CSHB 15(FIN): "An Act relating to fair trade practices and consumer protection, to telephone solicitations, to charitable solicitations; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 15(FIN) 01 "An Act relating to fair trade practices and consumer protection, to telephone 02 solicitations, to charitable solicitations; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 45.50.471(b)(35) is amended to read: 05 (35) violating AS 45.63 ([TELEPHONIC] solicitations by telephonic 06 means); 07 * Sec. 2. AS 45.50.475(a) is amended to read: 08 (a) A person is in violation of AS 45.50.471(b)(41) if the person 09 (1) engages in the telephone solicitation of a residential telephone 10 customer of a telecommunications company and the customer is identified in the 11 telephone directory as not wishing to receive telephone solicitations; [OR] 12 (2) engages in the telephone solicitation of a customer whose 13 telephone number has been registered with the national do not call registry for 14 the minimum amount of time required by the national do not call registry before
01 the date the call is made; 02 (3) engages in telephone solicitation of a customer who has 03 previously communicated to the telephone solicitor, or to the business enterprise 04 or charitable organization for which the person is calling, the customer's desire 05 not to receive telephone solicitations to that number; or 06 (4) originates a telephone call using an automated or recorded message 07 as a telephonic advertisement or a telephone solicitation. 08 * Sec. 3. AS 45.50.475(d) is amended to read: 09 (d) A person who employs individuals to engage in telephone solicitations is 10 not liable for a [THE] violation of (a)(1) - (3) of this section [IF AN EMPLOYEE 11 SOLICITS A RESIDENTIAL TELEPHONE CUSTOMER WHO IS IDENTIFIED IN 12 THE TELEPHONE DIRECTORY AS NOT WISHING TO RECEIVE TELEPHONE 13 SOLICITATIONS] if the person establishes [ESTABLISHED] that 14 (1) the person has adopted and implemented written procedures and 15 policies to comply with (a)(1) - (3) [(a)] of this section, including corrective actions if 16 [WHERE] appropriate; 17 (2) the person has trained its personnel in the procedures and policies 18 established under (1) of this subsection; 19 (3) the call that violated (a)(1) - (3) of this section was made contrary 20 to the procedures and policies established by the person; and 21 (4) the call that violated (a)(1) - (3) of this section was made as a 22 result of a good faith error [CALLS ON BEHALF OF THE PERSON THAT 23 RESULT IN VIOLATIONS OF THIS SECTION ARE INFREQUENT]. 24 * Sec. 4. AS 45.50.475(e) is amended to read: 25 (e) An individual who solicits a [RESIDENTIAL] telephone customer in 26 violation of (a)(1) - (3) of this section [WHO IS IDENTIFIED IN THE 27 TELEPHONE DIRECTORY AS NOT WISHING TO RECEIVE TELEPHONE 28 SOLICITATIONS] is not liable for the violation [OF THIS SECTION] if the 29 individual establishes that the individual did not intend to make a call in violation of 30 this section and did not recklessly disregard information or policies and procedures 31 that would have avoided the improper call.
