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H.B. 45
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TELEPHONE SOLICITATION REGULATION
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Evan L. Olsen
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AN ACT RELATING TO CONSUMER PROTECTION; RECODIFYING AND AMENDING
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THE PROVISIONS OF THE TELEPHONE AND FACSIMILE SOLICITATION ACT AND THE
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TELEPHONE FRAUD PREVENTION ACT; CREATING A STATE-RUN "DO NOT CALL
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LIST"; PROVIDING FOR ADMINISTRATIVE, CIVIL, AND CRIMINAL PENALTIES; AND
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PROVIDING A PRIVATE RIGHT OF ACTION.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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54-8b-18, as enacted by Chapter 113, Laws of Utah 1999
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ENACTS:
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13-26a-101, Utah Code Annotated 1953
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13-26a-102, Utah Code Annotated 1953
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13-26a-103, Utah Code Annotated 1953
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13-26a-104, Utah Code Annotated 1953
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13-26a-105, Utah Code Annotated 1953
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13-26a-106, Utah Code Annotated 1953
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13-26a-107, Utah Code Annotated 1953
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13-26a-108, Utah Code Annotated 1953
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13-26a-109, Utah Code Annotated 1953
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13-26a-110, Utah Code Annotated 1953
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13-26a-111, Utah Code Annotated 1953
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13-26a-112, Utah Code Annotated 1953
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13-26a-113, Utah Code Annotated 1953
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13-26a-114, Utah Code Annotated 1953
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REPEALS:
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13-25a-101, as enacted by Chapter 26, Laws of Utah 1996
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13-25a-102, as last amended by Chapter 77, Laws of Utah 1998
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13-25a-103, as last amended by Chapter 77, Laws of Utah 1998
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13-25a-104, as enacted by Chapter 26, Laws of Utah 1996
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13-25a-105, as enacted by Chapter 26, Laws of Utah 1996
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13-25a-106, as enacted by Chapter 26, Laws of Utah 1996
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13-25a-107, as enacted by Chapter 26, Laws of Utah 1996
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13-26-1, as enacted by Chapter 154, Laws of Utah 1990
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13-26-2, as last amended by Chapter 92, Laws of Utah 1997
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13-26-3, as last amended by Chapter 124, Laws of Utah 1999
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13-26-4, as last amended by Chapter 170, Laws of Utah 1996
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13-26-5, as last amended by Chapter 189, Laws of Utah 1994
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13-26-8, as last amended by Chapter 26, Laws of Utah 1995
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13-26-10, as enacted by Chapter 184, Laws of Utah 1991
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13-26-11, as last amended by Chapter 77, Laws of Utah 1998
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
13-26a-101
is enacted to read:
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CHAPTER 26a. TELECOMMUNICATIONS SOLICITATION ACT
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13-26a-101. Title.
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This chapter is known as the "Telecommunications Solicitation Act."
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Section 2.
Section
13-26a-102
is enacted to read:
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13-26a-102. Definitions.
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As used in this chapter:
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(1) "Advertisement" means material offering for sale, or advertising the availability or
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quality of, any property, goods, or services.
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(2) (a) "Automated telephone dialing system" means equipment used to:
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(i) store or produce telephone numbers;
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(ii) call a stored or produced number; and
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(iii) connect the number called with a recorded message or artificial voice.
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(b) "Automated telephone dialing system" does not include equipment used with a burglar
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alarm system, voice messaging system, fire alarm system, or other system used in an emergency
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involving the immediate health or safety of a person.
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(3) "Continuity plan" means a shipment, with the prior express consent of the buyer, at
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regular intervals of similar special-interest products. A continuity plan is distinguished from a
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subscription arrangement by the absence of a binding commitment period or purchase amount.
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(4) "Division" means the Division of Consumer Protection.
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(5) "Do not call list" means the registry maintained by the division under Section
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13-26a-105
.
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(6) "Email" means the process or act of:
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(a) scanning or encoding text or images for conversion into electronic signals for
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transmission; or
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(b) receiving electronic signals and reproducing them as a duplicate of the original text or
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image.
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(7) "Established business relationship" means a relationship that:
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(a) is based on inquiry, application, purchase, or transaction regarding products or services
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offered;
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(b) is formed by a voluntary two-way communication between a person making a
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telephone solicitation and a person to whom a telephone solicitation is made; and
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(c) has not been terminated by either party.
