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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