01 * Sec. 5. AS 45.50.475(f) is amended to read: 02 (f) Local exchange telecommunications companies shall inform 03 [RESIDENTIAL] customers of the provisions of this section. Notification shall 04 [MAY] be made by 05 (1) quarterly [ANNUAL] inserts in the billing statements mailed to 06 [RESIDENTIAL] customers; and [OR] 07 (2) clear and conspicuous publication of the notice in the consumer 08 information pages of local telephone directories. 09 * Sec. 6. AS 45.50.475(g)(2) is amended to read: 10 (2) "customer" means a [RESIDENTIAL] telephone customer of a 11 telecommunications company; 12 * Sec. 7. AS 45.50.475(g)(3) is amended to read: 13 (3) "telephone solicitation" 14 (A) means the solicitation by a person by telephone of a 15 customer at the residence of the customer for the purpose of encouraging the 16 customer to purchase property, goods, or services, or make a donation; 17 (B) does not include 18 (i) calls made in response to a request or inquiry by the 19 called customer or communication made during a call made by the 20 customer; 21 (ii) calls made by a charitable organization [, A 22 PUBLIC AGENCY,] or volunteers on behalf of the charitable 23 organization [OR PUBLIC AGENCY] to a member [MEMBERS] of 24 the organization [OR AGENCY] or to a person [PERSONS] who, 25 within the last 18  months, has [HAVE] made a donation to the 26 organization [OR AGENCY] or expressed an interest in making a 27 donation, but only if the charitable organization has not received a 28 request from the member or person asking that the telephone 29 solicitations cease; 30 (iii) calls limited to soliciting the expression of ideas, 31 opinions, or votes;
01 (iv) business-to-business calls; or 02 (v) a person soliciting business from prospective 03 purchasers who have, within the last 18  months, purchased from 04 the person making the solicitation or from the business enterprise for 05 which the person is calling but only if the person or business enterprise 06 has not received a [WRITTEN] request from the prospective purchaser 07 asking that telephone solicitations cease; the person or business 08 enterprise is presumed to have received a written request no later than 09 10 days after the prospective purchaser mailed it, properly addressed 10 and with the appropriate postage. 11 * Sec. 8. AS 45.50.475(g) is amended by adding a new paragraph to read: 12 (4) "national do not call registry" means the data base of telephone 13 numbers of customers who do not wish to receive telephone solicitations established 14 and maintained by the Federal Trade Commission and Federal Communications 15 Commission. 16 * Sec. 9. AS 45.50.561(a) is amended by adding a new paragraph to read: 17 (12) "goods or services" includes goods or services provided in 18 connection with a consumer credit transaction or with a transaction involving an 19 indebtedness secured by the borrower's residence. 20 * Sec. 10. AS 45.63.010(a) is amended to read: 21 (a) A person may not sell or attempt to sell property or services by telephonic 22 means if the person makes substantially the same offer on substantially the same terms 23 to two or more persons, unless the telephone [TELEPHONIC] seller is registered with 24 the Department of Law at least 30 days before the solicitation campaign. 25 * Sec. 11. AS 45.63.010(c) is amended to read: 26 (c) Registration under (b) of this section is not complete until the telephone 27 [TELEPHONIC] seller receives an acknowledgement from the department that the 28 seller has complied with (b) of this section. 29 * Sec. 12. AS 45.63.010(d) is amended to read: 30 (d) The notice of intent must be on a form or in a format provided and 31 established by the department by regulation. The department may require the
01 notice of intent to be submitted under oath or affirmation or with notice that 02 false statements made are punishable as unsworn falsification under 03 AS 11.56.210. The notice of intent must include detailed information about the nature 04 of the solicitation campaign and the identity and business practices of the telephone 05 [TELEPHONIC] seller, including information on the employees, agents, and officers 06 affiliated with the telephone [TELEPHONIC] seller. The notice of intent must 07 disclose criminal convictions, civil judgments, orders, consent decrees, or 08 administrative determinations involving allegations of unfair or deceptive business 09 practices by the telephone [TELEPHONIC] seller. 