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  • Acts
  • 2002
  • Chapter 265 AN ACT REGULATING TELEMARKETING SOLICITATION.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:


SECTION 1. The General Laws are hereby amended by inserting after chapter 159B the following chapter:

CHAPTER 159C.

TELEMARKETING SOLICITATION.

Section 1. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

"Caller identification service or device", a telephone service or device which permits a consumer to see the telephone number of incoming calls.

"Consumer", an individual who is a resident of the commonwealth and a prospective recipient of consumer goods or services.

"Consumer goods or services", an article or service that is purchased, leased, exchanged or received primarily for personal, family or household purposes including, but not limited to, stocks, bonds, mutual funds, annuities and other financial products.

"Doing business in the commonwealth", conducting telephonic sales calls: (i) from a location in the commonwealth or (ii) from a location outside of the commonwealth to consumers in the commonwealth.

"Existing customer", a residential telephone subscriber with whom the person or entity making a telephonic sales call has maintained an account or had a business relationship within the previous 24 months.

"Marketing or sales solicitation", the initiation of a telephone call or message to encourage the purchase or rental of, or investment in, property, goods or services, that is transmitted to a consumer, but not including a telephone call or message: (i) to a consumer with that consumer's prior express written or verbal invitation or permission; (ii) by a tax-exempt nonprofit organization; (iii) by an individual or organization for a noncommercial purpose, such as a poll or survey; or (iv) to a consumer in response to a visit made by such consumer to an establishment selling, leasing or exchanging consumer goods or services at a fixed location.

"Office", the office of consumer affairs and business regulation.

"Telephonic sales call", a call made by a telephone solicitor to a consumer for the purpose of: (i) engaging in a marketing or sales solicitation; (ii) soliciting an extension of credit for consumer goods or services; or (iii) obtaining information that will or may be used for marketing or sales solicitation or exchange of or extension of credit for consumer goods or services.

"Telephone solicitor", an individual, association, corporation, partnership, limited partnership, limited liability company or other business entity, or a subsidiary or affiliate thereof, doing business in the commonwealth who makes or causes to be made a telephonic sales call.

"Unsolicited telephonic sales call", a telephonic sales call other than a call made: (i) in response to an express written or verbal request of the consumer called; (ii) primarily in connection with an existing debt or contract, payment or performance of which has not been completed at the time of the call; (iii) to an existing customer unless such customer has stated to the telephone solicitor that such customer no longer wishes to receive the telephonic sales calls of such telephone solicitor; or (iv) in which the sale of goods and services is not completed, and payment or authorization of payment is not required, until after a face-to-face sales presentation by the telephone solicitor or a meeting between the telephone solicitor and customer.

Section 2. The office shall establish and maintain a no sales solicitation calls listing of consumers who do not wish to receive unsolicited telephonic sales calls. The office may contract with a private vendor to establish and maintain such listing, provided that: (i) the private vendor has maintained national no sales solicitation calls listings for more than 2 years; and (ii) the contract requires the vendor to provide the no sales solicitation calls listing in a printed hard copy format and in any other format offered at a cost that does not exceed the production cost of the format offered. The office shall provide notice to consumers of the establishment of a no sales solicitation calls listing. A consumer who wishes to be included on the listing shall notify the office by calling toll-free number provided by the office, or in such other manner and at such times as the office may prescribe, which may include electronic notification. A consumer on such listing shall be deleted from such listing upon the consumer's written request or in such other manner and at such times as the division may prescribe, which may include electronic notification. The office shall update such listing not less than quarterly and shall make such listing available to telephone solicitors and other persons for a fee as the office shall prescribe.

Section 3. A telephone solicitor shall not make or cause to be made an unsolicited telephonic sales call to a consumer: (i) if the consumer's name and telephone number appear on the then current quarterly no sales solicitation calls listing made available by the office under section 2; (ii) to be received between the hours of 8:00 p.m. and 8:00 a.m., local time, at the consumer's location; (iii) in the form of electronically transmitted facsimiles; or (iv) by use of a recorded message device.

Section 4. No telephone solicitor shall intentionally cause to be installed or shall intentionally use a blocking device or service to circumvent a consumer's use of a call identification service or device.

Section 5. (a) A person who obtains the name, residential address or telephone number of a consumer from published telephone directories or from any other source and republishes or compiles such information, electronically or otherwise, and sells or offers to sell such publication or compilation to telephone solicitors for marketing or sales solicitation purposes shall, in accordance with this chapter, exclude from any such publication or compilation and from any database used exclusively for marketing or sales solicitation purposes, the name, address and telephone number of a consumer whose name and telephone number appears in the then current quarterly no sales solicitation calls listing made available by the office under section 2.

(b) This section shall not apply to: (i) a telephone company, subject to the authority of the department of telecommunications and energy, for the sole purpose of compiling, publishing or distributing telephone directories or causing the compilation, publication or distribution of telephone directories or providing directory assistance; and (ii) a person, for the sole purpose of compiling, publishing or distributing telephone directories for such telephone company pursuant to an agreement or other arrangement with such telephone company.