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(8) "Facsimile machine" means equipment used for:
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(a) scanning or encoding text or images for conversion into electronic signals for
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transmission; or
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(b) receiving electronic signals and reproducing them as a duplicate of the original text or
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image.
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(9) "Fictitious personal name" means a name other than an individual's legal name.
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(10) "Material statement" or "material fact" means information that a person of ordinary
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intelligence or prudence would consider important in deciding whether or not to accept an offer
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extended through a telephone solicitation.
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(11) "Negative response" means a statement from a party stating the party does not wish
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to listen to the sales presentation or participate in the solicitation presented in the telephone call.
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(12) "Premium" means a gift, bonus, prize, award, certificate, or other document by which
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a prospective purchaser is given a right, chance, or privilege to purchase or receive goods or
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services as an inducement to a prospective purchaser to purchase other goods or services.
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(13) "Telephone call" means a voice, written, or other message of communication
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facilitated and accomplished by means of electronic transmission, including calls made by use of
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an automated telephone dialing system, facsimile or email.
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(14) (a) "Telephone solicitation", "sale," "selling," or "solicitation of sale", whether
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directed to a residence or business, means the initiation of a telephone call or message, including
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calls made by use of an automated telephone dialing system, facsimile, or email:
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(i) for the purpose of:
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(A) encouraging the purchase or rental of, or investment in, property, goods, or services,
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tangible or intangible;
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(B) soliciting a sale of or extension of credit for property or services to the person called;
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(C) soliciting information that will be used for:
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(I) the direct solicitation of a sale of property or services to the person called; or
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(II) an extension of credit to the person called for a sale of property or services; or
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(D) soliciting a charitable donation involving the exchange of any premium, prize, gift,
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ticket, subscription, or other benefit in connection with any appeal made for a charitable purpose;
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and
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(ii) in which:
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(A) (I) the seller solicits the sale over the telephone;
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(II) the purchaser's agreement to purchase is made over the telephone; and
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(III) the purchaser, over the telephone, pays for or agrees to commit to payment for goods
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or services prior to or upon receipt by the purchaser of the goods or services;
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(B) the solicitor, not exempt under this chapter, induces a prospective purchaser over the
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telephone, to make and keep an appointment that directly results in the purchase of goods or
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services by the purchaser that would not have occurred without the telephone solicitation by the
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solicitor;
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(C) the seller offers or promises a premium to a prospective purchaser if:
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(I) the seller induces the prospective purchaser to initiate a telephone contact with the
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telephone soliciting business; and
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(II) the resulting solicitation meets the requirements of Subsection (14)(a)(i); or
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(D) the solicitor solicits a charitable donation involving the exchange of any premium,
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prize, gift, ticket, subscription, or other benefit in connection with any appeal made for a charitable
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purpose by an organization that is not otherwise exempt under this chapter.
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(b) A solicitation of sale or telephone solicitation is considered complete when made,
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whether or not the person receiving the solicitation agrees to the sale or to make a charitable
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donation.
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(15) "Telephone soliciting business" means a sole proprietorship, partnership, limited
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liability company, corporation, or other association of individuals engaged in a common effort to
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solicit sales regulated under this chapter.
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(16) "Telephone solicitor" or "solicitor" means any natural person, firm, organization,
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partnership, association, limited liability company, corporation, or other entity that makes, places,
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or receives telephone calls, including calls made by use of an automated telephone dialing system,
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facsimile, or email, for the purpose of selling or solicitation of sales as defined in Subsection (14),
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whether the calls originate in Utah or are received in Utah.
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(17) "Unsolicited telephone call" means a telephone call, including calls made by use of
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an automated telephone dialing system, facsimile, or email, for a commercial purpose or to seek
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a financial donation other than a call made:
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(a) in response to an express request of the person called;
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(b) primarily in connection with an existing debt or contract, payment or performance of
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which has not been completed at the time of the call; or
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(c) to any person with whom the telephone solicitor has an existing business relationship.
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Section 3.
Section
13-26a-103
is enacted to read:
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13-26a-103. Registration and bond required -- Subscription to do not call list.
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(1) (a) Each telephone soliciting business engaging in telephone solicitation or sales in this
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state shall register annually with the division prior to doing or continuing to do business in this
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state.
