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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. "ADAD equipment" means automatic dialing-announcing
1 5 device equipment, which is a device or system of devices used,
1 6 either alone or in conjunction with other equipment, for the
1 7 purpose of automatically selecting or dialing telephone
1 8 numbers, for disseminating prerecorded messages to the numbers
1 9 selected or dialed without the use of a live operator.
1 10 2. "Autodialer" means an automatic telephone dialing
1 11 system or equipment that has both the capacity to store or
1 12 produce telephone numbers to be called using a random or
1 13 sequential number generator, and to dial such numbers.
1 14 3. "Board" means the utilities board created in section
1 15 474.1.
1 16 4. "Caller identification" means the display, on the call
1 17 recipient's telephone or related equipment, of the caller's
1 18 telephone number or identity to the recipient of the call.
1 19 5. "Consumer" means an actual or prospective purchaser,
1 20 lessee, or recipient of a consumer good or service.
1 21 6. "Consumer good or service" means any real property or
1 22 any tangible or intangible personal property that is normally
1 23 used for personal, family, or household purposes, including,
1 24 without limitation, any such property intended to be attached
1 25 to or installed in any real property without regard to whether
1 26 such property is so attached or installed, as well as cemetery
1 27 lots and timeshare estates, and any service related to such
1 28 property.
1 29 7. "Doing business in this state" means a business that
1 30 conducts telephone solicitations from a location in this state
1 31 or from other states or nations to consumers located in this
1 32 state.
1 33 8. "Existing business relationship" means an established
1 34 pattern of activity between a consumer and a merchant,
1 35 involving an inquiry, application, purchase, or transaction
2 1 initiated by a consumer regarding consumer goods or services
2 2 offered by a merchant.
2 3 9. "Merchant" means a person who, directly or indirectly,
2 4 offers or makes available to a consumer any consumer good or
2 5 service.
2 6 10. "Predictive dialing technology" means an automated
2 7 dialing system or computer software that utilizes a formula or
2 8 similar mechanism to initiate a certain greater number of
2 9 telephone calls than the number of telephone solicitors
2 10 available to speak to prospective customers, with a goal of
2 11 keeping the available telephone solicitors continually
2 12 speaking to one prospective customer after another.
2 13 11. "Telephone solicitation" means any voice
2 14 communication, wherever originated, transmitted over a
2 15 telephone for the purpose of encouraging action on the part of
2 16 a consumer, including but not limited to any of the following
2 17 actions:
2 18 a. The purchase or rental of consumer goods or services.
2 19 b. Investment in consumer goods or services.
2 20 c. Soliciting a sale of a consumer good or service.
2 21 d. Offering an extension of credit for a consumer good or
2 22 service.
2 23 e. Obtaining information that will or may be used for the
2 24 direct solicitation of a sale of a consumer good or service or
2 25 an offer of extension of credit for such purpose.
2 26 f. Soliciting a donation for any group, organization, or
2 27 purpose.
2 28 12. "Telephone solicitor" means a person doing business in
2 29 this state, who makes or causes to be made a telephone
2 30 solicitation, including, but not limited to, calls made by use
2 31 of ADAD equipment, predictive dialing technology, or an
2 32 autodialer.
2 33 13. "Unsolicited telephone solicitation" means a telephone
2 34 solicitation other than a telephone call made as follows:
2 35 a. In response to an express request of the person called.
3 1 b. Primarily in connection with an existing debt or
3 2 contract, payment, or performance of which has not been
3 3 completed at the time of such call.
3 4 c. To a person with whom the telephone solicitor has an
3 5 existing business relationship.
3 6 d. To a residential subscriber if the telephone
3 7 solicitation is made on behalf of a not-for-profit
3 8 organization exempt from paying taxes under section 501(c) of
3 9 the Internal Revenue Code, and if a bona fide member of the
3 10 exempt organization directly makes such call, and does not
3 11 contract with a telemarketing firm or other third party to
3 12 make the call.
3 13 e. By a person licensed pursuant to chapter 543B who makes
3 14 a telephone call to an actual or prospective seller or lessor
3 15 of real property if the call is made in response to a yard
3 16 sign or other form of real estate sales advertisement placed
3 17 by the seller or lessor.
3 18 Sec. 2. NEW SECTION. 476B.2 RESTRICTIONS ON THE USE OF
3 19 CERTAIN TELEMARKETING EQUIPMENT.
3 20 1. A person shall not do any of the following:
3 21 a. Utilize any ADAD equipment, predictive dialing
3 22 technology, or autodialer to call any person registered on the
3 23 do-not-call list maintained pursuant to section 476B.3.
3 24 b. Make a telephone call to any person registered on the
3 25 do-not-call list maintained pursuant to section 476B.3 while
3 26 the person who is making the call is performing paid telephone
3 27 solicitation services pursuant to contract, including payment
3 28 by acceptance of a percentage of any charitable donations
3 29 collected by the person while performing telephone
3 30 solicitation services.
