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