ORIGINAL HOUSE                                   ENGROSSED

BILL   NO.  0091

 

ENROLLED ACT NO. 108,  HOUSE OF REPRESENTATIVES

 

FIFTY-SIXTH LEGISLATURE OF THE STATE OF WYOMING

2001 GENERAL SESSION

 

 

 

 

AN ACT relating to consumer protection; restricting
unsolicited telephonic sales calls as specified;
prohibiting calls to consumers listed on the national do-
not-call list; prohibiting the blocking of caller
identification services; restricting the use of automated
telephone dialing systems; specifying investigative powers;
providing for service of process; providing definitions;
conforming related provisions; providing an appropriation;
and providing for an effective date.

 

Be It Enacted by the Legislature of the State of Wyoming:

 

Section 1.  W.S. 40-12-301 through 40-12-305 are
created to read:

 

ARTICLE 3

TELEPHONE SOLICITATION

 

40-12-301.  Definitions.

 

(a)  As used in this article:

 

(i)  "Caller identification service" means a type
of telephone service or system which allows telephone
subscribers to see the telephone numbers from which
incoming telephone calls are dialed;

 

(ii)  "Consumer" means an actual or prospective
purchaser, lessee or recipient of consumer goods or
services;

 

(iii)  "Consumer goods or services" means any
real property or any tangible or intangible personal
property or any services which are marketed and intended to
be used for personal, family or household purposes,

 

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including, without limitation, any such property intended
to be attached to or installed in any real property without
regard to whether it is so attached or installed, as well
as cemetery lots and timeshare estates;

 

(iv)  "Doing business in this state" refers to
businesses which conduct telephonic sales calls from a
location in Wyoming or from other states or nations to
consumers located in Wyoming;

 

(v)  "Enforcing authority" means the Wyoming
attorney general;

 

(vi)  "Established business relationship" means a
prior or existing relationship formed by a voluntary two-
way communication between a seller or telephone solicitor
and a consumer with or without an exchange of
consideration, on the basis of an inquiry, application,
purchase or transaction by the consumer regarding products
or services offered by such seller or telephone solicitor
which relationship has not been previously terminated by
either party;

 

(vii)  "Merchant" means a person who, directly or
indirectly, offers or makes available to consumers any
consumer goods or services;

 

(viii)  "National do-not-call list" means the
list maintained by the Telephone Preference Service of the
Direct Marketing Association, Inc., Farmingdale, New York,
or its successor organization;

 

(ix)  "Telephonic sales call" means a call made
by a telephone solicitor to a consumer, for the purpose of
soliciting a sale of any consumer goods or services, for
the purpose of soliciting an extension of credit for

 

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consumer goods or services, or for the purpose of obtaining
information that will or may be used for the direct
solicitation of a sale of consumer goods or services or an
extension of credit for such purposes;

 

(x)  "Telephone solicitor" means any natural
person, business entity or a subsidiary or affiliate
thereof, doing business in this state, who makes or causes
to be made a telephonic sales call, including, but not
limited to, calls made by use of automated dialing devices;

 

(xi)  "Unsolicited telephonic sales call" means a
telephonic sales call other than a call made:

 

(A)  In response to an express request of
the person called;

 

(B)  Primarily in connection with an
existing debt or contract, payment or performance of which
has not been completed at the time of the call;

 

(C)  To any person with whom the telephone
solicitor had an established business relationship; or

 

(D) By a telephone solicitor or merchant
making less than two hundred twenty-five (225) unsolicited
calls per year.

 

40-12-302.  Telephone solicitations.

 

(a)  Any telephone solicitor or merchant who makes an
unsolicited telephonic sales call to a residential or
mobile telephone number shall disclose at the outset of the
conversation and in a clear and conspicuous manner to the
person receiving the call, the following information:

 

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(i)  The name of the individual caller;

 

(ii)  The identity of the telephone solicitor or
merchant and a telephone number and address at which the
telephone solicitor or merchant may be contacted;

 

(iii)  That the purpose of the call is to sell
consumer goods or services; and

 

(iv)  The nature of the consumer goods or
services.

 

(b)  No telephone solicitor or merchant shall
willfully make or cause to be made any unsolicited
telephonic sales call to any residential, mobile or
telephonic paging device telephone number more than sixty
(60) days after the number for that telephone appears in
the national do-not-call list. This subsection does not
apply to any person who calls an actual or prospective
seller or lessor of real property when the call is made in
response to a yard sign or other form of advertisement
placed by the seller or lessor.