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(b) The registration form shall designate an agent residing in this state who is authorized
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by the telephone soliciting business to receive service of process in any action brought by this state
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or a resident of this state.
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(c) If a telephone soliciting business fails to designate an agent to receive service or fails
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to appoint a successor to the agent, the business' application for an initial or renewal registration
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shall be denied, and any current registration shall be suspended until an agent is designated.
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(2) The division may impose an annual registration fee set pursuant to Section
63-38-3.2
.
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(3) (a) Each telephone soliciting business engaging in telephone solicitation or sales in this
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state shall obtain and maintain the following security:
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(i) a performance bond issued by a surety authorized to transact surety business in this
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state;
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(ii) an irrevocable letter of credit issued by a financial institution authorized to do business
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in this state; or
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(iii) a certificate of deposit held in this state in a depository institution regulated by the
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Department of Financial Institutions.
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(b) The bond, letter of credit, or certificate of deposit shall be payable to the division for
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the benefit of any consumer who incurs damages as the result of any telephone solicitation or sales
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violation of this chapter.
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(c) The division may recover from the bond, letter of credit, or certificate of deposit
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investigative costs, attorneys' fees, and other costs of collecting and distributing funds under this
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section and the costs of promoting consumer education, but only if the consumer has first
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recovered full damages.
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(d) A telephone soliciting business shall keep a bond, certificate of deposit, or letter of
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credit in force for one year after it notifies the division in writing that it has ceased all activities
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regulated by this chapter.
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(e) The amount to be posted in the form of a bond, irrevocable letter of credit, or certificate
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of deposit shall be set at a reasonable level in relation to the individual circumstances of the
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telephone soliciting business by the director of the division and shall not exceed:
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(i) $50,000 if neither the telephone soliciting business nor any affiliated person has been
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found in an administrative, civil, or criminal proceeding to have violated this chapter within three
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years of the date of application; or
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(ii) $75,000 if the telephone soliciting business or any affiliated person has been found in
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an administrative, civil, or criminal proceeding to have violated this chapter within three years of
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the date of application.
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(f) For purposes of Subsection (3)(e) an "affiliated person" means a current contractor,
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director, employee, officer, owner, or partner of the telephone soliciting business.
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(4) The division may establish by rule the registration requirements for telephone soliciting
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businesses in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
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(5) Each telephone solicitation business registered under this section shall maintain a
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current subscription to the do not call list created in Section
13-26a-105
.
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(6) The division director may revoke a registration under this section for any violation of
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this chapter.
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(7) An administrative proceeding conducted by the division under this chapter shall
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comply with the requirements of Title 63, Chapter 46b, Administrative Procedures Act.
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Section 4.
Section
13-26a-104
is enacted to read:
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13-26a-104. Exemptions from registration.
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(1) The following, while subject to all other sections of this chapter, are exempt from the
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registration and bonding requirements of Section
13-26a-103
:
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(a) a broker, agent, dealer, or sales professional licensed under the licensure laws of this
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state, when soliciting sales within the scope of his license;
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(b) the solicitation of sales by:
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(i) a public utility that is regulated under Title 54, Public Utilities, or by an affiliate of the
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utility;
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(ii) a newspaper of general circulation;
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(iii) a solicitation of sales made by a broadcaster licensed by any state or federal authority;
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or
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(iv) a nonprofit organization if no part of the net earnings from the sale inures to the
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benefit of any member, officer, trustee, or serving board member of the organization, or individual,
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or family member of an individual, holding a position of authority or trust in the organization;
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(c) the solicitation of any depository institution as defined in Section
7-1-103
, a subsidiary
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of a depository institution, personal property broker, securities broker, investment adviser,
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consumer finance lender, or insurer subject to regulation by an official agency of this state or the
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United States;
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(d) the solicitation of a contract for the maintenance or repair of goods previously
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purchased from the person:
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(i) who is making the solicitation; or
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(ii) on whose behalf the solicitation is made;
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(e) the solicitation of previous customers of the business on whose behalf the call is made
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if the person making the call:
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(i) does not offer any premium in conjunction with a sale or offer;
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(ii) is not selling an investment or an opportunity for an investment that is not registered
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with any state or federal authority; and
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(iii) is not regularly engaged in telephone sales;
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(f) the solicitation of a sale that is an isolated transaction and not done in the course of a
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pattern of repeated transactions of a like nature;
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(g) the solicitation of a person by a retail business establishment that has been in operation
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for at least five years in Utah under the same name as that used in connection with telemarketing
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if both of the following occur on a continuing basis:
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(i) products are displayed and offered for sale at the place of business, or services are
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offered for sale and provided at the place of business; and
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(ii) a majority of the seller's business involves the buyer obtaining the products or services
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at the seller's place of business; and
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(h) a telephone marketing service company that provides telemarketing sales services
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under contract to sellers if:
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(i) it has been doing business regularly with customers in Utah for at least five years under
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the same business name and with its principal office in the same location;
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(ii) at least 75% of its contracts are performed on behalf of persons exempted from
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registration under this chapter; and
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(iii) neither the company nor its principals have been enjoined from doing business or
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subjected to criminal actions for their business activities in this or any other state.
