SENATE BILL

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SENATE BILL

  1. 1. PRIOR PRINTER'S NO. 1600 PRINTER'S NO. 2036 THE GENERAL ASSEMBLY OF PENNSYLVANIA SENATE BILL No. 1317 Session of 1995 INTRODUCED BY FISHER, BELL, ANDREZESKI, HELFRICK, JUBELIRER, STAPLETON, WENGER, BRIGHTBILL, O'PAKE, AFFLERBACH, STOUT, PORTERFIELD, TOMLINSON, LEMMOND, DELP, GERLACH, MUSTO, HART, KASUNIC AND RHOADES, NOVEMBER 21, 1995 SENATOR BELL, CONSUMER PROTECTION AND PROFESSIONAL LICENSURE, AS AMENDED, MAY 21, 1996 AN ACT 1 Providing for registration requirements for telemarketers and 2 for powers and duties of the Office of Attorney General. 3 The General Assembly of the Commonwealth of Pennsylvania 4 hereby enacts as follows: 5 Section 1. Short title. 6 This act shall be known and may be cited as the Telemarketer 7 Registration Act. 8 Section 2. Definitions. 9 The following words and phrases when used in this act shall 10 have the meanings given to them in this section unless the 11 context clearly indicates otherwise: 12 "Consumer goods and services." Real or personal property or 13 services used for personal, family or household purposes. 14 "Telemarketer." Any person who in connection with < 15 telemarketing initiates a telephone call to or receives a 16 telephone call from a consumer in connection with the purchase
  2. 2. 1 of consumer goods or services. 2 "PRIZE." ANYTHING OFFERED, OR PURPORTEDLY OFFERED, AND < 3 GIVEN, OR PURPORTEDLY GIVEN, TO A PERSON BY CHANCE. FOR PURPOSES 4 OF THIS DEFINITION, CHANCE EXISTS IF A PERSON IS GUARANTEED TO 5 RECEIVE AN ITEM AND, AT THE TIME OF THE OFFER OR PURPORTED 6 OFFER, THE TELEMARKETER DOES NOT IDENTIFY THE SPECIFIC ITEM THAT 7 THE PERSON WILL RECEIVE. 8 "PRIZE PROMOTION." 9 (1) A SWEEPSTAKES OR OTHER GAME OF CHANCE; OR 10 (2) AN ORAL OR WRITTEN EXPRESS OR IMPLIED REPRESENTATION 11 THAT A PERSON HAS WON, HAS BEEN SELECTED TO RECEIVE, OR MAY 12 BE ELIGIBLE TO RECEIVE A PRIZE OR PURPORTED PRIZE. 13 "TELEMARKETER." ANY PERSON WHO, IN CONNECTION WITH 14 TELEMARKETING, INITIATES OR RECEIVES TELEPHONE CALLS TO OR FROM 15 A CONSUMER IN THIS COMMONWEALTH, OR WHEN THE PERSON ACTING IN 16 CONNECTION WITH TELEMARKETING IS LOCATED WITHIN THIS 17 COMMONWEALTH WHEN SUCH CALLS ARE INITIATED OR RECEIVED. FOR 18 PURPOSES OF REGISTRATION UNDER SECTION 3(A) OF THIS ACT, 19 "TELEMARKETER" DOES NOT INCLUDE ANY OF THE FOLLOWING: 20 (1) A PERSON SOLICITING SALES THROUGH A CATALOG WHICH: 21 (I) CONTAINS A WRITTEN DESCRIPTION OR ILLUSTRATION 22 AND PRICE OF EACH OF THE GOODS OR SERVICES OFFERED FOR 23 SALE. 24 (II) INCLUDES THE BUSINESS ADDRESS OF THE SELLER. 25 (III) INCLUDES AT LEAST 24 PAGES OF WRITTEN MATERIAL 26 OR ILLUSTRATION. 27 (IV) IS DISTRIBUTED IN MORE THAN ONE STATE. 28 (V) HAS BEEN ISSUED NOT LESS FREQUENTLY THAN ONCE A 29 YEAR. 30 (VI) HAS AN ANNUAL CIRCULATION OF NOT LESS THAN 19950S1317B2036 - 2 -
