MONACO, FARNEN, GEORGE, SCHILLING, O'CONNOR, REYNOLDS, LEVIN AND MERIDETH .
Read 1st time January 20, 2000, and 1000 copies ordered printed.
ANNE C. WALKER, Chief Clerk
To repeal section 407.020, RSMo Supp. 1999, relating to telemarketing practices, and to enact in lieu thereof nine new sections relating to the same subject, with penalty provisions.
Section A. Section 407.020, RSMo Supp. 1999, is repealed and nine new sections enacted in lieu thereof, to be known as sections 407.020, 407.1070, 407.1073, 407.1076, 407.1079, 407.1082, 407.1085, 407.1088 and 407.1089, to read as follows:
407.020. 1. The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri, is declared to be an unlawful practice. The use by any person, in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri of the fact that the attorney general has approved any filing required by this chapter as the approval, sanction or endorsement of any activity, project or action of such person, is declared to be an unlawful practice. Any act, use or employment declared unlawful by this subsection violates this subsection whether committed before, during or after the sale, advertisement or solicitation.
2. Nothing contained in this section shall apply to:
(1) The owner or publisher of any newspaper, magazine, publication or printed matter wherein such advertisement appears, or the owner or operator of a radio or television station which disseminates such advertisement when the owner, publisher or operator has no knowledge of the intent, design or purpose of the advertiser; or
(2) Any institution or company that is under the direction and supervision of the director of the department of insurance, director of the division of credit unions, or director of the division of finance, unless the directors of such divisions specifically authorize the attorney general to implement the powers of this chapter or such powers are provided to either the attorney general or a private citizen by statute.
3. Any person who willfully and knowingly engages in any act, use, employment or practice declared to be unlawful by this section with the intent to defraud shall be guilty of a class D felony.
4. It shall be the duty of each prosecuting attorney and circuit attorney in their respective jurisdictions to commence any criminal actions under this section, and the attorney general shall have concurrent original jurisdiction to commence such criminal actions throughout the state where such violations have occurred.
5. It shall be an unlawful practice for any long-term care facility, as defined in section 660.600, RSMo, except a facility which is a residential care facility I or a residential care facility II, as defined in section 198.006, RSMo, which makes, either orally or in writing representation to residents, prospective residents, their families or representatives, regarding the quality of care provided, or systems or methods utilized for assurance or maintenance of standards of care, to refuse to provide copies of documents which reflect the facility's evaluation of the quality of care, except that the facility may remove information that would allow identification of any resident. If the facility is requested to provide any copies, a reasonable amount, as established by departmental rule, may be charged.
6. Any long-term care facility, as defined in section 660.600, RSMo, which commits an unlawful practice under this section shall be liable for damages in a civil action of up to one thousand dollars for each violation, and attorney's fees and costs incurred by a prevailing plaintiff, as allowed by the circuit court.
407.1070. As used in sections 407.1070 to 407.1088, the following terms shall mean:
(1) "Consumer" or "purchaser", a natural person who is or may be required to pay for goods or services offered by a telemarketer through telemarketing;
(2) "Established business relationship", a prior or existing relationship formed by a voluntary two-way communication between a seller or telemarketer 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 telemarketer, which relationship has not been previously terminated by either party;
(3) "Goods or services", any real property or any tangible or intangible personal property or services of any kind provided or offered to a person;
(4) "Investment opportunity", anything tangible or intangible that is offered for sale, sold or traded based wholly or in part on representations, either express or implied, about past, present or future income, profit or appreciation;
(5) "Material aspect or element", any factor likely to significantly affect a person's choice of, or conduct regarding, goods or services, including currency values and comparative expressions of value including, but not limited to, percentages or multiples;
(6) "Prize", anything offered or purportedly offered and given or purportedly given to a person by chance;
(7) "Promptly", immediately at the beginning of any call initiated by a telemarketer to a consumer;
(8) "Seller", any person who, in connection with a telemarketing transaction, provides, offers to provide, or arranges for others to provide goods or services to the customer in exchange for consideration;
(9) "Solicitation", a written or oral notification or advertisement that meets any one of the following criteria:
(a) The notification or advertisement is transmitted by or on behalf of the seller and by any printed, audio, video, cinematic, telephonic or electronic means; or
(b) In the case of a notification or advertisement other than by telephone when either of the following conditions is met:
a. The notification or advertisement is followed by a telephone call from a telemarketer or seller; or
b. The notification or advertisement invites a response by telephone, and through that response, a telemarketer attempts to make a sale of goods or services;
(10) "Telemarketer", any person who in connection with telemarketing, initiates or receives telephone calls to or from a consumer in the state, or when the person acting in connection with telemarketing is located within this state when such calls are initiated or received. A telemarketer includes, but is not limited to, any such person that is an owner, operator, officer, director or partner to the management activities of a business;
(11) "Telemarketing", a plan, program or campaign which is conducted to induce the purchase of goods or services by use of one or more telephones and which involves more than one telephone call.