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(2) The person claiming an exemption under this section has the burden of proving that
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the person is entitled to the exemption.
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Section 5.
Section
13-26a-105
is enacted to read:
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13-26a-105. Do not call list.
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(1) The division shall:
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(a) no later than July 1, 2000, establish and thereafter maintain a registry of telephone
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numbers of persons who do not wish to receive telephone solicitations;
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(b) update the do not call list at least once every three months;
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(c) make rules pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
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to establish the methods by which telephone numbers can be added to and deleted from the do not
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call list; and
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(d) promote and publicize the do not call list as appropriate.
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(2) No fee shall be charged to add or remove any telephone number on the do not call list.
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(3) If, pursuant to 47 U.S.C. Section 227(c)(3), the Federal Communications Commission
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establishes a single national registry of telephone numbers of subscribers who do not wish to
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receive telephone solicitations, the division shall include in the do not call list that part of the
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national registry that relates to this state.
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(4) (a) Upon request, the division shall make updated copies of the do not call list available
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for a yearly subscription fee of $500.
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(b) The yearly subscription fee shall be waived if:
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(i) the organization requesting the do not call list is exempt from taxation under section
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501(c)(3) or section 501(c)(6) of the Internal Revenue Code; or
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(ii) payment of the subscription fee would unduly burden, as defined by rule by the
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division, the ability of the person requesting the do not call list to conduct business or otherwise
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operate within this state.
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Section 6.
Section
13-26a-106
is enacted to read:
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13-26a-106. Prohibited conduct for telephone solicitations.
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(1) It is unlawful for any person:
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(a) to solicit prospective purchasers on behalf of a telephone soliciting business that is not
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registered with the division or exempt from registration under this chapter;
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(b) to use a fictitious personal name in connection with a telephone solicitation;
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(c) to make or cause to be made any untrue material statement, or fail to disclose a material
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fact necessary to make any statement made not misleading, whether in connection with a telephone
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solicitation or a filing with the division;
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(d) to make or authorize the making of any misrepresentation about its compliance with
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this chapter to any prospective or actual purchaser;
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(e) to fail to refund within 30 days any amount due a purchaser who exercises the right to
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cancel under Section
13-26a-110
;
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(f) to make a telephone solicitation to a residential or business telephone before 9 a.m. or
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after 8 p.m. local time unless prior express consent is given to call at a different time;
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(g) to make, or knowingly allow to be made, a telephone solicitation to any telephone
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number that is included on the most recent version of the do not call list which is available to the
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public at the time of the solicitation;
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(h) to fail to advise a purchaser at the time any solicitation is made of the purchaser's right
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to cancel the sale under Section
13-26a-110
; or
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(i) to use the do not call list for any purpose other than to comply with the provision of this
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chapter.
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(2) It is unlawful for any telephone soliciting business whether required to be registered
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under this chapter or exempt from registration:
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(a) to cause or permit any solicitor to violate any provision of this chapter; or
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(b) to use inmates in telephone soliciting operations where inmates have access to personal
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data about an individual sufficient to physically locate or contact that individual, such as names,
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addresses, telephone numbers, Social Security numbers, credit card information, or physical
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descriptions.
