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S1547......................................................by STATE AFFAIRS
TELEPHONE SOLICITATION - Amends the Telephone Solicitation Act to prohibit
telephone solicitors from contacting persons who do not appear on a list of
those wishing to be contacted; to provide for a publication by telephone
companies of a list of persons who want to be contacted by telephone
solicitors; to expand legal causes of action by persons who receive
unwanted telephone solicitations; and to provide damages.
03/07 Senate intro - 1st rdg - to printing
03/08 Rpt prt - to St Aff
S1547
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1547
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO TELEPHONE SOLICITATIONS; AMENDING SECTION 48-1001, IDAHO CODE, TO
3 PROVIDE FURTHER LEGISLATIVE FINDINGS AND INTENT; AMENDING SECTION 48-1002,
4 IDAHO CODE, TO FURTHER DEFINE TERMS; AMENDING SECTION 48-1003, IDAHO CODE,
5 TO PROVIDE FURTHER UNLAWFUL ACTS REGARDING TELEPHONE SOLICITATIONS; AMEND-
6 ING SECTION 48-1004, IDAHO CODE, TO PROVIDE FURTHER TELEPHONE SOLICITOR
7 DUTIES; AMENDING SECTION 48-1005, IDAHO CODE, TO PROVIDE THAT TELEPHONE
8 SOLICITORS MAY BE EXEMPT FROM THE PROVISIONS OF SECTION 48-1004, IDAHO
9 CODE, ONLY IF FEDERAL LAWS MANDATE THE EXEMPTION; AMENDING SECTION
10 48-1007, IDAHO CODE, TO EXPAND PRIVATE CAUSES OF ACTION, TO PROVIDE DAM-
11 AGES AND TO PROVIDE FOR ATTORNEY'S FEES; AND AMENDING SECTION 48-1009,
12 IDAHO CODE, TO PROVIDE THAT TELEPHONE CORPORATIONS PROVIDING BASIC LOCAL
13 EXCHANGE SERVICE SHALL IDENTIFY IN THE PAGES OF LOCAL TELEPHONE DIRECTOR-
14 IES THOSE PARTIES WHO WANT TO RECEIVE TELEPHONE SOLICITATIONS, TO PROVIDE
15 THAT PUBLICATION OF THAT INFORMATION IN LOCAL TELEPHONE DIRECTORIES SHALL
16 RELIEVE TELEPHONE CORPORATIONS FROM CERTAIN LEGAL LIABILITY AND TO MAKE A
17 TECHNICAL CORRECTION.
18 Be It Enacted by the Legislature of the State of Idaho:
19 SECTION 1. That Section 48-1001, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 48-1001. LEGISLATIVE FINDINGS AND INTENT. (1) The use of telephones for
22 commercial solicitation is rapidly increasing. This form of communication
23 offers unique benefits, but also entails special risks and the potential for
24 abuse. Idaho families and their ability to spend time together is of the high-
25 est priority.
26 (2) Families are most able to be together weekdays during dinnertime.
27 (3) Telemarketers interrupt dinnertime with intrusive, aggravating tele-
28 phone calls.
29 (4) The dinnertime of Idaho families between 5:00 p.m. and 8:00 p.m.
30 should be free of the interruption and distraction of telephone solicitations.
31 (5) In 1991 the United States congress found that "Many consumers are
32 outraged over the proliferation of intrusive, nuisance calls to their homes
33 from telemarketers." (Telephone consumer protection act Dec. 20, 1991. P.L.
34 102-243, section 2, 105 Stat. 2394).
35 (6) Legislation has failed to protect Idaho families from unsolicited and
36 unwanted telemarketing calls, primarily from outside the state.
37 (7) Sellers have no right to use the time and telephone lines and invade
38 the peace and privacy of Idaho families who do not wish to buy from them.
39 (8) Sellers do not have to telephone. Many types of media are available
40 in which to advertise, and mail individually targets consumers.
41 (9) Because Idaho consumers now can buy anything they want from their
42 homes, successful telemarketing sells them what they do not need.
43 (10) To have peace and privacy at dinnertime, Idaho families should not
2
1 have to stop answering their telephone, thereby missing or delaying emergency
2 or wanted calls.
3 (11) Telemarketers should telephone only those Idaho citizens who declare
4 their interest in receiving such calls.