Section 5A. (a) A telephone solicitor shall disclose all of the following information within the first minute of a telephonic sales call and before requesting, accepting or arranging for payment by a consumer: (i) that the purpose of the telephone call is to make a sale or solicit funds; (ii) the correct name of the telemarketing company that employs the individual telemarketer who is making the call; (iii) the correct name of the ultimate seller whose goods or services are being offered by means of the telemarketing call; and (iv) a complete and accurate description of the goods or services being offered including, but not limited to, the retail market value of the goods or services.

(b) The telemarketer shall provide all of the following information before requesting, accepting or arranging for payment by a consumer: (i) the cost to the consumer of the goods or services that are the subject of the telemarketing sales call including, but not limited to, any applicable tax, shipping and handling fees; (ii) any restrictions, limitations or conditions attached to purchasing the goods or services; (iii) the complete terms of any applicable refund, return, cancellation, exchange or repurchase policies; (iv) any material aspect of an investment opportunity being offered including, but not limited to, the price of the land or other investment, the location of the investment and the fact that an investor may lose some or all of their original investment.

Section 6. The office shall promulgate regulations to carry out this chapter which shall: (i) require each local exchange company to inform consumers of the opportunity to provide notification to the office or its contractor that such consumer objects to receiving unsolicited telephonic sales calls; (ii) specify the methods by which each such consumer shall give notice to the office or its contractor of the consumer's objection to receiving such sales calls or revocation of such notice; provided, however, that there shall be no cost to the consumer for joining the listing; (iii) specify the length of time for which a notice of objection shall be effective and the effect of a change of telephone number on such notice; (iv) specify the methods by which such objections and revocations shall be collected and added to the no sales solicitations calls listing; (v) specify the methods by which a person or entity desiring to make telephonic sales calls may obtain access to the no sales solicitation calls listing as required to avoid calling the telephone numbers of consumer included in such listing; and (vi) specify such other matters relating to the listing that the office deems desirable.

Section 7. If the Federal Communications Commission establishes a single national database of telephone numbers of consumers who do not wish to receive unsolicited telephonic sales calls pursuant to 47 U.S.C. section 227(c)(3), the office shall include that part of such single national database that relates to the commonwealth in the listing established pursuant to this chapter.

Section 8. (a) The attorney general may initiate proceedings relating to a knowing violation or threatened knowing violation of this chapter. Such proceedings may include, without limitation, an injunction, a civil penalty of not more than $5,000 for each knowing violation, but not less than $1,500 for a knowing violation involving a consumer who is 65 years of age or older, and additional relief in a court of competent jurisdiction. The attorney general may also issue investigative demands and subpoenas, administer oaths and conduct hearings in the course of investigating a violation of this chapter.

(b) A person who has received more than 1 unsolicited telephonic sales call within a 12-month period by or on behalf of the same person or entity in violation of this chapter may: (i) bring an action to enjoin the violation; (2) bring an action to recover for actual monetary loss from such knowing violation or to receive not more than $5,000 in damages for such knowing violation, whichever is greater; or (iii) bring both such actions.

(c) In a civil proceeding resulting from a transaction involving a violation of this chapter, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall be awarded reasonable attorney's fees and costs from the nonprevailing party.

Section 9. It shall be a defense in any action or proceeding brought pursuant to this chapter that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent unsolicited telephonic sales calls in violation of this chapter.

Section 10. No action or proceeding shall be brought pursuant to this chapter: (i) more than 3 years after the person bringing the action knew or should have known of the occurrence of the alleged violation; or (ii) more than 3 years after the termination of a proceeding or action arising out of the same violation by the commonwealth, whichever is later.

Section 11. Information contained in the no sales solicitation listing established pursuant to this chapter shall be used only for the purposes of compliance with this chapter or in a proceeding or action under section 8. Such information shall not be subject to public inspection or disclosure.

Section 12. A court of the commonwealth may exercise personal jurisdiction over a nonresident or his executor or administrator as to an action or proceeding authorized by this chapter.

Section 13. The remedies, duties, prohibitions and penalties provided in this chapter shall not be exclusive and shall be in addition to all other causes of action, remedies and penalties provided by law, including any applicable remedies pursuant to chapter 93A.

Section 14. The office shall establish an advisory group comprised of government entities, local telecommunications companies, businesses, senior citizens and other community advocates to compile and promote a list of educational literature to help consumers understand their options with regard to telephonic sales calls. The office shall work with local telecommunications companies to disseminate to their residential subscribers information about the availability of and instructions on how to request educational literature from the office. The office shall include on its internet website information that informs consumers of their rights to be placed on the no sales solicitation calls listing and the various methods, including notice to the office, of placing their names on the no sales solicitation calls listing.

SECTION 2. This act shall take effect on January 1, 2003.

Approved August 10, 2002.