10 * Sec. 13. AS 45.63 is amended by adding a new section to read: 11 Sec. 45.63.015. Registration fees. Each separate registration filed under 12 AS 45.63.010(b) must be accompanied by a registration fee. The department shall 13 establish the amount of the fee by regulation. The fees required by this section are 14 nonrefundable and shall be deposited in the general fund. 15 * Sec. 14. AS 45.63.020 is amended to read: 16 Sec. 45.63.020. Written contract required. Until a telephone 17 [TELEPHONIC] seller receives from a buyer a signed, written contract for the 18 purchase, the telephone [TELEPHONIC] seller may not solicit payment for the 19 purchase, charge a credit card account for the purchase, negotiate a check or other 20 commercial instrument intended for payment of the purchase, or accept a cash 21 payment for the purchase. The written contract must notify the buyer of the rights of 22 the buyer under AS 45.63.030(a) and disclose the information required by the 23 department by regulation. 24 * Sec. 15. AS 45.63.030(a) is amended to read: 25 (a) Notwithstanding AS 45.01 - AS 45.08, AS 45.12, AS 45.14, and AS 45.29 26 (Uniform Commercial Code), a telephone [TELEPHONIC] seller shall give the buyer 27 a refund, credit, or replacement, at the option of the buyer, if 28 (1) the property or services purchased are defective, not as represented, 29 or not received as promised by the seller; 30 (2) within seven days after receiving the purchased property, the buyer 31 returns the purchased property and makes a written request for the refund, credit, or
01 replacement; or 02 (3) within seven days after paying for the purchased services and 03 before the services are provided, the buyer makes a written request for the refund or 04 credit. 05 * Sec. 16. AS 45.63.030(c) is amended to read: 06 (c) Notwithstanding AS 45.01 - AS 45.08, AS 45.12, AS 45.14, and AS 45.29 07 (Uniform Commercial Code), a purchase of property from a telephone 08 [TELEPHONIC] seller becomes final seven days after receipt of the property, unless 09 the buyer requests a refund, credit, or replacement under (a) of this section, or the 10 telephone [TELEPHONIC] seller fails to obtain the contract required by 11 AS 45.63.020. 12 * Sec. 17. AS 45.63.030(d) is amended to read: 13 (d) A purchase of services from a telephone [TELEPHONIC] seller becomes 14 final seven days after receipt of the contract required by AS 45.63.020, unless the 15 buyer requests a refund or credit under (a) of this section. 16 * Sec. 18. AS 45.63.040 is amended to read: 17 Sec. 45.63.040. Prohibited representations. (a) Unless the telephone 18 [TELEPHONIC] seller is asked for the information by the buyer, the seller may not 19 state or imply that the seller has a license, consent, or other form of permission from 20 the state. 21 (b) A telephone [TELEPHONIC] seller may not state or imply that 22 (1) the seller is complying with state law; or 23 (2) the seller's compliance with the laws of this state or a municipality 24 constitutes approval or endorsement by the state or municipality. 25 * Sec. 19. AS 45.63 is amended by adding a new section to read: 26 Sec. 45.63.045. Required representations; prohibitions. (a) A telephone 27 seller shall 28 (1) within the first 15 seconds of a call and in a clear and conspicuous 29 manner, disclose the registered seller's name and telephone number, whom the 30 registered seller represents, and that the call is a sales call; and 31 (2) repeat the information at any time during the conversation if
01 requested by a person at the number called. 02 (b) A telephone seller must terminate the telephone solicitation and promptly 03 disconnect the telephone line if the person receiving the call objects to the solicitation 04 or indicates that the person is not interested in the product or service that is the subject 05 of the solicitation. 06 (c) A telephone seller who makes a telephonic solicitation may not cause a 07 telephone to ring repeatedly or continuously with the intent to annoy, abuse, or harass 08 a person at the telephone number called or engage a person in a telephone 09 conversation repeatedly. 10 * Sec. 20. AS 45.63.050 is amended to read: 11 Sec. 45.63.050. Waiver prohibited and void. A telephone [TELEPHONIC] 12 seller may not request or obtain from a buyer a waiver of the rights of the buyer under 13 this chapter. A waiver of the rights of a buyer under this chapter is void. 14 * Sec. 21. AS 45.63.080 is amended to read: 15 Sec. 45.63.080. Exemptions. AS 45.63.010, 45.63.015, 45.63.020, and 16 AS 45.63.030(c) and (d) do [THIS CHAPTER DOES] not apply to a sale or 17 attempted sale 18 (1) of a security regulated under AS 45.55 or a security that is 19 exempted by AS 45.55.900 from regulation under AS 45.55; 20 (2) by a person registered with the United States Securities and 21 Exchange Commission when acting within the scope of the person's Securities and 22 Exchange Commission license; 23 (3) by an issuer, or a subsidiary of an issuer, of a class of securities that 24 is 25 (A) subject to 15 U.S.C. 78a - 78lll (Securities Exchange Act of 26 1934); and 27 (B) either registered under 15 U.S.C. 78a - 78lll (Securities 28 Exchange Act of 1934) or exempt from registration under 15 U.S.C. 29 78l(g)(2)(A) - (C) or (E) - (H); 30 (4) by a real estate broker, associate real estate broker, or real estate 31 salesperson licensed under AS 08.88 and acting in a capacity covered by the license;