5 (12) Telemarketers, not Idaho citizens, should bear all costs of collect-
6 ing the names of and listing those who wish to receive telemarketing calls.
7 (13) Many Idaho residents and businesses have lost money or suffered harm
8 primarily as a result of out-of-state telemarketing abuse. For the general
9 welfare of the public and in order to protect the integrity of the
10 telemarketing industry, the following provisions of law are deemed necessary.
11 (214) It is the intent of the legislature in enacting this chapter to
12 safeguard the public against deceit and financial hardship, to insure, foster
13 and encourage competition and fair dealings among telephone solicitors by
14 requiring adequate disclosure, and to prohibit representations that have the
15 capacity, tendency, or effect of misleading a purchaser. The provisions of
16 this chapter are remedial, and shall be construed and applied liberally to
17 accomplish the above-stated purposes.
18 (315) This chapter shall be known and may be cited as the "Idaho Tele-
19 phone Solicitation Act."
20 SECTION 2. That Section 48-1002, Idaho Code, be, and the same is hereby
21 amended to read as follows:
22 48-1002. DEFINITIONS. In this chapter:
23 (1) "Business days" means all days of the week except Saturdays and Sun-
24 days and all other legal holidays as defined in section 73-108, Idaho Code.
25 (2) "Charitable organization" means an organization organized for chari-
26 table purposes and which has tax exempt status pursuant to section 501(c)(3)
27 of the Internal Revenue Code.
28 (3) "Conducting business" means making telephone solicitations either to
29 or from locations within the state of Idaho.
30 (34) "Goods" means any property, tangible or intangible, real, personal
31 or mixed, and any other article, commodity, or thing of value.
32 (45) "Lawful telephone solicitation" includes only the following tele-
33 phone solicitations:
34 (a) Calls received by a party or a party's telephone between 9:00 a.m.
35 and 5:00 p.m. and between 8:00 p.m. and 9:00 p.m. local time;
36 (b) Calls made in response to a request or inquiry by the called party;
37 (c) Calls made by a charitable organization, a public agency or volun-
38 teers on behalf of the organization or agency to members of the organiza-
39 tion or agency or to persons who have made a donation or expressed an
40 interest in making a donation of any kind including goods, services or
41 real estate;
42 (d) Calls limited to polling or soliciting the expression of ideas, opin-
43 ions or votes;
44 (e) Business to business contacts;
45 (f) Calls made pursuant to a written contract made within five (5) years
46 prior to the making of any telephone call signed by the party and giving
47 the caller permission to make the call; or
48 (g) Calls to a party that are identified in the party's local telephone
49 directory as a party that wishes to receive any telephone solicitation.
50 (6) "Minor" means any person less than eighteen (18) years of age.
51 (57) "Newspaper of general circulation" means a newspaper which holds a
52 second class mailing permit from the United States postal service, has at
53 least two hundred (200) subscribers, is made up of at least four (4) pages of
3
1 at least five (5) columns, is not produced through any type of mimeographing
2 process, and has been published or distributed within the state of Idaho on a
3 weekly basis for at least seventy-eight (78) consecutive weeks, or on a daily
4 basis, which is defined to be no less than five (5) days of any one (1) week,
5 at least twelve (12) months immediately preceding any telephone solicitation
6 done by or on behalf of such newspaper.
7 (68) "Party" means a residential telephone customer of a telecommunica-
8 tions company.
9 (9) "Person" means natural persons, partnerships, both limited and gen-
10 eral, corporations, both foreign and domestic, companies, trusts, business
11 entities, associations, both incorporated and unincorporated, and any other
12 legal entity or any group associated in fact although not a legal entity, or
13 any agent, assign, heir, servant, employee or representative thereof.
14 (710) "Purchaser" means a person who is solicited to become or does become
15 obligated to a telephone solicitor.
16 (811) "Services" means any work, labor, help, assistance or instruction
17 wherever provided or performed.
18 (912) "Telephone directory of general circulation" means a directory con-
19 taining telephone numbers of individual residents and/or businesses which is
20 published on a community-wide or regional basis and which is widely available
21 to persons residing in such community or region through free distribution or
22 direct purchase of said directory without the requirement of other purchases
23 or affiliations.