407.1073. 1. A telemarketer shall provide all of the following when contacting a consumer:
(1) Promptly, and in a clear and conspicuous manner to the consumer receiving the call the following:
(a) That the purpose of the telephone call is to make a sale;
(b) The telemarketer's identifiable name and the company on whose behalf the solicitation is being made; and
(c) The nature of the goods or services being sold;
(2) Before a consumer pays for merchandise offered for sale through telemarketing, the telemarketer shall disclose, in a clear and conspicuous manner, the following:
(a) The seller or telemarketer's identifiable name and the address or telephone number where the seller or telemarketer can be reached;
(b) The total cost and quantity of the goods or services that are the subject of the telemarketing sales call;
(c) Any material restriction, limitations or conditions to purchase the goods or services that are the subject of a telemarketing sales call;
(d) Any material aspect of the performance, quality, efficacy, nature or basic characteristics of goods or services that are the subject of a telemarketing sales call;
(e) Any material aspect of the nature or terms of the refund, cancellation, exchange or repurchase policies;
(f) Any material aspect of an investment opportunity being offered, including benefits, the price of the land or other investment, the location of the investment, and the reasonable likelihood of success of the investment opportunity;
(g) Any material elements of a prize promotion, including:
a. A description of the prize;
b. All material conditions to receive or redeem the prize;
c. The actual number of each prize to be awarded;
d. The odds of being able to receive the prize and, if the odds are not calculable in advance, the factors and methods used in calculating the odds;
e. That no purchase or payment of any kind is required to win a prize or to participate in a prize promotion; and
f. The no-purchase or no-payment method of participating in the prize promotion, with either instructions on how to participate or an address or local or toll-free telephone number to which customers may write or call for information on how to participate.
2. A telemarketer shall not misrepresent, directly or by implication, any of the following:
(1) A description of the prize;
(2) Its market value;
(3) The actual number of each prize to be awarded;
(4) The date by which the prize will be awarded; or
(5) Any material aspect of the performance, quality, efficacy, nature or basic characteristics of goods or services that are the subject of a telemarketing sales call.
3. It is an unfair and deceptive act or practice to misrepresent the requirements of this section.
4. It is a violation of sections 407.1070 to 407.1085 for any seller or telemarketer to engage in any other unfair or deceptive conduct which will create a likelihood of confusion or misunderstanding to any reasonable consumer.
5. Willful and knowing failure to comply with the provisions of this section is a class A misdemeanor.
407.1076. 1. It is a prohibited telemarketing act or practice and a violation of sections 407.1070 to 407.1085 for any seller or telemarketer to engage in the following conduct:
(1) Assist, support or provide substantial assistance to any telemarketer when the seller knew or should have known that the telemarketer was engaged in any act in violation of sections 407.1070 to 407.1085;
(2) Request a fee in advance to remove derogatory information from or improve a person's credit history or credit record;
(3) Request or receive payment in advance from a person, to recover or otherwise aid in the return of money or any other item lost by the consumer in a prior telemarketing transaction;
(4) Obtain or submit for payment a check, draft or other form of negotiable paper drawn on a person's checking, savings or bankcard account without the consumer's express written authorization; or
(5) Procure the services of any professional delivery, courier or other pick-up service to obtain immediate receipt or possession of a consumer's payment, unless the goods are delivered with the opportunity to inspect before any payment is collected.
2. A willful and knowing violation of the provisions of this section shall constitute a class A misdemeanor.
407.1079. 1. It is an abusive telemarketing act or practice and a violation of sections 407.1070 to 407.1085 for any seller or telemarketer to engage in the following conduct:
(1) Threaten, intimidate or use profane or obscene language;
(2) Cause the telephone to ring repeatedly, continuously and excessively in an intended telemarketing call;
(3) Engage any person repeatedly or continuously with behavior a reasonable person would deem to be annoying, abusive or harassing;
(4) Initiate a telemarketing call to a person, when that person has stated previously that he or she does not wish to receive solicitation calls from that seller;
(5) Engage in telemarketing to a person's residence at any time other than between 8:00 a.m. and 9:00 p.m. local time, at the called person's location; or
(6) Engage in any other conduct which would be considered abusive to any reasonable consumer.