3 31 c. Operate any ADAD equipment, predictive dialing
3 32 technology, or autodialers in a manner that intentionally
3 33 impedes or prevents the function of a recipient's caller
3 34 identification if the caller's existing equipment is capable
3 35 of allowing the display of the caller's telephone number or
4 1 identity.
4 2 2. a. Except as provided in paragraph "b", a person shall
4 3 not use, employ, or direct another person to use, or contract
4 4 for the use of, ADAD equipment.
4 5 b. Except for ADAD equipment that randomly or sequentially
4 6 selects the telephone numbers for calling, the prohibition in
4 7 paragraph "a" does not apply to any of the following, provided
4 8 that the telephone numbers selected for automatic dialing have
4 9 been screened to exclude any consumer who is included on the
4 10 do-not-call list pursuant to section 476B.3 or who has an
4 11 unlisted telephone number, unless the calls made concern a
4 12 consumer good or service that has been previously ordered or
4 13 purchased:
4 14 (1) Calls made with ADAD equipment by a nonprofit
4 15 organization or by an individual using the calls other than
4 16 for commercial profit-making purposes or fund-raising, if the
4 17 calls do not involve the advertisement or offering for sale,
4 18 lease, or rental of consumer goods or services.
4 19 (2) Calls made with ADAD equipment relating to payment
4 20 for, service of, or warranty coverage of previously ordered or
4 21 purchased consumer goods or services or to persons or
4 22 organizations with an existing business relationship with the
4 23 persons or organizations using the calls.
4 24 (3) Calls made with ADAD equipment relating to the
4 25 collection of lawful debts.
4 26 (4) Calls made with ADAD equipment to members or employees
4 27 of the organization making the calls.
4 28 (5) Calls made with ADAD equipment that use an initial
4 29 prerecorded message of a duration no greater than seven
4 30 seconds prior to a live operator intercept, or calls that
4 31 involve an initial message from a live operator.
4 32 3. Calls made with ADAD equipment must terminate the
4 33 connection with any call within ten seconds after the person
4 34 receiving the call acts to disconnect the call.
4 35 4. Calls made with predictive dialing technology must meet
5 1 a standard that allows a live telephone solicitor to engage in
5 2 conversation with a call recipient within two seconds after
5 3 the call is answered by the call recipient.
5 4 Sec. 3. NEW SECTION. 476B.3 DO-NOT-CALL LISTING.
5 5 1. The secretary of state shall contract with a service
5 6 that maintains a national do-not-call list, so that Iowa
5 7 telephone subscribers who do not wish to receive unsolicited
5 8 telephone solicitations utilizing any ADAD equipment,
5 9 predictive dialing technology, or autodialers may register to
5 10 be included on the list. The contract shall be made in
5 11 consultation with the consumer protection division of the
5 12 department of justice, so that all evidentiary issues and
5 13 other issues related to enforcement are considered.
5 14 2. A residential, mobile, or telephonic paging device
5 15 telephone subscriber who does not wish to receive unsolicited
5 16 telephone solicitations may register to be included on the do-
5 17 not-call list contracted for by the secretary of state
5 18 pursuant to subsection 1.
5 19 3. A telephone solicitor doing business in Iowa shall pay
5 20 a fee to be determined pursuant to subsection 5, and shall
5 21 obtain a subscription to receive the quarterly updated
5 22 subscription listings of consumers in Iowa who have registered
5 23 to be included on the do-not-call list referred to in this
5 24 section.
5 25 4. A telephone solicitor shall not make a telephone call
5 26 with any ADAD equipment, predictive dialing technology, or
5 27 autodialer to any consumer in Iowa whose name is on the do-
5 28 not-call list referred to in this section.
5 29 5. The secretary of state and consumer protection division
5 30 of the department of justice shall adopt rules pursuant to
5 31 chapter 17A to administer this section, including appropriate
5 32 notices to consumers of the types of telephone calls toward
5 33 which such registration is directed, and the charging of a fee
5 34 for subscriptions to the list so that the list income supports
5 35 the cost of maintaining the list.
6 1 Sec. 4. NEW SECTION. 476B.4 INVESTIGATIONS – CIVIL
6 2 ACTIONS – CIVIL PENALTY – OTHER REMEDIES.
6 3 1. A violation of this chapter is a violation of section
6 4 714.16, subsection 2, paragraph "a". All the powers conferred
6 5 upon the attorney general to accomplish the objectives and
6 6 carry out the duties prescribed pursuant to section 714.16 are
6 7 also conferred upon the attorney general to enforce this
6 8 chapter, including, but not limited to, the power to issue
6 9 subpoenas, adopt rules pursuant to chapter 17A which shall
6 10 have the force of law, and seek injunctive relief and civil
6 11 penalties.
6 12 2. In seeking reimbursement pursuant to section 714.16,
6 13 subsection 7, from a person who has committed a violation of
6 14 this chapter, the attorney general may seek an order from the
6 15 court that the person pay to the attorney general on behalf of
6 16 consumers the amounts for which the person would be liable
6 17 under section 476B.5, subsection 2, for each consumer who has
6 18 a cause of action pursuant to section 476B.5, subsection 2.