01 (5) by a person who has a certificate of registration under AS 08.18 to 02 operate as a contractor and is acting in a capacity covered by the certificate of 03 registration; 04 (6) by an embalmer or funeral director licensed under AS 08.42 and 05 acting in a capacity covered by the license; 06 (7) by an insurance agent, general agent, broker, solicitor, or adjuster 07 licensed under AS 21.27 and acting in a capacity covered by the license; 08 (8) by a person who is primarily soliciting the sale of a subscription to, 09 or advertising in, a newspaper of general circulation; 10 (9) by a charitable organization or paid solicitor if the organization or 11 solicitor is registered to make charitable solicitations under AS 45.68 and is acting in a 12 capacity that is covered by the registration; 13 (10) by a person who is primarily soliciting the sale of a 14 [MAGAZINE, PERIODICAL, SOUND RECORDING, BOOK, OR] membership in a 15 book or record club 16 (A) where the club provides the buyer with a form that the 17 buyer may use to instruct the club not to ship the offered merchandise; and 18 (B) that is regulated by the Federal Trade Commission as a 19 negative option plan under 16 C.F.R. [CFR] 425; 20 (11) of services provided by a cable television system operating under 21 a franchise issued by a municipality; 22 (12) by a person who is soliciting for a business, or for an affiliate of a 23 business, that is regulated by the Regulatory Commission of Alaska; 24 (13) by a person whose solicitation is solely for telephone answering 25 services provided by the person or the person's employer; 26 (14) of property from a mail order catalog that is published on a 27 regular, periodic basis and that describes or pictures the items for sale and prominently 28 provides the specific price of each item; 29 (15) by a supervised financial institution or the parent, subsidiary, or 30 affiliate of a supervised financial institution; in this paragraph, "supervised financial 31 institution" means a commercial bank, savings bank, mutual savings bank, trust
01 company, savings and loan association, credit union, industrial loan company, 02 personal property broker, consumer finance lender, commercial finance lender, or 03 other financial institution if the financial institution is subject to regulation by this 04 state or the United States; 05 (16) by an insurer or the parent, subsidiary, or affiliate of an insurer; 06 (17) by a person who solicits a sale by a contact by telephonic means 07 without intending to complete the sales presentation during the contact, who does not 08 complete the sales presentation during the contact, and who only completes the sales 09 presentation at a later meeting in person, unless at the later meeting the solicitor 10 attempts to collect payment for property or services delivered before the later meeting; 11 (18) of an item of personal property, including a food product, that is 12 made by hand by an individual, if the sale or attempted sale of the item is made by the 13 individual who made the item; in this paragraph, "made by hand" includes the use of 14 ordinary household devices if the majority of the value of the item is added by the 15 labor of the individual. 16 * Sec. 22. AS 45.63.100(1) is amended to read: 17 (1) "buyer" means a person who buys from or is solicited by a 18 [TELEPHONIC] seller by telephonic means; 19 * Sec. 23. AS 45.63.100 is amended by adding a new paragraph to read: 20 (7) "telephone seller" means a person who is required to be registered 21 under AS 45.63.010. 22 * Sec. 24. AS 45.66.020(b) is amended to read: 23 (b) The department shall establish by regulation the application forms for 24 registrations under this chapter. The application forms must require the submission of 25 the following information: 26 (1) the nature of the business opportunity and the method by which it 27 will be offered, advertised, or promoted; 28 (2) the identity and business practices of the person who will be the 29 seller, including information on a related person; and 30 (3) a disclosure of criminal convictions, civil judgments, orders, 31 consent decrees, and administrative determinations involving allegations of