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(3) Any telephone solicitor who makes an unsolicited telephone call to a telephone number
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shall:
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(a) identify themselves;
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(b) identify the business on whose behalf the person is soliciting;
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(c) identify the purpose of the call promptly upon making contact by telephone with the
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person who is the object of the telephone solicitation;
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(d) discontinue the solicitation if the person being solicited gives a negative response at
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any time during the telephone call; and
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(e) hang up the phone, or in the case of an automated telephone dialing system operator,
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disconnect the automated telephone dialing system from the telephone line within 25 seconds of
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the termination of the call by the person being called.
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(4) A telephone solicitor may not withhold the display of the telephone solicitor's
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telephone number from a caller identification service when that number is being used for
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telemarketing purposes and when the telephone solicitor's service or equipment is capable of
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allowing the display of the number.
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(5) A person may not make or authorize a telephone solicitation in violation of Title 47
307
U.S.C. 227 or other applicable state or federal law.
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Section 7.
Section
13-26a-107
is enacted to read:
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13-26a-107. Prohibited conduct for automated telephone dialing system solicitations.
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(1) Except as provided in Subsection (2), a person may not operate or authorize the
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operation of an automated telephone dialing system to make a telephone solicitation.
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(2) A person may operate an automated telephone dialing system if a call is made:
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(a) with the prior express consent of the person who is called agreeing to receive a
314
telephone solicitation from a specific solicitor; or
315
(b) to a person with whom the solicitor has an established business relationship.
316
Section 8.
Section
13-26a-108
is enacted to read:
317
13-26a-108. Prohibited conduct for facsimile solicitations.
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(1) Except as provided in Subsection (2), a person may not operate or authorize the
319
operation of a facsimile machine to send an advertisement or otherwise solicit a sale as defined in
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this chapter.
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(2) A person may operate a facsimile machine to send an advertisement or solicitation if
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the advertisement solicitation is sent:
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(a) with the prior express consent of the person who receives the facsimile agreeing to
324
receive the facsimile from a specific solicitor; or
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(b) to a person with whom the solicitor has an established business relationship.
326
(3) A person may not send or authorize the sending of an advertisement or solicitation by
327
facsimile in violation of Title 47 U.S.C. 227 or other applicable state or federal law.
328
Section 9.
Section
13-26a-109
is enacted to read:
329
13-26a-109. Prohibited conduct for email solicitations.
330
(1) Except as provided in Subsection (2), a person may not send or authorize transmission
331
of unsolicited email to send an advertisement or otherwise solicit a sale as defined in this chapter.
332
(2) A person may send or authorize transmission of unsolicited email if the solicitation is
333
made:
334
(a) with the prior express consent of the person who receives the email agreeing to receive
335
the same from a specific solicitor; or
336
(b) to a person with whom the solicitor has an established business relationship.
337
(3) A person may not send or authorize an email in violation of Title 47 U.S.C. 227 or
338
other applicable state or federal law.
339
Section 10.
Section
13-26a-110
is enacted to read:
340
13-26a-110. Right of recission -- Cancellation.
341
(1) (a) In addition to any right to otherwise revoke an offer, a person making a purchase
342
from a telephone soliciting business, may cancel the sale at any time up to midnight of the third
343
business day after the date of the transaction or receipt of the merchandise or premium, whichever
344
is later, provided the solicitor advises the purchaser of his cancellation rights under this chapter
345
at the time any solicitation is made.
346
(b) If the solicitor fails to orally advise a purchaser of the right to cancel under this section
347
at the time of any solicitation, the purchaser's right to cancel shall be extended to 90 days.
348
(c) If the solicitor fails to orally advise a purchaser of his true name, telephone number,
349
and complete street address at the time of any solicitation, the purchaser may cancel the sale at any
350
time.
351
(2) (a) Sales shall be canceled by mailing a notice of cancellation to the telephone
352
solicitor's correct street address, postage prepaid.
353
(b) If the telephone solicitor provided no correct street address, cancellation can be
354
accomplished by sending a notice of cancellation to the division's offices, postage prepaid.
355
(3) (a) If a cancellation involves durable goods, as defined by rule by the division, the
356
purchaser shall return the durable goods to the seller.
357
(b) If a cancellation involves expendable goods, as defined by rule by the division, the
358
purchaser shall return any unused portion of those goods to the seller.