  3. 3. 1 250,000 CONSUMERS. 2 (2) A PERSON SOLICITING WITHOUT THE INTENT TO COMPLETE 3 AND WHO DOES NOT COMPLETE THE SALES PRESENTATION DURING THE 4 TELEPHONE SOLICITATION, BUT COMPLETES THE SALES PRESENTATION 5 AT A LATER FACE-TO-FACE MEETING BETWEEN THE SOLICITOR AND THE 6 PROSPECTIVE PURCHASER, OR WHO OFFERS TO SEND THE PURCHASER 7 DESCRIPTIVE LITERATURE AND DOES NOT REQUIRE PAYMENT PRIOR TO 8 THE PURCHASER'S REVIEW OF THE DESCRIPTIVE LITERATURE. 9 HOWEVER, IF A SELLER, DIRECTLY FOLLOWING A TELEPHONE 10 SOLICITATION, CAUSES AN INDIVIDUAL WHOSE PRIMARY PURPOSE IT 11 IS TO GO TO THE PROSPECTIVE PURCHASER TO COLLECT THE PAYMENT, 12 THIS EXEMPTION DOES NOT APPLY. 13 (3) A BOOK, VIDEO OR RECORD CLUB OR CONTRACTUAL PLAN OR 14 AGREEMENT: 15 (I) UNDER WHICH THE SELLER PROVIDES THE CONSUMER 16 WITH A FORM WHICH THE CONSUMER MAY USE TO INSTRUCT THE 17 SELLER NOT TO SHIP THE OFFERED MERCHANDISE; 18 (II) WHICH IS REGULATED BY THE FEDERAL TRADE 19 COMMISSION TRADE REGULATION CONCERNING "USE OF NEGATIVE 20 OPTION PLANS BY SELLERS IN COMMERCE"; OR 21 (III) WHICH PROVIDES FOR THE SALE OF BOOKS, RECORDS, 22 OR VIDEOS WHICH ARE NOT COVERED UNDER SUBPARAGRAPH (I) OR 23 (II), INCLUDING CONTINUITY PLANS, SUBSCRIPTION 24 ARRANGEMENTS, STANDING ORDER ARRANGEMENTS, SUPPLEMENTS 25 AND SERIES ARRANGEMENTS UNDER WHICH THE SELLER 26 PERIODICALLY SHIPS MERCHANDISE TO A CONSUMER WHO HAS 27 CONSENTED IN ADVANCE TO RECEIVE SUCH MERCHANDISE ON A 28 PERIODIC BASIS. 29 (4) A PERSON CONDUCTING A BUSINESS-TO-BUSINESS SALE 30 WHERE: THE COMMERCIAL TELEPHONE SELLER HAS BEEN OPERATING 19950S1317B2036 - 3 -
  4. 4. 1 CONTINUOUSLY FOR AT LEAST 3 YEARS UNDER THE SAME BUSINESS 2 NAME AND HAS AT LEAST 50 PERCENT OF ITS DOLLAR VOLUME 3 CONSISTING OF A REPEAT SALES TO EXISTING BUSINESSES. 4 (5) A PERSON ENGAGED IN A BUSINESS OR OCCUPATION WHICH 5 IS LICENSED BY OR REGISTERED WITH A FEDERAL OR COMMONWEALTH 6 AGENCY WHILE ACTING WITHIN THE SCOPE OF THE BUSINESS FOR 7 WHICH LICENSURE OR REGISTRATION IS REQUIRED. 8 (6) ANY OF THE FOLLOWING ORGANIZATIONS UNLESS A 9 PROFESSIONAL FUNDRAISING COUNSEL OR A PROFESSIONAL SOLICITOR 10 IS UTILIZED: 11 (I) EDUCATIONAL INSTITUTIONS, THE CURRICULA OF WHICH 12 IN WHOLE OR IN PART ARE REGISTERED WITH OR APPROVED BY 13 THE DEPARTMENT OF EDUCATION, EITHER DIRECTLY OR BY 14 ACCEPTANCE OF ACCREDITATION BY AN ACCREDITING BODY 15 RECOGNIZED BY THE DEPARTMENT OF EDUCATION, AND ANY 16 AUXILIARY ASSOCIATIONS, FOUNDATIONS AND SUPPORT GROUPS 17 WHICH ARE DIRECTLY RESPONSIBLE TO EDUCATIONAL 18 INSTITUTIONS. 19 (II) HOSPITALS WHICH ARE SUBJECT TO REGULATION BY 20 THE DEPARTMENT OF HEALTH OR THE DEPARTMENT OF PUBLIC 21 WELFARE AND THE HOSPITAL FOUNDATION, IF ANY, WHICH IS AN 22 INTEGRAL PART THEREOF. 23 (III) PUBLIC NONPROFIT LIBRARY ORGANIZATIONS WHICH 24 RECEIVE FINANCIAL AID FROM STATE AND MUNICIPAL 25 GOVERNMENTS AND FILE AN ANNUAL FISCAL REPORT WITH THE 26 STATE LIBRARY SYSTEM. 27 (IV) SENIOR CITIZEN CENTERS AND NURSING HOMES WHICH 28 ARE NONPROFIT AND CHARITABLE AND WHICH HAVE BEEN GRANTED 29 TAX-EXEMPT STATUS UNDER THE INTERNAL REVENUE CODE OF 1986 30 (PUBLIC LAW 99-514, 26 U.S.C. § 1 ET SEQ.). 19950S1317B2036 - 4 -
