 15 Sec. 12. NEW SECTION. 476B.11 NOTIFICATION OF RIGHTS. 9 16 The board shall by rule ensure that telecommunications 9 17 providers inform their customers of the customers' rights 9 18 under this chapter. The notification shall be made by at 9 19 least both of the following: 9 20 1. Annual inserts in the billing statements mailed to 9 21 customers. 9 22 2. Conspicuous publication of the notice in the consumer 9 23 information pages of the local telephone directories. 9 24 EXPLANATION 9 25 This bill provides that a person using ADAD (automatic 9 26 dialing-announcing device) equipment is prohibited from using 9 27 equipment in a manner that impedes or prevents the function of 9 28 a recipient's caller identification when the caller's ADAD 9 29 equipment is capable of allowing the display of the caller's 9 30 telephone number or identity. A person is also prohibited 9 31 from operating ADAD equipment acquired on or after July 1, 9 32 2001, that is incapable of allowing the display of the 9 33 caller's telephone number or identity. A person violating 9 34 this provision is guilty of a serious misdemeanor, as provided 9 35 under current law for a violation of Code section 476.57. New 10 1 Code section 476B.7 also addresses ADAD calls and makes them 10 2 applicable to the civil penalties in new Code chapter 476B. 10 3 The bill also creates new Code chapter 476B establishing 10 4 restrictions on telephone solicitations. 10 5 New Code section 476B.1 provides definitions for the new 10 6 chapter. 10 7 The bill provides in new Code section 476B.2 that a 10 8 telephone solicitor who makes an unsolicited telephone 10 9 solicitation to a residential, mobile, or telephonic paging 10 10 device telephone number shall identify the solicitor's self by 10 11 the solicitor's true first and last name, and the business on 10 12 whose behalf the solicitor is making the telephone call, 10 13 immediately upon making contact by telephone with the person 10 14 who is the object of the telephone solicitation. 10 15 The bill provides in new Code section 476B.3 that a 10 16 residential, mobile, or telephonic paging device telephone 10 17 subscriber desiring to be placed on a "no telephone 10 18 solicitation calls" listing indicating that the subscriber 10 19 does not wish to receive unsolicited telephone solicitations 10 20 may notify the department of commerce and be placed on that 10 21 listing upon receipt by the department of a $10 initial 10 22 listing fee. The listing shall be renewed by the department 10 23 annually for each subscriber upon receipt of a renewal request 10 24 accompanied by a $5 renewal fee. The department shall update 10 25 the list quarterly and shall make it available to telephone 10 26 solicitors for a fee to be determined by the department. 10 27 The bill provides in new Code section 476B.4 that a 10 28 telephone solicitor shall not make or cause to be made any 10 29 unsolicited telephone solicitation to any residential, mobile, 10 30 or telephonic paging device telephone number if the number for 10 31 that telephone appears in the current no-call listing provided 10 32 by the department. Restrictions are also placed in sale of 10 33 consumer telephone numbers that appear on the current listing 10 34 provided by the department. The bill excludes from this 10 35 prohibition a person licensed pursuant to Code chapter 543B 11 1 who calls an actual or prospective seller or lessor of real 11 2 property when such call is made in response to a yard sign or 11 3 other form of advertisement placed by the seller or lessor. 11 4 The bill provides in new Code section 476B.5 that a 11 5 contract made pursuant to a telephone solicitation call must 11 6 be reduced to writing and signed by the consumer; must comply 11 7 with all other applicable laws and rules; must match the 11 8 description of goods or services as principally used in the 11 9 telephone solicitation; must contain the name, address, and 11 10 telephone number of the seller, the total price of the 11 11 contract, and a detailed description of the goods or services 11 12 being sold; must contain, in bold, conspicuous type, 11 13 immediately preceding the signature, the statement "You are 11 14 not obligated to pay any money unless you sign this contract 11 15 and return it to the seller."; and the contract shall not 11 16 exclude from its terms any oral or written representations 11 17 made by the telephone solicitor to the consumer in connection 11 18 with the transaction. 11 19 New Code section 476B.6 restricts charges to credit card 11 20 accounts or electronic funds transfers until the merchant 11 21 receives a signed contract from the consumer. 11 22 The bill provides in new Code section 476B.8 that the 11 23 attorney general is to investigate any complaints received 11 24 concerning a violation of this provision of the bill. If, 11 25 after investigating a complaint, the attorney general finds 11 26 that there has been a violation, the attorney general may 11 27 bring an action to impose a civil penalty and to seek other 11 28 relief, including injunctive relief, as the court deems 11 29 appropriate against the telephone solicitor. A civil penalty 11 30 imposed for a violation shall not exceed $10,000 per violation 11 31 and shall be deposited in the general fund of the state. 11 32 The bill provides in new Code section 476B.9 that a 11 33 consumer who receives more than one telephone solicitation in 11 34 violation of the new Code section within any 12-month period 11 35 by or on behalf of the same person may bring an action to 12 1 enjoin further violations; and may also bring an action to 12 2 recover the greater of actual monetary damages incurred by the 12 3 consumer as a result of a violation or an amount not less than 12 4 $100 but not more than $2,000 for each knowing violation. 12 5 New Code section 476B.10 provides for recovery of attorney 12 6 fees by the prevailing party in an action. 12 7 New Code section 476B.11 requires adoption of rules by the 12 8 utilities board related to customer notification of rights 12 9 under the bill. 12 10 LSB 1933HH 79 12 11 jj/cf/24
Text: HF00161 Text: HF00163 Text: HF00100 - HF00199 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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