359
(c) A reasonable attempt shall be made to return goods to the solicitor's correct street
360
address within seven days of exercising the right to cancel, providing the solicitor has provided
361
the purchaser with the address. If the solicitor has failed to give a correct address, no return is
362
required to qualify for a full refund of the purchase price.
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(d) If the purchaser has used any portion of the services or goods purchased, the solicitor
364
or telephone soliciting business shall receive a reasonable allowance for value given. This
365
allowance may be deducted from any refund due the purchaser.
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(e) A solicitor shall be jointly and severally liable with the telephone soliciting business
367
for any refund amount due following the cancellation of a sale made by the solicitor.
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(4) For the purposes of this section, "business day" does not include Sunday or a federal
369
or state holiday, whether or not the soliciting business is customarily open for the transaction of
370
business on that day.
371
Section 11.
Section
13-26a-111
is enacted to read:
372
13-26a-111. Enforcement -- Penalties.
373
(1) The division shall investigate complaints and assess administrative fines for violations
374
of this chapter.
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(2) Any person who violates this chapter is subject to:
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(a) an administrative cease and desist order; and
377
(b) an administrative fine of not less than $100 or more than $2,000 for each separate
378
violation of this chapter.
379
(3) All administrative fines collected under this chapter shall be deposited in the Consumer
380
Protection Education and Training Fund created in Section
13-2-8
.
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(4) (a) Upon referral from the division, the attorney general or any district or county
382
attorney may:
383
(i) bring an action for temporary or permanent injunctive or other relief in any court of
384
competent jurisdiction for any violation of this chapter; or
385
(ii) bring an action in any court of competent jurisdiction for the collection of penalties
386
authorized under Subsection (5).
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(b) The court may, upon entry of final judgment in an action brought under Subsection
388
(4)(a), award restitution when appropriate to any person suffering loss because of a violation of
389
this part if proof of loss is submitted to the satisfaction of the court.
390
(5) Any telephone soliciting business or any person associated with a telephone soliciting
391
business, including but not limited to solicitors, salespersons, agents, representatives of a solicitor,
392
or independent contractors, who violates any provision of this chapter shall be subject to a civil
393
penalty in a court of competent jurisdiction not exceeding $2,000 for each unlawful transaction.
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(6) (a) Any telephone soliciting business or any person associated with a telephone
395
soliciting business, including but not limited to solicitors, salespersons, agents, representatives of
396
a solicitor, or independent contractor, who violates this chapter as a first offense is guilty of a class
397
B misdemeanor.
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(b) In the case of a second offense, the person is guilty of a class A misdemeanor.
399
(c) In the case of three or more offenses, the person is guilty of a third degree felony.
400
Section 12.
Section
13-26a-112
is enacted to read:
401
13-26a-112. Private right of action.
402
(1) In addition to any other remedies, a person may bring an action in any state court of
403
competent jurisdiction if that person has received a telephone solicitation, facsimile advertisement,
404
or email that violates this chapter.
405
(2) In a suit brought under Subsection (1), a person may:
406
(a) recover the greater of $500 or the amount of the pecuniary loss, if any; and
407
(b) recover court costs and reasonable attorneys' fees as determined by the court.
408
Section 13.
Section
13-26a-113
is enacted to read:
409
13-26a-113. Incorporation by reference.
410
The requirements of Title 47 U.S.C. 227 are incorporated by reference, except as the same
411
are made more restrictive herein or the context of this chapter makes the same inappropriate or
412
inapplicable.
413
Section 14.
Section
13-26a-114
is enacted to read:
414
13-26a-114. Provisions of chapter not exclusive.
415
The remedies, duties, prohibitions, and penalties of this chapter are not exclusive and are
416
in addition to all other causes of action, remedies, and penalties provided by law.
417
Section 15.
Section
54-8b-18
is amended to read:
418
54-8b-18. Definitions -- Unauthorized change of telecommunications provider --
419
Unauthorized charges -- Procedures for verification -- Penalties -- Authority of commission.
420
(1) For purposes of this section:
421
(a) "Agents" includes any person, firm, or corporation representing a telecommunications
422
corporation for purposes of requesting a change in a subscriber's telecommunications provider, but
423
does not include a local service provider when executing a request submitted by another service
424
provider or its agents.
