Text: SF00399 Text: SF00401 Text: SF00400 - SF00499 Text: SF 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 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 identification when the caller's 2 8 equipment is capable of allowing the display of the caller's 2 9 telephone number or identity. 2 10 d. Notwithstanding paragraph "b", a person who uses or 2 11 employs ADAD equipment as provided in this section shall 2 12 identify the person within the first fifteen seconds of a call 2 13 and provide the recipient of the call with the name and 2 14 telephone number of a person whom the recipient may call to 2 15 request that no further calls be made to the recipient. 2 16 Sec. 2. NEW SECTION. 476B.1 TELEPHONE SOLICITATION 2 17 RESTRICTIONS. 2 18 1. As used in this section, unless the context otherwise 2 19 requires: 2 20 a. "Board" means the utilities board created in section 2 21 474.1. 2 22 b. "Consumer" means an actual or prospective purchaser, 2 23 lessee, or recipient of a consumer good or service. 2 24 c. "Consumer good or service" means any real property or 2 25 any tangible or intangible personal property which is normally 2 26 used for personal, family, or household purposes, including, 2 27 without limitation, any such property intended to be attached 2 28 to or installed in any real property without regard to whether 2 29 it is so attached or installed, as well as cemetery lots and 2 30 timeshare estates, and any service related to such property. 2 31 d. "Division" means the utilities division of the 2 32 department of commerce. 2 33 e. "Doing business in this state" means a business which 2 34 conducts telephone solicitations from a location in this state 2 35 or from other states or nations to consumers located in this 3 1 state. 3 2 f. "Merchant" means a person who, directly or indirectly, 3 3 offers or makes available to a consumer any consumer good or 3 4 service. 3 5 g. "Telephone solicitation" means any voice communication 3 6 over a telephone for the purpose of encouraging the purchase 3 7 or rental of, or investment in, property, goods, services, 3 8 wherever originated, and includes any of the following 3 9 purposes: 3 10 (1) To solicit a sale of a consumer good or service. 3 11 (2) To offer an extension of credit for a consumer good or 3 12 service. 3 13 (3) To obtain information that will or may be used for the 3 14 direct solicitation of a sale of a consumer good or service or 3 15 for an offer of extension of credit for such purpose. 3 16 h. "Telephone solicitor" means a person doing business in 3 17 this state, who makes or causes to be made a telephone 3 18 solicitation, including, but not limited to, calls made by use 3 19 of automatic dialing-announcing device equipment. 3 20 i. "Unsolicited telephone solicitation" means a telephone 3 21 solicitation other than a call made as follows: 3 22 (1) In response to an express request of the person 3 23 called. 3 24 (2) Primarily in connection with an existing debt or 3 25 contract, payment, or performance of which has not been 3 26 completed at the time of such call. 3 27 (3) To a person with whom the telephone solicitor has a 3 28 prior or existing business relationship. 3 29 (4) To a residential subscriber if the telephone 3 30 solicitation is made on behalf of a not-for-profit 3 31 organization exempt from paying taxes under section 501(c) of 3 32 the Internal Revenue Code, and if a bona fide member of the 3 33 exempt organization makes the communication. 3 34 2. a. A telephone solicitor who makes an unsolicited 3 35 telephone solicitation to a residential, mobile, or telephonic 4 1 paging device telephone number shall identify the telephone 4 2 solicitor's self by the telephone solicitor's true first and 4 3 last name, and the business on whose behalf the telephone 4 4 solicitor is making the unsolicited telephone solicitation, 4 5 immediately upon making contact by telephone with the person 4 6 who is the object of the unsolicited telephone solicitation. 