December 21, 1999
AN ACT CONCERNING TELEPHONE SOLICITATION
By: Dan Duffy
You asked for an analysis of a draft bill, An Act Concerning Telephone Solicitation.
This bill prohibits telephone solicitors from making, or causing to be made, unsolicited telephonic sales calls to consumers who have registered their wish not to receive them with either (1) a statewide list or (2) a company's own "do not call" list. It authorizes the Department of Consumer Protection (DCP) to operate the statewide "No Sales Solicitation Calls" list or to contract with an organization that has maintained such a list on a national basis for at least two years to operate it.
The bill establishes a non-lapsing account that DCP may use to administer the program. The bill authorizes the DCP commissioner to adopt regulations that can include a fee to obtain the statewide "No Sales Solicitation Calls" list.
The bill prohibits telephone solicitors from calling before 9:00 a.m. and between 5:00 p.m. and 7:00 p.m. Federal law already prohibits calls before 8:00 a.m. and after 9:00 p.m.
The bill also prohibits telephone solicitors from (1) using automated dialing or recorded message devices, (2) sending electronically transmitted facsimiles, and (3) blocking or circumventing a consumer's use of Caller ID or any device that allows a consumer to see the caller's telephone number.
It authorizes the DCP commissioner to adopt implementing regulations.
The bill requires list marketers to (1) delete the names of consumers whose names are on the "No Sales Solicitations Calls" list, (2) delete these names from the database they use to compile the list, and (3) delete the names of consumers who request directly. These requirements do not apply to lists compiled for certain types of solicitations, such as those made by charities.
It makes a violation of its provisions an unfair or deceptive trade practice.
TELEPHONE SOLICITORS DOING BUSINESS IN THIS STATE
Under the bill, a "consumer" is a state resident who is an actual or prospective purchaser, lessee, or recipient of consumer goods or services. "Consumer goods or services" include articles and services acquired primarily for personal, family, or household purposes including financial products such as stocks, bonds, mutual funds, annuities, and other financial products. A solicitor is "doing business in this state" when he is conducting sales calls (1) from a location in this state or (2) from outside of the state to consumers residing in this state.
The bill defines "telephone solicitor" as an individual or business doing business in this state that makes telephonic sales calls. A "telephonic sales call" is a telephone call made by a solicitor to (1) engage in a marketing or sales solicitation, (2) solicit an extension of credit for such goods or services, or (3) obtain information to use in the direct solicitation of a sale or credit extension. "Marketing or sales solicitation" means making a telephone call or sending a message to encourage the purchase or rental of, or investment in, property, goods, or services except those sent (1) with the consumer's prior express permission, (2) by a tax-exempt nonprofit organization, or (3) to promote the success or defeat of a political candidate or referendum question.
Such a call is an "unsolicited telephonic sales call" if it is not made (1) in response to an express request of the person called or (2) primarily in connection with an existing debt or contract that has not been paid or performed.
STATEWIDE "NO SALES SOLICITATIONS CALLS" LIST
The bill allows any consumer who wishes to be on the statewide list to notify DCP in the way and at the times the DCP commissioner prescribes. The bill requires DCP to notify consumers of the establishment of the list. A consumer must be deleted from the list when he requests in writing. DCP must update the list at least quarterly and make it available on request. DCP may charge a reasonable fee for it and distribute it in printed or electronic formats, or both.
COMPANY "DO NOT CALL" LISTS
The bill requires telephone solicitors to establish a list of consumers who inform them that they do not wish to receive unsolicited telephonic sales call from them. This is already required by federal law (16 CFR Part 310). Under the bill, telephone solicitors must place a consumer's name on their list whenever a consumer says that he does not wish to receive unsolicited telephonic sales calls. The bill, in addition to the federal requirement, requires a telephone solicitor to provide a consumer with a confirmation number that is proof that the consumer asked to be placed on the company's "do not call" list.
FACSIMILES AND AUTODIALERS
The bill prohibits telephone solicitors from (1) using autodialers, (2) using recorded messages, and (3) soliciting via electronic facsimiles. A
The bill authorizes the DCP commissioner to adopt regulations that may include (1) provisions concerning the availability and distribution of the statewide list, (2) notice requirements for consumers who wish to put their names on the statewide list, and (3) a schedule of fees to obtain the statewide list.
The bill requires anyone who sells or offers to sell publications or compilations to telephone solicitors for marketing or sales solicitations purposes to exclude the names, addresses, and telephone numbers of everyone registered with the current statewide "No Sales Solicitation Calls" list. The requirement applies whether or not the names on it were obtained from published telephone directories or from other sources. The list maker must also delete such consumer information from the database used to compile the list. Similarly, these requirements apply if someone whose name is not on the list makes a written request for deletion. In this case, the list maker must delete the name within 30 days after receiving the request.
The bill exempts both telephone companies that publish telephone directories or cause them to be published and anyone publishing telephone directories under an agreement with a telephone company from its requirements relating to marketing lists.
CONNECTICUT UNFAIR TRADE PRACTICES ACT
Under (CUTPA), the consumer protection commissioner may investigate complaints, issue cease and desist orders, order restitution in cases involving less than $5,000, enter into consent agreements, ask the attorney general to seek injunctive relief, accept voluntary statements of compliance, and issue regulations defining what constitutes an unfair trade practice. The act also allows individuals to sue. Courts may issue restraining orders; award actual and punitive damages, costs, and reasonable attorney's fees; and impose civil penalties up to $5,000 for willful violations and $25,000 for violating restraining orders.