HB0091 - Telephone solicitation.
2001 |
State of Wyoming |
01LSO-0063.E1 ENGROSSED |
HOUSE BILL NO. HB0091
Telephone solicitation.
Sponsored by: Joint Judiciary Interim Committee
A BILL
for
1 AN ACT relating to
consumer protection; restricting
2
unsolicited telephonic sales calls as specified;
3
prohibiting calls to consumers listed on the national do-
4
not-call list; prohibiting the blocking of caller
5
identification services; restricting the use of automated
6
telephone dialing systems; specifying investigative powers;
7
providing definitions; conforming related provisions;
8
providing an appropriation; and providing for an effective
9
date.
10
11 Be It Enacted by the Legislature of the State of Wyoming:
12
13 Section 1. W.S. 40-12-301 through 40-12-304 are
14 created to read:
15
16 ARTICLE 3
17 TELEPHONE SOLICITATION
Page 1
1
2 40-12-301. Definitions.
3
4 (a) As used in this article:
5
6 (i) "Caller
identification service" means a type
7
of telephone service or system which allows telephone
8
subscribers to see the telephone numbers from which
9
incoming telephone calls are dialed;
10
11 (ii) "Consumer"
means an actual or prospective
12 purchaser, lessee or recipient of
consumer goods or
13 services;
14
15 (iii) "Consumer
goods or services" means any
16 real property or any tangible or
intangible personal
17 property or any services which are
marketed and intended to
18 be used for personal, family or
household purposes,
19 including, without limitation, any
such property intended
20 to be attached to or installed in
any real property without
21 regard to whether it is so attached
or installed, as well
22 as cemetery lots and timeshare
estates;
23
Page 2
1 (iv) "Doing
business in this state" refers to
2
businesses which conduct telephonic sales calls from a
3
location in Wyoming or from other states or nations to
4
consumers located in Wyoming;
5
6 (v) "Enforcing
authority" means the Wyoming
7
attorney general;
8
9 (vi) "Established
business relationship" means a
10 prior or existing relationship
formed by a voluntary two-
11 way communication between a seller
or telephone solicitor
12 and a consumer with or without an
exchange of
13 consideration, on the basis of an
inquiry, application,
14 purchase or transaction by the
consumer regarding products
15 or services offered by such seller
or telephone solicitor
16 which relationship has not been
previously terminated by
17 either party;
18
19 (vii) "Merchant"
means a person who, directly or
20 indirectly, offers or makes available
to consumers any
21 consumer goods or services;
22
23 (viii) "National
do-not-call list" means the
24 list maintained by the Telephone
Preference Service of the
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1 Direct
Marketing Association, Inc., Farmingdale, New York,
2
or its successor organization;
3
4 (ix) "Telephonic
sales call" means a call made
5
by a telephone solicitor to a consumer, for the purpose of
6
soliciting a sale of any consumer goods or services, for
7
the purpose of soliciting an extension of credit for
8
consumer goods or services, or for the purpose of obtaining
9
information that will or may be used for the direct
10 solicitation of a sale of consumer
goods or services or an
11 extension of credit for such
purposes;
12
13 (x) "Telephone
solicitor" means any natural
14 person, business entity or a
subsidiary or affiliate
15 thereof, doing business in this
state, who makes or causes
16 to be made a telephonic sales call,
including, but not
17 limited to, calls made by use of
automated dialing devices;
18
19 (xi) "Unsolicited
telephonic sales call" means a
20 telephonic sales call other than a
call made:
21
22 (A) In response
to an express request of
23 the person called;
24
Page 4
1 (B) Primarily
in connection with an
2
existing debt or contract, payment or performance of which
3
has not been completed at the time of the call;
4
5 (C) To any
person with whom the telephone
6
solicitor had an established business relationship; or
7
8 (D) By a
telephone solicitor or merchant
9
making less than one hundred (100) unsolicited calls per
10 year.
11
12 40-12-302. Telephone solicitations.
13
14 (a) Any
telephone solicitor or merchant who makes an
15 unsolicited telephonic sales call to
a residential or
16 mobile telephone number shall
disclose at the outset of the
17 conversation and in a clear and
conspicuous manner to the
18 person receiving the call, the
following information:
19
20 (i) The name of the individual caller;
21
22 (ii) The
identity of the telephone solicitor or
23 merchant and the telephone number
from which the call was
Page 5
1 placed,
and a
telephone number and address at which the
2
telephone solicitor or merchant may be contacted;
3
4 (iii) That the
purpose of the call is to sell
5
consumer goods or services; and
6
7 (iv) The nature
of the consumer goods or
8
services.