4 7 b. (1) The division shall establish and maintain a "no 4 8 telephone solicitation calls" listing as provided in this 4 9 subsection. The division may enter into an agreement with 4 10 another person to maintain the "no telephone solicitation 4 11 calls" listing, as deemed appropriate by the division. A 4 12 consumer who is a residential, mobile, or telephonic paging 4 13 device telephone subscriber desiring to be placed on a "no 4 14 telephone solicitation calls" listing indicating that the 4 15 consumer does not wish to receive unsolicited telephone 4 16 solicitations may notify the division and be placed on that 4 17 listing upon receipt by the division of a ten dollar initial 4 18 listing fee. The inclusion of a consumer on the listing may 4 19 be renewed by such consumer annually upon submitting a renewal 4 20 request to the division accompanied by a five dollar renewal 4 21 fee. 4 22 (2) The division shall update its "no telephone 4 23 solicitation calls" listing on a quarterly basis, including 4 24 initial listing and renewal requests submitted by consumers to 4 25 the division during the calendar quarter immediately preceding 4 26 the date of such updating. The division, upon request, shall 4 27 provide a copy of the most current quarterly listing for a fee 4 28 as established by the division to a telephone solicitor 4 29 requesting such list, in either a printed or electronic form. 4 30 (3) A fee imposed and collected under this section shall 4 31 be deposited in the general fund of the state and is 4 32 appropriated to the division, limited to an amount which is 4 33 sufficient for the administration of this section. 4 34 (4) If, pursuant to 47 U.S.C. } 227(c)(3), the federal 4 35 communications commission establishes a single national 5 1 database of telephone numbers of consumers who object to 5 2 receiving telephone solicitations, the commission shall 5 3 include the portion of such national database including 5 4 consumer telephone numbers located in this state in the "no 5 5 telephone solicitation calls" listing established and 5 6 maintained by the division. 5 7 c. 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 that telephone number appears in the current 5 11 quarterly listing provided by the division. A telephone 5 12 solicitor or person who offers for sale consumer information 5 13 which includes residential, mobile, or telephonic paging 5 14 device telephone numbers, except directory assistance and 5 15 telephone directories sold by a telephone company or an 5 16 organization exempt under section 501(c) of the Internal 5 17 Revenue Code, shall screen and exclude those numbers which 5 18 appear on the division's current "no telephone solicitation 5 19 calls" list from any consumer information offered or sold. 5 20 This subsection does not apply to a person licensed pursuant 5 21 to chapter 543B who calls an actual or prospective seller or 5 22 lessor of real property if such call is made in response to a 5 23 yard sign or other form of real estate sales advertisement 5 24 placed by the seller or lessor. 5 25 d. Upon a determination by the board, after a hearing 5 26 conducted pursuant to chapter 17A, that a person has violated 5 27 a provision of this subsection, the board shall reduce the 5 28 findings of the hearing to writing, shall deliver a copy of 5 29 the findings to the person, may issue an order requiring the 5 30 person to cease and desist from engaging in the conduct 5 31 resulting in the violation, and may assess a civil penalty of 5 32 not more than ten thousand dollars against the person. 5 33 e. The board, by rule, shall ensure that 5 34 telecommunications providers inform their customers of the 5 35 customers' rights under this section. The notification shall 6 1 be made by both of the following: 6 2 (1) Annual inserts in the billing statements mailed to 6 3 those customers. 6 4 (2) Conspicuous publication of the notice in the consumer 6 5 information pages of local telephone directories. 6 6 3. a. A contract made pursuant to a telephone 6 7 solicitation is not valid and enforceable against a consumer 6 8 unless made in compliance with this subsection. 6 9 b. A contract made pursuant to a telephone solicitation 6 10 must satisfy all of the following: 6 11 (1) The contract must be reduced to writing and signed by 6 12 the consumer. 6 13 (2) The contract must comply with all other applicable 6 14 laws and rules. 6 15 (3) The contract must match the description of goods or 6 16 services as principally used in the telephone solicitation. 6 17 (4) The contract must contain the name, address, and 6 18 telephone number of the seller, the total price of the 6 19 contract, and a detailed description of the goods or services 6 20 being sold. 6 21 (5) The contract must contain, in bold, conspicuous type, 6 22 immediately preceding the signature, the following statement: 6 23 "You are not obligated to pay any money unless you sign 6 24 this contract and return it to the seller." 6 25 (6) The contract must not exclude from its terms any oral 6 26 or written representations made by the telephone solicitor to 6 27 the consumer in connection with the transaction. 