425
(b) "Freeze" means a directive from a subscriber to retain the provider of public
426
telecommunications services selected by the subscriber until the subscriber provides authorization
427
for a change to another provider of public telecommunications services through any means by
428
which a freeze is implemented.
429
(c) "Small commercial subscriber" is a person or entity conducting a business, agriculture,
430
or other enterprise in the state having less than five telecommunications lines.
431
(d) "Subscriber" means a corporation, person, or government, or a person acting legally
432
on behalf of a corporation, person, or government who has purchased public telecommunications
433
services from a telecommunications corporation.
434
(2) No telecommunications corporation or its agents shall make any change or authorize
435
a different telecommunications corporation to make any change in the provider of any public
436
telecommunications service to a subscriber unless it complies, at a minimum, with Subsections
437
(2)(a) through (e). This Subsection (2) does not apply to a telecommunications corporation that
438
effectuates a change in service provider pursuant to a change authorization submitted or requested
439
by another telecommunications corporation.
440
(a) The telecommunications corporation or its agents shall, at a minimum, inform the
441
subscriber of the nature, extent, and rates of the service being offered and any charges associated
442
with the change.
443
(b) Notwithstanding Section [
13-26-4
] 13-26a-104, changes in provider of
444
telecommunication service accomplished through telephone solicitation shall comply with the
445
[Telephone Fraud Prevention Act, Sections
13-26-2
,
13-26-8
,
13-26-10
, and
13-26-11
]
446
requirements of Title 13, Chapter 26a, Telecommunications Solicitation Act, other than those
447
relating to registration.
448
(c) For sales of residential service or small commercial subscriber service, the
449
telecommunications corporation or its agents shall confirm that the subscriber is aware of any
450
charges that the subscriber must pay associated with the change and that the subscriber authorizes
451
the change of provider. The subscriber's authorization to change the provider shall be confirmed
452
by any one of the following methods:
453
(i) obtaining the subscriber's written authorization;
454
(ii) having the subscriber's oral authorization verified by an independent third party; or
455
(iii) any means provided by rule of the Federal Communications Commission or the
456
commission.
457
(d) If the subscriber is not an individual, an authorization shall be valid only if given by
458
an authorized representative of the subscriber.
459
(e) (i) The written authorization to change the provider shall be signed by the subscriber
460
and shall contain a clear, conspicuous, and unequivocal request by the subscriber for a change of
461
telecommunications provider.
462
(ii) A written authorization is not valid if it is presented to the subscriber for signature in
463
connection with a sweepstakes, game of chance, or any other means prohibited by commission
464
rule.
465
(iii) Nothing in this section shall be construed to prohibit any person from offering a
466
premium, incentive, or a thing of value to another as consideration for authorizing a change of
467
telecommunications service provider, provided that no element of chance or skill is associated with
468
the offer of the premium, incentive, or thing of value or its receipt.
469
(3) The confirmation by a third-party verifier shall, at a minimum:
470
(a) confirm the subscriber's identity with information unique to the customer, unless the
471
customer refuses to provide identifying information, then that fact shall be noted;
472
(b) confirm that the subscriber agrees to the requested change in telecommunications
473
service providers; and
474
(c) confirm that the subscriber has the authority to select the provider as the provider of
475
that service.
476
(4) A third-party verifier shall meet each of the following criteria:
477
(a) any criteria for third-party verifiers set by the Federal Communications Commission;
478
(b) not be directly or indirectly managed, controlled, directed, or owned wholly or in part:
479
(i) by the telecommunications corporation or its agents that seek to provide the
480
telecommunications service or by any corporation, firm, or person who directly or indirectly
481
manages, controls, directs, or owns more than 5% of the telecommunications corporation; or
482
(ii) by the marketing entity that seeks to market the telecommunications service or by any
483
corporation, firm, or person who directly or indirectly manages, controls, directs, or owns more
484
than 5% of the marketing entity;
485
(c) operate from facilities physically separated from:
486
(i) those of the telecommunications corporation or its agents that seek to provide the
487
subscriber's telecommunications service; or
488
(ii) those of the marketing entity that seeks to market a telecommunications service to the
489
subscriber; and
490
(d) not derive commissions or compensation based upon the number of change
491
authorizations verified.
492
(5) A telecommunications corporation or its agents seeking to verify the change
493
authorization shall connect the subscriber to the third-party verifier or arrange for the third-party
494
verifier to call the subscriber to verify the change authorization.