24 (103) "Telephone solicitation" means:
25 (a) Any unsolicited telephone call or facsimile transmission to a pur-
26 chaser for the purpose of asking, inducing, inviting, requesting, or
27 encouraging the purchaser to purchase or invest in goods or services or
28 make a donation; or
29 (b) Any communication in which:
30 (i) A free gift, award, or prize is offered, or in which it is rep-
31 resented or implied that goods or services are offered below the reg-
32 ular price of the goods or services; and
33 (ii) A return telephone call is invited or the communication is fol-
34 lowed up by a call to the purchaser by the telephone solicitor; and
35 (iii) It is intended during the course of the return or follow-up
36 call with the purchaser that an agreement to purchase, or a purchase
37 be made.
38 (c) For purposes of this subsection, "communication" means a written or
39 oral statement or notification or advertisement transmitted to the pur-
40 chaser through any means.
41 (114) "Telephone solicitor" means any person who, on his own the person's
42 behalf or through other persons or through use of an automatic dialing-
43 announcing device, engages in a telephone solicitation.
44 (125) "Unsolicited advertisement" means any advertisement offering goods
45 or services which is transmitted to any person without that person's prior
46 express invitation or permission unless an established business relationship
47 exists between the sender and recipient which has not been terminated by
48 either party.
49 (136) "Written confirmation" means a writing that includes the following
50 information: the date of purchase, the telephone solicitor's complete address
51 and registration number, a listing of all goods and/or services purchased, a
52 listing of the price of each good and/or service purchased, the total obliga-
53 tion incurred by the purchaser, and the notice of cancellation as set forth in
54 subsection (2) of section 48-1004, Idaho Code.
4
1 SECTION 3. That Section 48-1003, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 48-1003. UNLAWFUL ACTS. (1) It is an unlawful act for a telephone solici-
4 tor to:
5 (a) Make any telephone solicitation other than a lawful telephone solici-
6 tation as defined in section 48-1002, Idaho Code;
7 (b) If during a lawful telephone solicitation the called party states a
8 desire not to be called again, make a subsequent telephone solicitation at
9 that number;
10 (c) Intimidate or torment any person of normal and reasonable
11 sensitivities in connection with a telephone solicitation;
12 (bd) Refuse to hang up and free the purchaser's line immediately once
13 requested to do so by the purchaser;
14 (ce) Misrepresent the price, quality, or availability of the goods or
15 services being offered to the purchaser, or not to disclose all material
16 matters relating directly or indirectly to the offered goods or services;
17 (df) Advertise, represent, or imply that the person has the approval or
18 endorsement of any government, governmental office, or agency, unless such
19 is the fact;
20 (eg) Advertise, represent, or imply that the person has a valid registra-
21 tion number when the person does not;
22 (fh) Utilize any device or method to block or mislead the intended
23 recipient of the call as to the identity of the solicitor, or the trade
24 name of the person being represented by the solicitor on a caller identi-
25 fication telecommunication device;
26 (gi) Fail to comply with the provisions of section 48-603A, Idaho Code;
27 (hj) Violate any applicable provision or requirement of this chapter; and
28 (ik) Send an unsolicited advertisement to a telephone facsimile machine.
29 (2) Any violation of the provisions of this chapter is an unlawful,
30 unfair, and deceptive act or practice in trade or commerce for the purpose of
31 applying the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
32 SECTION 4. That Section 48-1004, Idaho Code, be, and the same is hereby
33 amended to read as follows:
34 48-1004. TELEPHONE SOLICITOR DUTIES. (1) Telephone solicitors shall:
35 (a) Register with the attorney general at least ten (10) days prior to
36 conducting business in Idaho. All registrations shall be valid for a
37 period of one (1) year from the effective date of the registration. Any
38 information reported in the application which has changed during the year
39 shall be reported within two (2) weeks of such change to the attorney gen-
40 eral and shall be included in an amended registration form filed at the
41 time the telephone solicitor renews his registration. Registrations may be
42 renewed annually by applying to the attorney general and paying a regis-
43 tration renewal fee;
44 (b) File with the attorney general an irrevocable consent appointing the
45 attorney general as an agent to receive civil process in any action, suit,
46 or proceeding brought under this chapter;
47 (c) Provide his immediately, or after a greeting of up to three (3)
48 words, his or her name, the name of the telephone solicitor company or
49 organization if the caller is an employee telephone solicitor, and the
50 city from which the telephone call is being made, and to any party who
51 requests it, the registration number to any purchaser who requests the
52 registration number of the telephone solicitor;
5
1 (d) Orally inform the purchaser at the time the purchase is completed of
2 his right to cancel as provided in subsection 48-1004(2), Idaho Code, and
3 state the telephone solicitor's registration number issued by the attorney
4 general;
5 (e) Provide accurate and complete information when making a registration
6 application and possess and maintain a valid registration as required in
7 this chapter; and
8 (f) Give the full street address, including the telephone number, of the
9 telephone solicitor if a sale or purchase is completed.
