HB 1634 -- Telemarketing Practices

Co-Sponsors:  Kissell, Green, Foley, O'Toole

This bill regulates certain telemarketing and marketing
practices.

Current law exempts companies or institutions under the
regulation of the Department of Insurance or the Division of
Finance from restrictions regarding certain merchandising
practices.  The bill exempts state-regulated credit unions from
these restrictions on merchandising practices.

Telemarketers must provide certain identifying information
specified in the bill when contacting a consumer and prior to
taking a consumer's payment for merchandise.  The bill prohibits
misrepresenting these requirements and engaging in other unfair
or deceptive conduct that creates a likelihood of confusion to a
reasonable consumer.  Willful and knowing non-compliance with
these provisions is a class A misdemeanor.

Prohibited telemarketing acts include assisting any telemarketer
when the seller knew the telemarketer was engaged in prohibited
acts; requesting a fee in advance to remove derogatory
information from a person's credit history or to aid in the
return of money or other lost item in a prior telemarketing
transaction; obtaining payment from a consumer's account without
express written authorization; and using a professional courier
to obtain the consumer's payment unless the goods are delivered
with the opportunity to inspect prior to payment.  Willful and
knowing violation of these provisions is a class A misdemeanor.

Abusive telemarketing acts include the use of obscene language
or intimidation; repeated or continued calling; calling a person
who has previously stated that he or she does not want to
receive calls from that seller; calling before 8:00 a.m. or
after 9:00 p.m. local time of the consumer; or any other conduct
that would be considered abusive to any reasonable consumer.
The state is authorized to seek injunctive or declaratory relief
for violations of these provisions.

The bill requires telemarketers to maintain certain records for
24 months, such as financial transactions, brochures, and
identifying information of prize recipients, customers, and
current and former employees, and written authorizations.

Any consumer suffering a loss as a result of an unfair or
deceptive act or a prohibited act will recover actual damages,
attorney's fees, court costs, and other lawful remedies.  The
consumer may also recover punitive damages when a telemarketer
has willfully engaged in such conduct or prohibited act with the
intent to harm or with reckless disregard for harm to the
consumer.

Any consumer suffering harm as a result of an abusive act will
receive injunctive or declaratory relief.  The Attorney General
is authorized to seek actual damages on behalf of residents who
have been harmed and may recover punitive damages when
telemarketers willfully and knowingly violate the provisions of
the bill with the intent to harm or with reckless disregard for
harm to the consumer.

The following are exempt from the requirements of the bill:

(1)  Telephone calls where the sale of goods or services is not
completed and payment is not required until after a face-to-face
sales presentation by the telemarketer;

(2)  Telephone calls initiated by the customer that are not the
result of an advertisement by a seller or telemarketer or are in
response to advertisements, direct mail solicitations, or
catalog mailings;

(3)  Telephone calls or messages to persons who have given prior
express permission to be called, calls to persons with whom the
caller has an established business relationship, or calls made
by a tax-exempt nonprofit organization; and

(4)  Any entity regulated by the Public Service Commission or
Federal Communications Commission.