  5. 5. 1 (V) BONA FIDE PARENT/TEACHER ASSOCIATIONS OR 2 PARENT/TEACHER ORGANIZATIONS AS RECOGNIZED IN A NOTARIZED 3 LETTER FROM THE SCHOOL DISTRICT IN WHICH THEY ARE 4 LOCATED. 5 (VI) ANY CORPORATION ESTABLISHED BY AN ACT OF 6 CONGRESS OF THE UNITED STATES THAT IS REQUIRED BY FEDERAL 7 LAW TO SUBMIT ANNUAL REPORTS OF ITS ACTIVITIES TO 8 CONGRESS CONTAINING ITEMIZED ACCOUNTS OF ALL RECEIPTS AND 9 EXPENDITURES AFTER BEING FULLY AUDITED BY THE DEPARTMENT 10 OF DEFENSE. 11 (VII) ANY CHARITABLE ORGANIZATION WHICH RECEIVES 12 CONTRIBUTIONS OF $25,000 OR LESS ANNUALLY. 13 (7) A PERSON SOLICITING BUSINESS FROM PROSPECTIVE 14 PURCHASERS WHO HAVE PREVIOUSLY PURCHASED FROM THE BUSINESS 15 ENTERPRISE FOR WHICH THE PERSON IS CALLING WHERE THE 16 COMMERCIAL TELEPHONE SELLER HAS BEEN OPERATING CONTINUOUSLY 17 FOR AT LEAST THREE YEARS UNDER THE SAME BUSINESS NAME. 18 (8) A PERSON PRIMARILY SOLICITING THE SALE OF A 19 NEWSPAPER, MAGAZINE OR OTHER PERIODICAL OF GENERAL 20 CIRCULATION. 21 (9) A PERSON, OR AN AGENT OR CONTRACTOR OF SUCH PERSON, 22 WHO HAS BEEN OPERATING FOR AT LEAST TWO YEARS A RETAIL 23 BUSINESS ESTABLISHMENT IN THIS COMMONWEALTH UNDER THE SAME 24 NAME AS THAT USED IN CONNECTION WITH TELEMARKETING, AND BOTH 25 OF THE FOLLOWING OCCUR ON A CONTINUING BASIS: 26 (I) EITHER PRODUCTS ARE DISPLAYED AND OFFERED FOR 27 SALE OR SERVICES ARE OFFERED FOR SALE AND PROVIDED AT THE 28 BUSINESS ESTABLISHMENT. 29 (II) A MAJORITY OF THE SELLER'S BUSINESS INVOLVES 30 BUYERS' OBTAINING SUCH PRODUCTS OR SERVICES AT THE 19950S1317B2036 - 5 -
  6. 6. 1 SELLER'S LOCATION. 2 (10) ANY PERSON WHO HAS BEEN PROVIDING TELEMARKETING 3 SALES SERVICES CONTINUOUSLY FOR AT LEAST FIVE YEARS UNDER THE 4 SAME OWNERSHIP AND CONTROL AND WHO DERIVES 75% OF ITS GROSS 5 TELEMARKETING SALES REVENUES FROM CONTRACTS WITH PERSONS 6 EXEMPTED IN THIS SECTION. 7 (11) A PERSON SOLICITING THE SALE OF FOOD OR PRODUCE IF 8 THE SOLICITATION IS NOT INTENDED TO RESULT IN A SALE WHICH 9 COSTS THE PURCHASER IN EXCESS OF $500. 10 (12) A PERSON WHO SOLICITS CONTRACTS FOR THE MAINTENANCE 11 OR REPAIR OF GOODS PREVIOUSLY PURCHASED FROM THE PERSON 12 MAKING THE SOLICITATION OR ON WHOSE BEHALF THE SOLICITATION 13 IS MADE. 14 (13) AN ISSUER OR SUBSIDIARY OF AN ISSUER THAT HAS A 15 CLASS OF SECURITIES WHICH IS SUBJECT TO SECTION 12 OF THE 16 SECURITIES EXCHANGE ACT OF 1934 (48 STAT. 881, 15 U.S.C. § 17 78L) AND WHICH IS EITHER REGISTERED OR EXEMPT FROM 18 REGISTRATION UNDER PARAGRAPH A, B, C, E, F, G OR H OF 19 SUBSECTION (G)(2) OF THAT SECTION. 