10 (2) Unless the purchaser has an unqualified right to return the goods or
11 cancel the services and receive a full refund, the telephone solicitor shall
12 send a written confirmation to the purchaser, which shall contain the follow-
13 ing statement in ten (10) point bold face type, which sets forth a purchaser's
14 right to cancel any agreement made pursuant to a telephone solicitation under
15 this section:
16 NOTICE OF CANCELLATION
17 You may cancel this transaction, without any penalty or obliga-
18 tion whatsoever, within three business days of the date in which you
19 receive this written confirmation.
20 If you cancel, all payments or other consideration which may
21 have already been made by you will be returned within ten business
22 days following receipt by the telephone solicitor of your cancella-
23 tion notice.
24 If you cancel, you must return the goods to the telephone solic-
25 itor at the address listed below and at the telephone solicitor's
26 risk and expense within twenty-one days of the date you receive back
27 from the telephone solicitor the payments or consideration you have
28 already made.
29 To cancel this transaction, deposit in the mail or deliver a
30 signed and dated copy of this cancellation notice or any other writ-
31 ten notice to (Name of telephone solicitor) , at
32 (Address of seller's place of business) not later than mid-
33 night of the third business day after which you received this notice.
34 I hereby cancel this transaction.
35 (Date)
36 (Buyer's signature)
37 SECTION 5. That Section 48-1005, Idaho Code, be, and the same is hereby
38 amended to read as follows:
39 48-1005. EXEMPTIONS. (1) The following tTelephone solicitors are may be
40 exempt from the provisions of section 48-1004, Idaho Code:, only if federal
41 law mandates the exemption.
42 (a) A person engaging in telephone solicitations where:
43 (i) The solicitation is an isolated transaction and not done in the
44 course of a pattern of repeated transactions of like nature; or
45 (ii) Less than sixty percent (60%) of such person's prior year's
46 sales were made as a result of telephone solicitations as defined in
47 this chapter.
48 (b) A person making a telephone solicitation where the purchaser con-
49 tacted has previously purchased goods or services from the person or the
50 business entity for which the person is calling.
51 (c) A person making a telephone solicitation:
52 (i) Without the intent to make or obtain provisional acceptance of
53 a purchase during the telephone solicitation; and
6
1 (ii) Who only arranges for the major sales presentation to be made
2 at a later face-to-face meeting between the person and the purchaser,
3 and the later face-to-face meeting is not for the purpose of collect-
4 ing the payment or delivering any item purchased.
5 (d) A person whose business is licensed by any federal or state of Idaho
6 governmental agency, except the secretary of state office, which has the
7 power to revoke any license issued by the agency.
8 (e) A person making a telephone solicitation solely for purposes of sell-
9 ing a subscription to or advertising in a newspaper or telephone directory
10 of general circulation.
11 (f) A person making a telephone solicitation solely for purposes of sell-
12 ing a magazine, periodical, book, or musical or video recording:
13 (i) Under which the telephone solicitor provides the purchaser with
14 a form which the purchaser may use to instruct the telephone solici-
15 tor not to ship the merchandise; and
16 (ii) Which complies with the federal trade commission's "use of neg-
17 ative option plans by sellers in commerce rule," 16 CFR 425, regula-
18 tion concerning "use of negative option plans by sellers in commerce"
19 or a continuity plan, subscription arrangement, series arrangement or
20 single purchase under which the telephone solicitor ships goods to a
21 purchaser who has consented in advance to receive such goods and the
22 purchaser is given the opportunity to review goods for at least seven
23 (7) days and to receive a full refund for return of undamaged goods.
24 (g) A person who has at least one (1) business location in the state
25 under the same name as that used in connection with telephone
26 solicitations and ninety percent (90%) of the person's business involves
27 the purchaser's obtaining services and products at the person's business
28 location.