9
10 (b) No
telephone solicitor or merchant shall
11 willfully make or cause to be made
any unsolicited
12 telephonic sales call to any
residential, mobile or
13 telephonic paging device telephone
number more than sixty
14 (60) days after the number for that
telephone appears in
15 the national do-not-call list. This
subsection does not
16 apply to any person who calls an
actual or prospective
17 seller or lessor of real property
when the call is made in
18 response to a yard sign or other
form of advertisement
19 placed by the seller or lessor.
20
21 (c) No
telephone solicitor or merchant who makes an
22 unsolicited telephonic sales call to
the telephone line of
23 a residential subscriber in this
state shall knowingly
24 utilize any method to block or
otherwise circumvent the
Page 6
1 subscriber's use of a caller identification service.
2
3 40-12-303. Automated sales calls.
4
5 (a) No
telephone solicitor or merchant shall make or
6
knowingly allow a telephonic sales call to be made if the
7
call involves an automated system for the selection or
8
dialing of telephone numbers or the playing of a recorded
9
message when a connection is completed to a number called.
10
11 (b) Subsection
(a) of this section does not prohibit
12 the use of an automated telephone
dialing system with live
13 messages if:
14
15 (i) The calls
are made or messages given solely
16 in response to calls initiated by
the persons to whom the
17 automatic calls or live messages are
directed;
18
19 (ii) The
telephone numbers selected for
20 automatic dialing have been screened
to exclude any
21 telephone subscriber who is included
on the national do-
22 not-call list and any unlisted
telephone number; or
23
Page 7
1 (iii) The call is
to a consumer with whom the
2
caller had an established business relationship.
3
4 40-12-304. Investigation of complaints;
enforcement;
5 attorney's
fees.
6
7 (a) The
enforcing authority shall investigate any
8
complaints received concerning violations of this article.
9
If, after investigating any complaint, the enforcing
10 authority finds that there has been
a violation of this
11 article, the enforcing authority may
bring an action to
12 impose a civil penalty and to seek
other relief, including
13 injunctive relief, as the court
deems appropriate against
14 the telephone solicitor or merchant.
The civil penalty
15 imposed shall be as follows:
16
17 (i) For the
first violation, not to exceed five
18 hundred dollars ($500.00);
19
20 (ii) For the
second violation, not to exceed two
21 thousand five hundred dollars
($2,500.00);
22
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1 (iii) For the
third and subsequent violations,
2
not to exceed five thousand dollars ($5,000.00) per
3
violation.
4
5 (b) An action
under this section may be brought in
6
the district court of the county in which the telephone
7
solicitor or merchant resides or had its principle place of
8
business or in the district court of Laramie county
9
Wyoming. The civil penalty provided under this section may
10 be recovered in any action brought
under this article by
11 the enforcing authority, or the
enforcing authority may
12 terminate any investigation or action
upon agreement by the
13 telephone solicitor or merchant to
pay a stipulated civil
14 penalty. The enforcing authority or
the court may waive any
15 civil penalty if the telephone
solicitor or merchant has
16 previously made full restitution or
reimbursement or has
17 paid actual damages to the consumers
who have been injured
18 by the violation.
19
20 (c) In
any civil litigation resulting from a
21 transaction involving a violation of
this article, the
22 prevailing party, after judgment in
the trial court and
23 exhaustion of all appeals, if any,
shall receive reasonable
24 attorney's fees and costs from the
nonprevailing party.
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1
2 (d) The
remedies provided by this section are not
3
exclusive and shall not preclude the imposition of any
4
other relief or criminal penalties provided by law.
5
6 Section 2. W.S. 6-6-104(b) is amended to read:
7
8 6-6-104. Unlawful automated telephone
solicitation;
9 exceptions;
penalties.
10
11 (b) This
section shall not prohibit the use of an
12 automated telephone system or device
described under
13 subsection (a) of this section for
purposes of informing
14 purchasers of the receipt,
availability or delivery of
15 goods or services, any delay or
other pertinent information
16 on the status of any purchased goods
or services or
17 responding to an inquiry initiated
by any person, or the
18 use of an automated telephone dialing system as authorized
19 by W.S. 40-12-303.
20
21 Section
3. There is appropriated from the general
22 fund seventy thousand dollars
($70,000.00) to be expended
23 by the attorney general for the
purpose of administrating
24 this act.
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1
2 Section 4. This act is effective July 1, 2001.
3
4 (END)
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