20 "TELEMARKETING." A PLAN, PROGRAM OR CAMPAIGN WHICH IS 21 CONDUCTED TO INDUCE THE PURCHASE OF GOODS OR SERVICES OR TO 22 SOLICIT CONTRIBUTIONS FOR ANY CHARITABLE PURPOSE, CHARITABLE 23 PROMOTION OR FOR OR ON BEHALF OF ANY CHARITABLE ORGANIZATION, BY 24 USE OF ONE OR MORE TELEPHONES AND WHICH INVOLVES MORE THAN ONE 25 TELEPHONE CALL. FOR PURPOSES OF THIS ACT, THE TERMS "CHARITABLE 26 PURPOSE," "CHARITABLE PROMOTION," "CHARITABLE ORGANIZATION," 27 "PROFESSIONAL FUNDRAISING COUNSEL," "PROFESSIONAL SOLICITOR" AND 28 "SOLICITATION" HAVE THE MEANINGS AS DEFINED IN THE ACT OF 29 DECEMBER 19, 1990 (P.L.1200, NO.202), KNOWN AS THE SOLICITATION 30 OF FUNDS FOR CHARITABLE PURPOSES ACT. 19950S1317B2036 - 6 -
  7. 7. 1 "Telemarketing business." A business entity that is or has 2 engaged in the business of telephone solicitations and employs 3 at least one telemarketer. 4 Section 3. Registration requirement. 5 (a) General rule.--In addition to any other requirements 6 imposed by law, a telemarketer or the telemarketing business 7 which employs the telemarketer is required to register with the 8 Office of Attorney General at least 60 days prior to offering 9 for sale consumer goods or services through any medium. THIS < 10 SECTION WILL NOT APPLY, HOWEVER, TO BUSINESSES LICENSED BY OR 11 REGISTERED WITH A FEDERAL OR COMMONWEALTH AGENCY. 12 (b) Unlawful conduct.--It shall be unlawful for any 13 telemarketer to initiate a telephone call to or receive a 14 telephone call from a consumer in connection with the purchase 15 of consumer goods or services, unless the telemarketer or the 16 telemarketing business which employs the telemarketer is 17 registered with, and has a certificate of registration from, the < 18 Office of Attorney General. 19 (c) Penalty.--Failure to register as required by this act 20 constitutes a misdemeanor of the second degree. 21 Section 4. Registration and application process. 22 (a) Application form.--The Office of Attorney General shall 23 provide an application form for BIANNUAL registration EXCEPT FOR < 24 THOSE BUSINESSES COVERED BY SUBSECTION (C). The form shall 25 include, but not be limited to, the following information: 26 (1) Name and current address, telephone number and 27 location of the telemarketer or telemarketing business. 28 (2) Name and current address and telephone number of 29 each principal owner of the telemarketing business. 30 (3) A list of telemarketers currently employed by the 19950S1317B2036 - 7 -
  8. 8. 1 telemarketing business. 2 (B) SECURITY.--THE APPLICATION FOR REGISTRATION COMPLETED BY < 3 BUSINESSES PURSUANT TO SUBSECTION (A) SHALL BE ACCOMPANIED BY A 4 SURETY BOND IN THE SUM OF $50,000 WITH CONDITIONS AND IN A FORM 5 PRESCRIBED BY THE OFFICE OF ATTORNEY GENERAL. THE BOND SHALL 6 PROVIDE FOR THE INDEMNIFICATION OF ANY PERSON SUFFERING A LOSS 7 AS THE RESULT OF ANY FRAUD, MISREPRESENTATION, VIOLATION OF 8 SECTION 5 OR VIOLATION OF THE ACT OF DECEMBER 17, 1968 9 (P.L.1224, NO.387), KNOWN