29 (h) An issuer or subsidiary of an issuer that has a class of securities
30 which is subject to section 12 of the securities exchange act of 1934
31 (15 USC sec. 781) and which is either registered or exempt from registra-
32 tion under paragraphs (A), (B), (C), (E), (F), (G) or (H) of subsection
33 (g)(2) of that section.
34 (i) A person who solicits sales by periodically publishing and delivering
35 a catalog of the person's merchandise to purchasers if the catalog:
36 (i) Contains a written description or illustration of each item
37 offered for sale;
38 (ii) Includes the business address or home office address of the
39 telephone solicitor;
40 (iii) Includes at least twenty-four (24) pages of written material
41 and illustrations and are distributed in more than one state; and
42 (iv) Has an annual circulation by mailing of not less than two hun-
43 dred fifty thousand (250,000).
44 (2) In any action, suit, or proceeding to enforce the provisions of this
45 chapter, the burden of proving an exemption is upon the person claiming it.
46
47 SECTION 6. That Section 48-1007, Idaho Code, be, and the same is hereby
48 amended to read as follows:
49 48-1007. PRIVATE CAUSES OF ACTION AND REMEDIES. (1) A party who receives
50 or whose telephone records record receipt of a telephone solicitation in
51 violation of this chapter may bring suit against the telephone solicitor in
52 the district court where the telephone solicitation was received or where the
53 telephone solicitor's principal place of business or residence is located.
7
1 (2) A telephone solicitor that makes a telephone solicitation in viola-
2 tion of this chapter shall pay the recipient of the telephone solicitation one
3 thousand dollars ($1,000).
4 (a) A party may record a telephone solicitation without informing the
5 telephone solicitor of the recording or may prove a telephone solicitation
6 by testimony or otherwise.
7 (b) Proof of violation of this chapter shall be by a preponderance of the
8 evidence.
9 (c) A party prevailing in any action under this chapter shall be awarded
10 attorney's fees.
11 (3) Any person who purchases goods or services pursuant to a telephone
12 solicitation and thereby suffers damages as a result of any act, conduct, or
13 practice declared unlawful in this chapter shall have the same rights and
14 remedies in seeking and obtaining redress under this chapter as those granted
15 under the Idaho consumer protection act, chapter 6, title 48, Idaho Code.
16 (24) If a telephone solicitor violates any applicable provision of this
17 chapter, any contract of sale or purchase is null and void and unenforceable.
18 (35) If a telephone solicitor fails to deliver the goods or services con-
19 tracted for, pursuant to the federal trade commission's "mail order merchan-
20 dise rule," 16 CFR 435, the contract to purchase is null and void.
21 (46) Any contract, agreement to purchase, or written confirmation exe-
22 cuted by a purchaser which purports to waive any of the purchaser's rights
23 under this chapter is against public policy and shall be null and void and
24 unenforceable.
25 (57) The remedies provided for in this chapter are not exclusive, and
26 shall be in addition to any other procedures or remedies for any violation or
27 conduct provided for in any other law.
28 SECTION 7. That Section 48-1009, Idaho Code, be, and the same is hereby
29 amended to read as follows:
30 48-1009. CONSUMER NOTIFICATION -- RULE MAKING RULEMAKING BY THE IDAHO
31 PUBLIC UTILITIES COMMISSION. (1) Telephone corporations providing basic local
32 exchange service, as defined in section 62-603, Idaho Code, shall inform cus-
33 tomers of the provisions of this chapter and shall identify in the pages of
34 local telephone directories those parties who want to receive telephone
35 solicitations. Publication of such information in local telephone directories
36 and notification in an annual insert in a billing statement mailed to custom-
37 ers or by conspicuous publication in the consumer information pages of local
38 telephone directories shall relieve telephone corporations of any and all lia-
39 bility under this chapter to purchasers or others claiming to have suffered
40 harm from telephone solicitors or by operation of the provisions of this chap-
41 ter.
42 (2) The public utilities commission shall by rule prescribe the form of
43 such notice.
Statement of Purpose
RS 10067C1
The purpose of this legislation is to amend Title 48, Idaho Code, to provide that
no telemarketing disruptions shall occur during 5 p.m. and 8 p.m. Provides
definitions, private causes of action and remedies.
FISCAL IMPACT
None
Contact: Marilyn Schwam
514 S. Polk
Moscow, Idaho 83843
882-4190
STATEMENT OF PURPOSE/FISCAL IMPACT S 1547