6 19 Section 714.16, as it relates to consumer reimbursement, shall
6 20 apply to consumer reimbursement pursuant to this section.
6 21 Sec. 5. NEW SECTION. 476B.5 PRIVATE CAUSE OF ACTION –
6 22 DAMAGES AND INJUNCTIVE RELIEF.
6 23 In addition to any other remedies, a consumer who receives
6 24 more than one telephone solicitation within any twelve-month
6 25 period by or on behalf of the same person in violation of any
6 26 provision of this chapter may bring an action against the
6 27 person to recover all of the following:
6 28 1. Preliminary and permanent injunctive relief necessary
6 29 to protect the public against further violations.
6 30 2. The greater of actual monetary damages or a sum not
6 31 less than one hundred dollars but not more than two thousand
6 32 dollars for each telephone call made in violation of this
6 33 chapter.
6 34 3. Costs and reasonable attorney fees.
6 35 Reimbursement awarded to the attorney general pursuant to
7 1 section 714.16, subsection 7, on behalf of a plaintiff who has
7 2 filed an action pursuant to this section concerning the same
7 3 set of facts shall be deducted from any damages awarded to the
7 4 plaintiff in an action filed under this section.
7 5 Sec. 6. NEW SECTION. 476B.6 NOTIFICATION OF RIGHTS.
7 6 The board shall by rule ensure that telecommunications
7 7 providers inform customers of the customers' rights under this
7 8 chapter. The notification shall be made by at least both of
7 9 the following:
7 10 1. Annual inserts in the billing statements mailed to
7 11 customers.
7 12 2. Conspicuous publication of the notice in the consumer
7 13 information pages of the local telephone directories.
7 14 Sec. 7. Section 476.57, Code 2003, is repealed.
7 15 EXPLANATION
7 16 This bill relates to telemarketing.
7 17 The bill provides definitions for a new Code chapter 476B
7 18 in new Code section 476B.1, including but not limited to
7 19 "automatic dialing-announcing device equipment" (ADAD),
7 20 "autodialer", "caller identification", "predictive dialing
7 21 technology", and "telephone solicitation".
7 22 The bill provides in new Code section 476B.2 that a person
7 23 shall not use certain telemarketing equipment to call any
7 24 person registered on the do-not-call list established under
7 25 new Code section 476B.3; shall not call a person registered on
7 26 the do-not-call list while the person making the call is
7 27 performing paid telephone solicitation services pursuant to
7 28 contract; and shall not use certain telemarketing equipment in
7 29 a manner that intentionally impedes or prevents the function
7 30 of a recipient's caller identification.
7 31 The bill prohibits the use of ADAD equipment, except for
7 32 certain defined circumstances and provides that the numbers
7 33 selected for use exclude any consumer on the do-not-call list
7 34 or who has an unlisted telephone number.
7 35 Calls made with ADAD equipment must terminate the telephone
8 1 connection within 10 seconds of a hang-up. Calls made with
8 2 predictive dialing technology must meet a standard that allows
8 3 a telemarketer to engage in conversation with the call
8 4 recipient within two seconds after receipt of the call.
8 5 The bill provides in new Code section 476B.3 that a
8 6 residential, mobile, or telephonic paging device telephone
8 7 subscriber who does not wish to receive unsolicited telephone
8 8 solicitations may register to be included on a do-not-call
8 9 listing contracted for by the secretary of state with a
8 10 service that maintains a national do-not-call list. The
8 11 contract shall be made in consultation with the consumer
8 12 protection division of the department of justice to encompass
8 13 enforcement issues. Telephone solicitors doing business in
8 14 Iowa shall pay a fee and receive a subscription with quarterly
8 15 updates to the do-not-call list. Fees are to be set by rule
8 16 at a level to make the program self-maintaining. A telephone
8 17 solicitor shall not use specified telemarketing equipment to
8 18 call any consumer in Iowa who is on the list.
8 19 The bill provides in new Code section 476B.4 that a
8 20 violation of new Code chapter 476B is a violation of Code
8 21 section 714.16, subsection 2, paragraph "a", relating to
8 22 consumer fraud. The bill provides that the attorney general
8 23 may seek injunctive relief and civil penalties, in addition to
8 24 consumer reimbursement pursuant to Code section 714.16.
8 25 The bill provides in new Code section 476B.5 that a
8 26 consumer who receives more than one telephone solicitation in
8 27 violation of the new Code section within any 12-month period
8 28 by or on behalf of the same person may bring an action to
8 29 enjoin further violations; and may also bring an action to
8 30 recover the greater of actual monetary damages incurred by the
8 31 consumer as a result of a violation or an amount not less than
8 32 $100 but not more than $2,000 for each violation; and costs
8 33 and recovery of reasonable attorney fees.
8 34 New Code section 476B.6 requires adoption of rules by the
8 35 utilities board related to customer notification of rights
9 1 under the bill.
9 2 Current Code section 476.57, relating to ADAD equipment
9 3 usage, is repealed.
9 4 LSB 2138XS 80
9 5 jj/cf/24.1
Text: SF00306 Text: SF00308 Text: SF00300 - SF00399 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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