AS THE UNFAIR TRADE PRACTICES AND 10 CONSUMER PROTECTION LAW, BY THE PRINCIPAL. THE TERM OF THE BOND 11 SHALL BE CONTINUOUS, BUT, IT SHALL BE SUBJECT TO CANCELLATION BY 12 THE SURETY IN THE MANNER DESCRIBED IN THIS SECTION. THE SURETY 13 MAY TERMINATE THE BOND UPON GIVING A 60-DAY WRITTEN NOTICE TO 14 THE PRINCIPAL AND TO THE OFFICE OF ATTORNEY GENERAL, BUT THE 15 LIABILITY OF THE SURETY FOR ACTS OF THE PRINCIPAL AND ITS AGENTS 16 SHALL CONTINUE DURING THE 60 DAYS' NOTICE OF CANCELLATION. THE 17 NOTICE DOES NOT ABSOLVE THE SURETY FROM LIABILITY WHICH ACCRUES 18 BEFORE THE CANCELLATION BECOMES FINAL BUT WHICH IS DISCOVERED 19 AFTER THAT DATE AND WHICH MAY HAVE ARISEN AT ANY TIME DURING THE 20 TERM OF THE BOND. UNLESS THE BOND IS REPLACED BY THAT OF ANOTHER 21 SURETY BEFORE THE EXPIRATION OF THE 60 DAYS' NOTICE OF 22 CANCELLATION, THE REGISTRATION OF THE PRINCIPAL UNDER THIS ACT 23 WILL BE TREATED AS LAPSED. ANY BUSINESS REQUIRED UNDER THIS 24 SECTION TO FILE A BOND WITH A REGISTRATION APPLICATION MAY FILE, 25 IN LIEU THEREOF, CASH, A CERTIFICATE OF DEPOSIT OR GOVERNMENT 26 BONDS IN THE AMOUNT OF $50,000. SUCH DEPOSIT IS SUBJECT TO THE 27 SAME TERMS AND CONDITIONS AS ARE PROVIDED FOR IN THE SURETY BOND 28 REQUIRED IN THIS SUBSECTION. THE OFFICE OF ATTORNEY GENERAL 29 SHALL HOLD SUCH CASH, CERTIFICATE OF DEPOSIT OR GOVERNMENT BONDS 30 FOR A REASONABLE PERIOD FROM THE DATE THE TELEMARKETING BUSINESS 19950S1317B2036 - 8 -
  9. 9. 1 CEASES TO OPERATE OR REGISTRATION LAPSES IN ORDER TO PAY CLAIMS 2 MADE AGAINST THE TELEMARKETING BUSINESS DURING ITS OPERATION. 3 ANY INTEREST OR EARNINGS ON SUCH DEPOSITS ARE PAYABLE TO THE 4 DEPOSITOR. IF, AFTER REGISTERED, THE AMOUNT OF BOND, CASH, 5 CERTIFICATE OF DEPOSIT OR GOVERNMENT BONDS FALL BELOW THE AMOUNT 6 REQUIRED BY THIS SUBSECTION, THE REGISTRATION OF THE 7 TELEMARKETING BUSINESS WILL BE TREATED AS LAPSED. THE OFFICE OF 8 ATTORNEY GENERAL SHALL PRESCRIBE THE METHODS AND PROCEDURES FOR 9 HANDLING CLAIMS UNDER THIS SUBSECTION. 10 (C) REGISTRATION PROCEDURE FOR OTHER BUSINESSES.-- 11 REGISTRATION PROCEDURES FOR BUSINESSES LICENSED BY OR REGISTERED 12 WITH A FEDERAL OR COMMONWEALTH AGENCY, TO THE EXTENT THE 13 TELEMARKETING ACTIVITIES OF THOSE BUSINESSES GO BEYOND THE 14 ACTIVITIES FOR WHICH THE BUSINESS IS LICENSED OR REGISTERED, 15 SHALL BE PROMULGATED BY THE OFFICE OF ATTORNEY GENERAL. THE 16 INFORMATION TO BE OBTAINED BY THE OFFICE OF ATTORNEY GENERAL IN 17 SUCH CASES SHALL INCLUDE THE INFORMATION OUTLINED IN SUBSECTION 18 (A) OF THIS SECTION. 19 (b) (D) Application fee.--The fee for applying for < 20 registration is BIANNUAL FEE FOR THOSE BUSINESSES REGISTERING < 21 UNDER SUBSECTION (A) SHALL BE $500. The fee must be submitted 22 with the application. Application fees shall be deposited in a 23 separate restricted account in the State Treasury. All moneys in 24 this account are hereby appropriated to the Office of Attorney 25 General on a continuing basis to administer and enforce the 26 provisions of this act. 27 (c) Determination by Office of Attorney General.--Within 60 < 28 days of receipt by the Office of Attorney General of the 29 application for registration, the Office of Attorney General 30 shall make a determination as to whether the applicant has 19950S1317B2036 - 9 -