01 (A) fraud, theft, embezzlement, fraudulent conversion, 02 misappropriation of property, the use of untrue or misleading representations in 03 an attempt to sell or dispose of real or personal property, violations of this 04 chapter, violations of AS 45.63 ([TELEPHONIC] solicitations by telephonic 05 means), violations of AS 45.68 (charitable solicitations), or unfair or deceptive 06 business practices under AS 45.50.471 - 45.50.561, or a substantially similar 07 law of another jurisdiction, by the person who will be the seller or by a related 08 person; or 09 (B) a violation of securities or investment laws by the person 10 who will be the seller or by a related person. 11 * Sec. 25. AS 45.66.200(a) is amended to read: 12 (a) Subject to the other requirements of this section and after reviewing a 13 response submitted by the person under (b) of this section, the department may issue 14 an order denying, suspending, or revoking a registration or renewal of a registration 15 made by a person under AS 45.66.010 - 45.66.030, or prohibiting a person from 16 selling or offering to sell business opportunities, if the department finds that 17 (1) the person failed to comply with this chapter or the regulations 18 adopted under this chapter; 19 (2) the sale or offer to sell would constitute, or has constituted, a 20 misrepresentation of, deceit of, or fraud on the buyer; 21 (3) the nature of the person's business enterprise or method of business 22 or the nature or method of the business opportunity includes activities that are illegal 23 where performed; 24 (4) the person failed to file a document, information, fee, or bond 25 required by AS 45.66.010 - 45.66.060; 26 (5) the literature or advertising of the person or of another person 27 recommended by the person is misleading, incorrect, materially incomplete, or 28 deceptive; 29 (6) a person identified in the registration represents an unreasonable 30 risk to the public interest and 31 (A) has been convicted of
01 (i) a felony or misdemeanor involving fraud, theft, 02 embezzlement, fraudulent conversion, misappropriation of property, or 03 the use of untrue or misleading representations in the sale of or offer to 04 sell or otherwise dispose of real or personal property; 05 (ii) violations under this chapter, violations of AS 45.63 06 ([TELEPHONIC] solicitations by telephonic means), violations of 07 AS 45.68 (charitable solicitations), or an unfair trade practice 08 prohibited by AS 45.50.471 - 45.50.561, or a substantially similar law 09 of another jurisdiction; or 10 (iii) a violation of securities or investment laws; 11 (B) is subject to a final order or judgment against the person in 12 a civil or administrative action, including a stipulated order or judgment, if the 13 complaint or petition in the action alleged acts constituting 14 (i) a violation of this chapter or a substantially similar 15 law of another jurisdiction; 16 (ii) fraud, theft, embezzlement, fraudulent conversion, 17 or misappropriation of real or personal property; 18 (iii) the use of untrue or misleading representations in 19 an offer to sell or dispose of real or personal property; 20 (iv) the use of unfair trade practices under 21 AS 45.50.471 - 45.50.561 or a substantially similar law of another 22 jurisdiction; 23 (v) a violation of AS 45.63 or AS 45.68, or a 24 substantially similar law of another jurisdiction; or 25 (vi) a violation of securities or investment laws; 26 (C) is subject to an injunction relating to business activity if the 27 injunction resulted from an action brought by a federal, state, or local public 28 agency, including an action related to an occupational license under AS 08. 29 * Sec. 26. AS 45.66.230(b) is amended to read: 30 (b) To the extent of the conflict, the provisions of this chapter govern if a sale 31 of or an offer to sell a business opportunity is regulated by this chapter and by