 

(c)  No telephone solicitor or merchant who makes an
unsolicited telephonic sales call to the telephone line of
a residential subscriber in this state shall knowingly
utilize any method to block or otherwise circumvent the
subscriber's use of a caller identification service.

 

40-12-303.  Automated sales calls.

 

(a)  No telephone solicitor or merchant shall make or
knowingly allow a telephonic sales call to be made if the
call involves an automated system for the selection or
dialing of telephone numbers or the playing of a recorded

 

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message when a connection is completed to a number called.

 

(b)  Subsection (a) of this section does not prohibit
the use of an automated telephone dialing system with live
messages if:

 

(i)  The calls are made or messages given solely
in response to calls initiated by the persons to whom the
automatic calls or live messages are directed;

 

(ii)  The telephone numbers selected for
automatic dialing have been screened to exclude any
telephone subscriber who is included on the national do-
not-call list and any unlisted telephone number; or

 

(iii)  The call is to a consumer with whom the
caller had an established business relationship.

 

40-12-304.  Investigation of complaints; enforcement;
attorney's fees.

 

(a)  The enforcing authority shall investigate any
complaints received concerning violations of this article.
If, after investigating any complaint, the enforcing
authority finds that there has been a willful violation of
this article, the enforcing authority may bring an action
to impose a civil penalty and to seek other relief,
including injunctive relief, as the court deems appropriate
against the telephone solicitor or merchant. The civil
penalty imposed shall be as follows:

 

(i)  For the first violation, not to exceed five
hundred dollars ($500.00);

 

(ii)  For the second violation, not to exceed two
thousand five hundred dollars ($2,500.00);

 

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(iii)  For the third and subsequent violations,
not to exceed five thousand dollars ($5,000.00) per
violation.

 

(b)  An action under this section may be brought in
the district court of the county in which the telephone
solicitor or merchant resides or had its principle place of
business or in the district court of Laramie county
Wyoming. The civil penalty provided under this section may
be recovered in any action brought under this article by
the enforcing authority, or the enforcing authority may
terminate any investigation or action upon agreement by the
telephone solicitor or merchant to pay a stipulated civil
penalty. The enforcing authority or the court may waive any
civil penalty if the telephone solicitor or merchant has
previously made full restitution or reimbursement or has
paid actual damages to the consumers who have been injured
by the violation.

 

(c)  In any civil litigation resulting from a
transaction involving a violation of this article, the
prevailing party, after judgment in the trial court and
exhaustion of all appeals, if any, shall receive reasonable
attorney's fees and costs from the nonprevailing party.

 

(d)  The remedies provided by this section are not
exclusive and shall not preclude the imposition of any
other relief or criminal penalties provided by law.

 

(e)  It shall be an affirmative defense to an action
brought by an enforcing authority for a violation of W.S.
40-12-302(b) that the person called a consumer listed on
the national do-not-call list as a result of a good faith
error.

 

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40-12-305.  Notice of activity and consent to service
of process.

 

Each telephone solicitor or merchant making unsolicited
telephonic sales calls and doing business in this state
shall file with the attorney general of this state a
statement giving notice of this fact and designating the
secretary of state of this state its agent for service of
process, unless a lawful resident is designated as agent
for service of process, for any alleged violation of this
article. The written notice shall further set forth the
intention of the telephone solicitor or merchant to abide
by the provisions of this article. Compliance with this
section shall not subject any telephone solicitor or
merchant to the provisions or consequences of any other
statute of this state.

 

Section 2.  W.S. 6-6-104(b) is amended to read:

 

6-6-104.  Unlawful automated telephone solicitation;
exceptions; penalties.

 

(b)  This section shall not prohibit the use of an
automated telephone system or device described under
subsection (a) of this section for purposes of informing
purchasers of the receipt, availability or delivery of
goods or services, any delay or other pertinent information
on the status of any purchased goods or services or
responding to an inquiry initiated by any person, or the
use of an automated telephone dialing system as authorized
by W.S. 40-12-303
.

 

Section 3.  There is appropriated from the general
fund thirty-five thousand dollars ($35,000.00) to be
expended by the attorney general for the purpose of
administrating this act.

 

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Section 4.  This act is effective July 1, 2001.

 

(END)

 

 

 

 

                                     

Speaker of the House                  President of the Senate

 

                                              

                 Governor                     

                                              

                 TIME APPROVED: _________     

                 DATE APPROVED: _________     

 

I hereby certify that this act originated in the House.

 

 

Chief Clerk

 

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