  10. 10. 1 complied with the requirements for certification listed in 2 subsection (d). 3 (d) Requirements for certification.--The following shall 4 apply: 5 (1) No owner of the applicant telemarketing business or 6 telemarketer who has been convicted of a violation of any law 7 of this Commonwealth or any other jurisdiction involving 8 fraud, forgery or theft is eligible for certification. 9 (2) Certification shall be granted subject to the 10 applicant agreeing to the following: 11 (i) That the applicant shall be accountable for the 12 substance of each sales presentation and for each request 13 for charitable contribution made by an agent or 14 representative. 15 (ii) The applicant is personally liable for any 16 violations of this act. 17 Section 5. Revocation of certificate of registration. 18 (a) General rule.--The Office of Attorney General may revoke 19 the certificate of registration for, and subject to a civil fine 20 of up to $500 per violation, any telemarketing business or 21 telemarketer for any of the following: 22 (E) RULES AND REGULATIONS.--THE OFFICE OF ATTORNEY GENERAL < 23 MAY ADOPT RULES AND REGULATIONS NECESSARY TO ENFORCE AND 24 ADMINISTER THIS ACT. 25 SECTION 5. UNLAWFUL ACTS AND PENALTIES. 26 THE FOLLOWING ACTS ARE PROHIBITED: 27 (1) Conducting telemarketing after 9 p.m. or before 8 28 a.m. 29 (2) Conveying information relating to the provisions or 30 availability of consumer goods or services to a consumer 19950S1317B2036 - 10 -
  11. 11. 1 through any medium where the consumer indicates that he is 2 not interested in receiving the information. 3 (3) Debiting any consumer's checking, savings or credit < 4 account unless clear approval is obtained in a taped 5 telephone call or by the consumer's written permission. 6 (3) OBTAINING OR SUBMITTING FOR PAYMENT A CHECK, DRAFT < 7 OR OTHER FORM OF NEGOTIABLE PAPER DRAWN ON A PERSON'S 8 CHECKING, SAVINGS, SHARE OR SIMILAR ACCOUNT, WITHOUT THE 9 PERSON'S EXPRESS VERIFIABLE AUTHORIZATION. SUCH AUTHORIZATION 10 SHALL BE DEEMED VERIFIABLE ONLY WHEN THE EXPRESS 11 AUTHORIZATION IS WRITTEN AND INCLUDES THE CUSTOMER'S 12 SIGNATURE. FOR THE PURPOSES OF THIS PARAGRAPH, A CUSTOMER MAY 13 AUTHORIZE FUTURE WITHDRAWALS OF THE SAME AMOUNT IF THE 14 INSTRUMENT CLEARLY AND CONSPICUOUSLY INDICATES THIS 15 INFORMATION. 16 (4) Promising for a fee to recover money any consumer 17 has lost to fraudulent telemarketers. 