6 28 c. This subsection does not apply to contractual sales 6 29 specifically regulated under chapter 714D or other law, or to 6 30 the sale of financial services, security sales, or sales 6 31 transacted by insurance companies or their wholly owned 6 32 subsidiaries or agents, or to the sale of cable television 6 33 services to a franchised cable television operator's existing 6 34 subscribers within that cable television operator's franchise 6 35 area, or to any sales where no prior payment is made to the 7 1 merchant and an invoice accompanies the goods or services 7 2 allowing the consumer no less than seven days to cancel or 7 3 return the goods or services without obligation for any 7 4 payment. 7 5 4. a. A merchant who engages a telephone solicitor to 7 6 make or cause to be made a telephone solicitation shall not 7 7 make or submit any charge to a consumer's credit card account 7 8 or make or cause to be made any electronic transfer of funds 7 9 until after the merchant receives from the consumer a copy of 7 10 the contract, signed by the consumer, which complies with this 7 11 section. 7 12 b. This subsection does not apply to chapter 714D or to 7 13 any of the following: 7 14 (1) A transaction made pursuant to prior negotiations in 7 15 the course of a visit by the consumer to a merchant operating 7 16 a retail business establishment which has a fixed permanent 7 17 location and where consumer goods are displayed or offered for 7 18 sale on a continuing basis. 7 19 (2) A transaction in which the consumer may obtain a full 7 20 refund for the return of undamaged and unused goods or a 7 21 cancellation of services notice to the seller within seven 7 22 days after receipt by the consumer, and the seller will 7 23 process the refund within thirty days after receipt of the 7 24 returned merchandise by the consumer. 7 25 (3) A transaction in which the consumer purchases goods or 7 26 services pursuant to an examination of a television, radio, or 7 27 print advertisement or a sample, brochure, or catalog of the 7 28 merchant that contains all of the following: 7 29 (a) The name, address, and telephone number of the 7 30 merchant. 7 31 (b) A description of the goods or services being sold. 7 32 (c) Any limitations or restrictions that apply to the 7 33 offer. 7 34 (4) A transaction in which the merchant is a bona fide 7 35 charitable organization or a newspaper. 8 1 5. A violation of subsection 3 or 4 is a violation of 8 2 section 714.16, subsection 2, paragraph "a". The remedies and 8 3 penalties provided by section 714.16, including but not 8 4 limited to injunctive relief and civil penalties, apply to 8 5 violations of this section. 8 6 6. A consumer who receives more than one telephone 8 7 solicitation within any twelve-month period by or on behalf of 8 8 the same person in violation of this section may do one or 8 9 both of the following: 8 10 a. Bring an action to enjoin further violations. 8 11 b. Bring an action to recover the greater of the 8 12 following: 8 13 (1) Actual monetary damages incurred by the consumer as a 8 14 result of a violation of this section. 8 15 (2) Not less than one hundred dollars but not more than 8 16 two thousand dollars for each violation of this section. 8 17 7. In a civil action resulting from a transaction 8 18 involving a violation of this section, a prevailing plaintiff, 8 19 after judgment in the trial court and exhaustion of all 8 20 appeals, if any, is entitled to costs and reasonable attorney 8 21 fees. 8 22 Sec. 3. IMPLEMENTATION OF ACT. Section 25B.2, subsection 8 23 3, shall not apply to this Act. 8 24 EXPLANATION 8 25 This bill provides that a person using ADAD (automatic 8 26 dailing-announcing device) equipment is prohibited from using 8 27 equipment in a manner that impedes or prevents the function of 8 28 a recipient's caller identification when the caller's ADAD 8 29 equipment is capable of allowing the display of the caller's 8 30 telephone number or identity. 8 31 The bill also provides that a person who uses or employs 8 32 ADAD equipment must identify the person within the first 15 8 33 seconds of a call and provide the recipient of the call with 8 34 the name and telephone number of a person who the recipient 8 35 may call to request that no further calls be made to the 9 1 recipient. 9 2 A person violating the ADAD restrictions provided in this 9 3 bill is guilty of a serious misdemeanor, as provided under 9 4 current law for a violation of Code section 476.57. A serious 9 5 misdemeanor is punishable by confinement for no more than one 9 6 year, and by a fine of at least $250 but not more than $1,500. 9 7 The bill also creates new Code section 476B.1 and 9 8 establishes restrictions on telephone solicitations. 