2. The state may seek injunctive or declaratory relief for any violations of this section.
407.1082. 1. A telemarketer shall keep for a period of twenty-four months from the date the record is produced, records of all financial transactions, written notices, disclosures and acknowledgments, in the form, manner, format or place as they keep such records in the ordinary course of business, including but not limited to:
(1) All substantially different advertising, brochures, telemarketing scripts and promotional materials;
(2) The name and last known address of each prize recipient and the prize awarded;
(3) The name and last known address of each customer, the goods or services purchased, the date such goods or services were shipped or provided and the amount paid by the customer for the goods or services;
(4) The name, any fictitious name used, the last known home address and telephone number, and the job title for all current and former employees directly involved in telephone sales, provided, that if the seller permits fictitious names to be used by employees, each fictitious name must be traceable to only one specific employee; and
(5) All written authorizations required to be provided or received pursuant to sections 407.1070 to 407.1085.
2. In the event of any dissolution or termination of the telemarketer's business, the principal of that telemarketer shall maintain all records as required pursuant to this section. In the event of any sale, assignment or other change in ownership of the seller's business, the successor shall maintain all records required pursuant to this section.
407.1085. In addition to the remedies already provided in sections 407.1070 to 407.1082:
(1) Any consumer that suffers a loss or harm as a result of an unfair and deceptive act or practice pursuant to section 407.1073 shall recover actual damages, attorney's fees, court costs and any other remedies provided by law. When the telemarketer has willfully and knowingly engaged in conduct that violates section 407.1073 with the intent to harm or with reckless disregard for harm to the consumer, the consumer may also recover punitive damages;
(2) Any consumer that suffers a loss or harm as a result of a prohibited act or practice pursuant to section 407.1076 shall recover actual damages, attorney's fees, court costs and any other remedies provided by law. When the telemarketer has willfully and knowingly engaged in conduct that violates section 407.1076 with the intent to harm or with reckless disregard for harm to the consumer, the consumer may also recover punitive damages;
(3) Any consumer that suffers harm as a result of an abusive act or practice pursuant to section 407.1079 shall receive injunctive or declaratory relief;
(4) The attorney general may, on behalf of residents of this state who have suffered a loss or harm as a result of a violation of sections 407.1070 to 407.1085, seek actual damages. When the telemarketer has willfully and knowingly engaged in conduct that violates sections 407.1070 to 407.1085 with the intent to harm or with reckless disregard for harm to the consumer, the attorney general may also recover punitive damages.
407.1088. The provisions of sections 407.1070 to 407.1088 shall not apply to:
(1) Telephone calls in which the sale of goods or services is not completed, and payment or authorization of payment is not required, until after a face-to-face sales presentation by the telemarketer;
(2) Telephone calls initiated by a consumer that:
(a) Are not the result of any advertisement by a seller or telemarketer;
(b) Are in response to an advertisement through any media, other than direct mail or telemarketing, which discloses the name of the seller and the identity of the goods or services; provided, however, that this exemption shall not apply to calls initiated by the consumer in response to an advertisement that offers a prize or investment opportunity, or is used to engage in telemarketing activities prohibited by sections 407.1070 to 407.1088;
(c) Are in response to direct mail solicitations that clearly and conspicuously disclose and do not misrepresent the material information required by section 407.1073; provided, however, that this exemption does not apply to calls initiated by the consumer in response to an advertisement that offers a prize or investment opportunity, or is to engage in telemarketing activities prohibited by sections 407.1070 to 407.1088; or
(d) Are in response to the mailing of a catalog which contains a written description or illustration of the goods or services offered for sale, includes the business address of the seller, includes multiple pages of written materials or illustrations and has been issued not less frequently than once a year, when the seller or telemarketer does not contact consumers by telephone but only receives calls initiated by consumers in response to the catalog and during those calls takes orders only without further solicitation. For purposes of this paragraph, the term "further solicitation" does not include providing the consumer with information about, or attempting to sell, any other item included in the same catalog which prompted the consumer's call or in a substantially similar catalog; and
(3) Telephone calls or messages:
(a) To any consumer with such consumer's prior express invitation or permission;
(b) To any consumer with whom the seller has an established business relationship; or
(c) By a tax-exempt nonprofit organization.
407.1089. Nothing in sections 407.1070 to 407.1088 shall apply to an entity regulated by the public service
commission or the Federal Communications Commission.