18 (5) Failing to disclose PROMPTLY to any consumer during < 19 the initial telephone contact the purpose of the call, the 20 name of the telemarketer or telemarketing business and what 21 the telemarketer or telemarketing business is selling. 22 (6) In the case of prize promotions, failing to provide 23 the odds of winning, advising that no purchase or payment is 24 necessary to win and identifying restrictions or conditions 25 on obtaining a prize. IN ANY PRIZE PROMOTION, IF THE ODDS ARE < 26 NOT CALCULABLE IN ADVANCE, THE FACTORS USED IN CALCULATING 27 THE ODDS MUST BE DISCLOSED. THE NO PURCHASE/NO PAYMENT METHOD 28 OF PARTICIPATING IN THE PRIZE PROMOTION WITH EITHER 29 INSTRUCTIONS ON HOW TO PARTICIPATE OR AN ADDRESS OR LOCAL OR 30 TOLL-FREE TELEPHONE NUMBER TO WHICH CUSTOMERS MAY WRITE OR 19950S1317B2036 - 11 -
  12. 12. 1 CALL FOR INFORMATION ON HOW TO PARTICIPATE SHALL BE PROVIDED. 2 ALL MATERIAL COSTS OR CONDITIONS TO RECEIVE OR REDEEM A PRIZE 3 THAT IS THE SUBJECT OF THE PRIZE PROMOTION MUST ALSO BE 4 PROVIDED. 5 (7) Failing to reduce any sale of goods or services made 6 during a telemarketing call to a written contract and 7 obtaining the consumer's signature on the written contract. 8 (8) Failing to end a telemarketing solicitation call 9 when the consumer indicates he wants to end the call. 10 (b) Contract provisions.--A contract under subsection (a)(7) 11 shall contain the following information: 12 (1) The name, address and telephone number of the 13 telemarketer or telemarketing business. 14 (2) The total price of the consumer goods or services 15 purchased. 16 (3) A detailed description of the consumer goods and 17 services purchased, which shall match the oral description 18 given in the telemarketing solicitation. 19 (4) Any oral or written representations made during the 20 telemarketing solicitation. 21 (5) A statement that reads "You are not obligated to pay 22 any money unless you sign this contract and return it to the 23 seller." 24 (c) Exception.--A signed, written contract is not needed if: 25 (1) The contractual sale is regulated under other laws 26 of this Commonwealth. 27 (2) The transaction was made as a result of prior 28 negotiations by the consumer and telemarketer or 29 telemarketing business, where the consumer visited a merchant 30 operating a retail business establishment in a permanent 19950S1317B2036 - 12 -
  13. 13. 1 location where consumer goods are displayed or offered for 2 sale on a continuing basis. 3 (3) The transaction is one for which the consumer may 4 receive a full refund upon the return of undamaged and unused 5 consumer goods within ten days of receipt of the consumer 6 goods or upon sending a cancellation of consumer service 7 notice to the telemarketer or telemarketing business before < 8 the service is started WITHIN FIVE DAYS OF THE TRANSACTION, < 9 if the refund is processed within 30 days of receipt of the 10 returned consumer goods or upon receipt of the cancellation 11 of the consumer. 