01 AS 45.63 ([TELEPHONIC] solicitations by telephonic means), by AS 45.01 - 02 AS 45.08, AS 45.12, AS 45.14, and AS 45.29 (Uniform Commercial Code), or by 03 another law, and it is not possible to comply with or to apply both this chapter and the 04 other law. 05 * Sec. 27. AS 45.68.010(c) is amended to read: 06 (c) To register under this section, a charitable organization or paid solicitor 07 shall file with the department 08 (1) a registration statement on a form or in a format provided and 09 established by the department by regulation; and 10 (2) in the case of a paid solicitor, a bond in the amount and under the 11 conditions established by the department by regulation. 12 * Sec. 28. AS 45.68.010 is amended by adding new subsections to read: 13 (f) The department may require the registration and registration renewal 14 statement required under (c)(1) and (d) of this section to be submitted 15 (1) under oath or affirmation; or 16 (2) with notice that false statements made in the statement are 17 punishable as unsworn falsification under AS 11.56.210. 18 (g) A person may not knowingly provide false statements in documents 19 required by this chapter, including a 20 (1) registration statement; 21 (2) registration renewal statement; 22 (3) report of material change in information required in the registration 23 statement; or 24 (4) financial report by a paid solicitor. 25 * Sec. 29. AS 45.68 is amended by adding a new section to read: 26 Sec. 45.68.015. Registration fees. The registration statement and registration 27 renewal statement filed under AS 45.68.010(c)(1) and (d) must be accompanied by a 28 registration or registration renewal fee. The department shall establish the amount of 29 the fee by regulation. The fees required by this section are nonrefundable and shall be 30 deposited in the general fund. 31 * Sec. 30. AS 45.68 is amended by adding a new section to read:
01 Sec. 45.68.055. Paid solicitor financial reports. (a) Within 90 days after a 02 solicitation campaign is completed and, if a solicitation campaign lasts more than one 03 year, on the one-year anniversary of the commencement of the campaign, a paid 04 solicitor shall file with the department a financial report in accordance with this 05 section. 06 (b) The financial report must 07 (1) be submitted on a form or in a format provided and established by 08 the department of regulation; 09 (2) include gross revenue and an itemization of all expenses incurred 10 in the solicitation campaign during the reporting period; and 11 (3) be signed by two authorized officials of the charitable organization. 12 (c) The authorized contracting agent for the paid solicitor shall sign the report 13 required by (b) of this section. Signature of the report under this subsection must be 14 made under oath or affirmation, but submission of false information in a notice that is 15 not signed under oath or affirmation is punishable as an unsworn falsification under 16 AS 11.56.210. 17 * Sec. 31. AS 45.68.060 is amended to read: 18 Sec. 45.68.060. Public records. The registration statement, registration 19 renewal statement, financial reports of paid solicitors, contracts, and other 20 documents required to be filed with the department under this chapter are public 21 records available for inspection and copying under AS 40.25.110 - 40.25.220. 22 * Sec. 32. AS 45.68.900 is amended by adding a new paragraph to read: 23 (7) "solicitation campaign" means soliciting contributions of money or 24 other property from two or more persons for the same charitable organization. 25 * Sec. 33. AS 45.63.100(6) is repealed. 26 * Sec. 34. AS 45.50.475(a)(1) and 45.50.475(c) are repealed. 27 * Sec. 35. The uncodified law of the State of Alaska is amended by adding a new section to 28 read: 29 APPLICABILITY. (a) On and after July 1, 2004, the amendments found in the 30 following sections of this Act apply to filings with the Department of Law: 31 (1) secs. 12 and 13 of this Act regarding the notice of intent to engage in a
01 solicitation campaign under AS 45.63.010; and 02 (2) secs. 27 - 29 of this Act regarding registration statements and registration 03 renewal statements under AS 45.68.010. 04 (b) Sections 30 and 31 of this Act apply to solicitation campaigns, as defined in 05 AS 45.68.900, as amended by sec. 32 of this Act, that commence on or after July 1, 2004. 06 * Sec. 36. The uncodified law of the State of Alaska is amended by adding a new section to 07 read: 08 TRANSITIONAL PROVISIONS: REGULATIONS. Notwithstanding sec. 39 of this 09 Act, the attorney general may proceed to adopt regulations necessary to implement the 10 changes made by secs. 12, 13, 21, 27 - 30, and 32 of this Act. The regulations take effect 11 under AS 44.62 (Administrative Procedure Act), but not before the effective date of secs. 1 - 12 33 of this Act. 13 * Sec. 37. Section 36 of this Act takes effect immediately under AS 01.10.070(c). 14 * Sec. 38. Section 34 of this Act takes effect the day after the date on which the attorney 15 general notifies the governor and the revisor of statutes that the national do not call registry is 16 established and enforced by the Federal Trade Commission and the Federal Communications 17 Commission. 18 * Sec. 39. Sections 1 - 33 and 35 of this Act take effect July 1, 2004.