495
(6) A third-party verifier that obtains the subscriber's oral verification regarding the change
496
shall record that verification by obtaining appropriate verification data.
497
(7) (a) The record verifying a subscriber's change of provider shall be available to the
498
subscriber upon request.
499
(b) Information obtained from the subscriber through verification may not be used for any
500
other purpose.
501
(c) Any intentional unauthorized release of the information in Subsection (7)(b) is grounds
502
for penalties or other action by the commission or remedies provided by law to the aggrieved
503
subscriber against the telecommunications corporation, third-party verifier, their agents, or their
504
employees who are responsible for the violation.
505
(8) The third-party verification shall occur in the same language as that in which the
506
change was solicited.
507
(9) The verification requirements described in this section shall apply to all changes in the
508
provider of any public telecommunications service.
509
(10) The commission may promulgate rules:
510
(a) necessary to implement this section;
511
(b) consistent with any rules promulgated by the Federal Communications Commission;
512
and
513
(c) in a nondiscriminatory and competitively neutral manner.
514
(11) (a) Each subscriber may elect to require the telecommunications corporation
515
providing the subscriber's local exchange service to implement a freeze until the subscriber
516
provides authorization for a change to another provider of public telecommunications services.
517
(b) Once a subscriber has elected the freeze option under Subsection (11)(a), the
518
telecommunications corporation providing the subscriber's local exchange service may not process
519
a request to change the subscriber to another provider of telecommunications services without
520
prior authorization directly from the subscriber.
521
(12) (a) Whenever the subscriber's provider of a telecommunications service changes, the
522
new provider shall:
523
(i) retain a record of the verified change authorization consistent with requirements of the
524
Federal Communications Commission or rules issued by the commission; and
525
(ii) be responsible for providing a conspicuous notice of the change within 30 days of the
526
effective date of the change of service.
527
(b) At a minimum, the notice in Subsection (12)(a)(ii) shall identify the new provider,
528
contain a general description of the service and price, and provide information necessary for the
529
subscriber to have questions answered or to rescind the change.
530
(13) Any bill shall identify each telecommunications service provider of
531
telecommunication service for which billing is rendered.
532
(14) (a) Any person or provider of telecommunications service inadvertently or knowingly
533
designating or changing the subscriber's telecommunications service provider in violation of this
534
section shall refund to the subscriber any amounts required by the rules of the Federal
535
Communications Commission and the commission.
536
(b) The unauthorized provider in Subsection (14)(a) additionally shall:
537
(i) bear all costs of restoring the customer to the service of the subscriber's original service
538
provider; and
539
(ii) pay to any other telecommunications provider any fees set by the commission for the
540
designation or change.
541
(15) Proceedings for violations of this section may be commenced by request for agency
542
action filed with the commission by a subscriber, a telecommunications corporation, the Division
543
of Public Utilities, or by the commission on its own motion.
544
(16) Any telecommunications corporation, its agents, or a third-party verifier who violates
545
this section or rules adopted to implement this section shall be subject to the provisions of Sections
546
54-7-23
through
54-7-29
.
547
(17) The commission is granted authority to enforce provisions relating to an unauthorized
548
telecommunication service provider change in interstate and intrastate telecommunication service
549
involving telecommunications corporations operating in the state.
550
Section 16. Repealer.
551
This act repeals:
552
Section 13-25a-101, Title.
553
Section 13-25a-102, Definitions.
554
Section 13-25a-103, Prohibited conduct for telephone solicitations -- Exceptions.
555
Section 13-25a-104, Prohibited conduct for facsimiles -- Exceptions.
556
Section 13-25a-105, Penalties -- Administrative and criminal.
557
Section 13-25a-106, Enforcement.
558
Section 13-25a-107, Private action.
559
Section 13-26-1, Short title.
560
Section 13-26-2, Definitions.
561
Section 13-26-3, Registration and bond required.
562
Section 13-26-4, Exemptions from registration.
563
Section 13-26-5, Right of rescission -- Cancellation.
564
Section 13-26-8, Penalties.
565
Section 13-26-10, Provisions of chapter not exclusive.
566
Section 13-26-11, Prohibited practices.
Legislative Review Note
as of 1-7-00 2:42 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.