12 (4) The transaction is a result of the consumer 13 examining an advertisement, sample, brochure or catalog of 14 the telemarketer or telemarketing business which contains the 15 name, address and telephone number of the telemarketer or 16 telemarketing business, a description of the goods or 17 services and any limitations or restrictions that apply to 18 the offer. 19 (5) The transaction is a sale or solicitation made by or 20 on behalf of a bona fide charitable organization which is tax 21 exempt under section 501(c)(3) of the Internal Revenue Code 22 of 1986 (Public Law 99-514, 26 U.S.C. § 1 et seq.). 23 Section 6. Revocation of certificate of registration by Office < 24 of Attorney General. 25 All actions of the Office of Attorney General under this act 26 shall be taken subject to the right of notice, hearing and 27 adjudication and the right of appeal therefrom in accordance 28 with 2 Pa.C.S. (relating to administrative law and procedure). 29 SECTION 6. VIOLATIONS. < 30 (A) OTHER LAW.--A VIOLATION OF THIS ACT IS ALSO A VIOLATION 19950S1317B2036 - 13 -
  14. 14. 1 OF THE ACT OF DECEMBER 17, 1968 (P.L.1224, NO.387), KNOWN AS THE 2 UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW. 3 (B) SECOND OR SUBSEQUENT OFFENSE.--UPON A SECOND OR 4 SUBSEQUENT VIOLATION OF THIS ACT, THE OFFICE OF ATTORNEY GENERAL 5 MAY SEEK REVOCATION OF REGISTRATION OR THE RIGHT TO CONDUCT 6 TELEMARKETING IN THIS COMMONWEALTH. 7 (C) PROCEDURE.--ALL ACTIONS OF THE OFFICE OF ATTORNEY 8 GENERAL UNDER THIS ACT SHALL BE TAKEN SUBJECT TO THE RIGHT OF 9 NOTICE, HEARING AND ADJUDICATION AND THE RIGHT OF APPEAL 10 THEREFROM IN ACCORDANCE WITH 2 PA.C.S. (RELATING TO 11 ADMINISTRATIVE LAW AND PROCEDURE). 12 Section 7. Remedies available to consumers. 13 Nothing in this act shall be construed to limit the remedies 14 available to consumers, THE ATTORNEY GENERAL OR ANY DISTRICT < 15 ATTORNEY under the act of December 17, 1968 (P.L.1224, No.387), 16 known as the Unfair Trade Practices and Consumer Protection Law, 17 or any other State or Federal law. 18 SECTION 8. BURDEN OF PROOF. < 19 (A) PROCEEDING UNDER THIS ACT.--IN ANY CIVIL PROCEEDING 20 ALLEGING A VIOLATION OF THIS ACT, THE BURDEN OF PROVING AN 21 EXEMPTION OR AN EXCEPTION FROM A DEFINITION IS UPON THE PERSON 22 CLAIMING IT; AND IN ANY CRIMINAL PROCEEDING ALLEGING A VIOLATION 23 OF THIS ACT, THE BURDEN OF PRODUCING EVIDENCE TO SUPPORT A 24 DEFENSE BASED UPON AN EXEMPTION OR AN EXCEPTION FROM A 25 DEFINITION IS UPON THE PERSON CLAIMING IT. 26 (B) OTHER PROCEEDINGS.--COMPLIANCE WITH THIS ACT DOES NOT 27 SATISFY NOR SUBSTITUTE FOR ANY REQUIREMENTS FOR LICENSE, 28 REGISTRATION OR REGULATION MANDATED BY OTHER LAWS. 29 Section 8 9. Effective date. < 30 This act shall take effect in 60 90 days. < K8L12WMB/19950S1317B2036 - 14 -

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