9 9 The bill provides that a telephone solicitor who makes an 9 10 unsolicited telephone solicitation to a residential, mobile, 9 11 or telephonic paging device telephone number shall identify 9 12 the solicitor's self by the solicitor's true first and last 9 13 name, and the business on whose behalf the solicitor is making 9 14 the telephone call, immediately upon making contact by 9 15 telephone with the person who is the object of the telephone 9 16 solicitation. The bill provides that a consumer who is a 9 17 residential, mobile, or telephonic paging device telephone 9 18 subscriber desiring to be placed on a "no telephone 9 19 solicitation calls" listing, indicating that the consumer does 9 20 not wish to receive unsolicited telephone solicitations, may 9 21 notify the utilities division of the department of commerce 9 22 and be placed on that listing upon receipt by the division of 9 23 a $10 initial listing fee. The listing shall be renewed by 9 24 the division annually for each consumer upon receipt of a 9 25 renewal request accompanied by a $5 renewal fee. 9 26 The bill provides that a telephone solicitor shall not make 9 27 or cause to be made any unsolicited telephone solicitation to 9 28 any residential, mobile, or telephonic paging device telephone 9 29 number if the number for that telephone appears in the current 9 30 quarterly listing provided by the division. The bill excludes 9 31 from this prohibition a person licensed pursuant to Code 9 32 chapter 543B who calls an actual or prospective seller or 9 33 lessor of real property when such call is made in response to 9 34 a yard sign or other form of advertisement placed by the 9 35 seller or lessor. 10 1 The bill provides that a contract made pursuant to a 10 2 telephone solicitation call must be reduced to writing and 10 3 signed by the consumer; must comply with all other applicable 10 4 laws and rules; must match the description of goods or 10 5 services as principally used in the telephone solicitation; 10 6 must contain the name, address, and telephone number of the 10 7 seller, the total price of the contract, and a detailed 10 8 description of the goods or services being sold; must contain, 10 9 in bold, conspicuous type, immediately preceding the 10 10 signature, the statement "You are not obligated to pay any 10 11 money unless you sign this contract and return it to the 10 12 seller."; and the contract shall not exclude from its terms 10 13 any oral or written representations made by the telephone 10 14 solicitor to the consumer in connection with the transaction. 10 15 The bill provides that a merchant who engages a telephone 10 16 solicitor to make telephone solicitations shall not charge a 10 17 consumer's credit card account or make any electronic transfer 10 18 of funds until after the merchant receives from the consumer a 10 19 copy of the contract, signed by the consumer, which complies 10 20 with the contract provisions of this new Code section. 10 21 The bill provides that a violation of the contract 10 22 provisions or the prohibition on charging a consumer's credit 10 23 card account or making any electronic transfer of funds until 10 24 after receiving a copy of the signed contract is a violation 10 25 of the consumer protection provisions contained in Code 10 26 section 714.16. The bill provides that the remedies and 10 27 penalties provided in Code section 714.16, including but not 10 28 limited to injunctive relief and civil penalties, apply to 10 29 such violations. 10 30 The bill also provides that a consumer who receives more 10 31 than one telephone solicitation in violation of the new Code 10 32 section within any 12-month period by or on behalf of the same 10 33 person may bring an action to enjoin further violations, and 10 34 may also bring an action to recover the greater of actual 10 35 monetary damages incurred by the consumer as a result of a 11 1 violation or an amount not less than $100 but not more than 11 2 $2,000 for each knowing violation, as well as costs and 11 3 reasonable attorney fees. 11 4 The bill may include a state mandate as defined in Code 11 5 section 25B.3. This bill makes inapplicable Code section 11 6 25B.2, subsection 3, which would relieve a political 11 7 subdivision from complying with a state mandate if funding for 11 8 the cost of the state mandate is not provided or specified. 11 9 Therefore, political subdivisions are required to comply with 11 10 any state mandate included in this bill. 11 11 LSB 1335XS 79 11 12 jj/cls/14.1
Text: SF00399 Text: SF00401 Text: SF00400 - SF00499 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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