Note:
MO
ST 407.635
Chapter 407. Merchandising Practices
Credit Service Organizations
407.635. Definitions
As
used in sections 407.635 to 407.644, the following words and phrases shall mean:
(1) "Buyer", an individual who is solicited to purchase or who
purchases the services of a credit services organization;
(2) "Consumer reporting agency" has the meaning assigned by
section 603(f) of the federal Fair Credit Reporting Act, 15 U.S.C. Section 1681a(f);
(3) "Extension of credit", the right to defer payment of debt or
to incur debt and defer its payment offered or granted primarily for personal
family or household purposes.
407.637. Credit service
organizations--exemptions
1.
A credit services organization is a person who, with respect to the extension
of credit by others and in return for the payment of money or other valuable
consideration, provides or represents that the person can or will provide any
of the following services:
(1)
Improving the buyer's credit record, history or rating;
(2)
Obtaining an extension of credit for a buyer; or
(3)
Providing advice or assistance to a buyer with regard to subdivision (1) or (2)
of this subsection.
2. The following are exempt from the provisions of sections 407.635 to 407.644:
(1)
A person authorized to make loans or extensions of credit under the laws of
this state or the United States who is subject to regulation and supervision by
this state or the United States, or a lender approved by the United States
Secretary of Housing and Urban Development for participation in a mortgage
insurance program under the federal National Housing Act, 12 U.S.C. Section 1701, et seq.;
(2)
A bank or savings and loan association whose deposits or accounts are eligible
for insurance by the Federal Deposit Insurance Corporation, or a subsidiary of
such a bank or savings and loan association;
(3) A credit union doing business in this state;
(4) A nonprofit
organization exempt from taxation under section 501(c)(3) of the Internal
Revenue Code; [FN1]
(5) A person licensed as a real estate broker or salesperson
pursuant to chapter 339, RSMo, acting within the course and scope of that
license;
(6) A person licensed to practice law in this state acting within
the course and scope of the person's practice as an attorney;
(7) A broker-dealer registered with the Securities and Exchange
Commission or the Commodity Futures Trading Commission acting within the course
and scope of that regulation;
(8) A consumer reporting agency;
(9) A person whose
primary business is making loans secured by liens on real property;
(10) A person who is licensed as a certified public accountant
pursuant to chapter 326, RSMo, acting within the course and scope of that
license; or an individual who is enrolled to practice before the Internal
Revenue Service; or an accountant, who is accredited by the Accreditation
Council for Accountancy.
[FN1] 26 U.S.C.A. § 501(c)(3).
407.638. Prohibited activities
A
credit services organization, a salesperson, agent or representative of a
credit services organization, or an independent contractor who sells or
attempts to sell the services of a credit services organization may not:
(1) Charge a buyer or receive from a buyer money or other valuable
consideration before completing performance of all services the credit services
organization has agreed to perform for the buyer, unless the credit services
organization has obtained in accordance with section 407.639 a surety bond in the amount required by subsection 4 of section 407.639, issued by a surety company authorized to do business in this
state, or has established and maintained a surety account at a federally
insured bank or savings and loan association located in this state in which the
amount required by subsection 5 of section 407.639 is held in trust as required by section 407.639;
(2) Charge a buyer or
receive from a buyer money or other valuable consideration solely for referral
of the buyer to a retail seller who will or may extend credit to the buyer if
the credit that is or will be extended to the buyer is substantially the same
as that available to the general public;
(3) Make or use a false or misleading representation in the offer
or sale of the services of a credit services organization, including:
(a) Guaranteeing to "erase bad credit" or words to that
effect unless the representation clearly discloses that this can be done only
if the credit history is inaccurate or obsolete; and
(b) Guaranteeing an extension of credit regardless of the person's
previous credit problem or credit history unless the representation clearly
discloses the eligibility requirements for obtaining an extension of credit;
(4) Engage, directly or
indirectly, in a fraudulent or deceptive act, practice or course of business in
connection with the offer or sale of the services of a credit services
organization;
(5) Make, or advise a buyer to make, a statement with respect to a
buyer's credit worthiness, credit standing, or credit capacity that is false or
misleading or that should be known by the exercise of reasonable care to be
false or misleading, to a consumer reporting agency or to a person who has
extended credit to a buyer or to whom a buyer is applying for an extension of
credit;
(6) Advertise or cause to be advertised, in any manner whatsoever,
the services of a credit services organization without filing a registration
statement with the director of finance, unless otherwise provided by this
chapter.
407.639. Copy of bond to be filed
with director of finance--purpose of bond--amount of bond--statement by
director of finance
1.
This section applies to a credit services organization required by subdivision
(1) of section 407.638 to obtain a surety bond or establish a surety account.
2.
If a bond is obtained, a copy of it shall be filed with the director of
finance. If a surety account is established, notification of the depository,
the trustee and the account number shall be filed with the director of finance.
3.
The bond or surety account required shall be in favor of the state for the
benefit of any person who is damaged by any violation of sections 407.635 to 407.644. The bond or surety account shall also be in favor of any person
damaged by such a violation.
4.
Any person claiming against the bond or surety account for a violation of sections 407.635 to 407.644 may maintain an action at law against the credit services
organization and against the surety or trustee. The surety or trustee shall be
liable only for damages awarded under subdivision (1) of subsection 1 of section 407.644 and not the punitive damages permitted under that section. The
aggregate liability of the surety or trustee to all persons damaged by a credit
services organization's violation of this chapter may not exceed the amount of
the surety account or bond.
5.
The bond or the surety account shall be in the amount of ten thousand dollars.
6.
A depository holding money in a surety account under sections 407.635 to 407.644 shall not convey money in the account to the credit services
organization that established the account or a representative of the credit
services organization unless the credit services organization or representative
presents a statement issued by the director of finance indicating that section 407.640 [FN1] has been satisfied in relation to the
credit services organization. The director of finance may conduct
investigations and require submission of information as is necessary to enforce
this section.
7.
The bond or surety account shall be maintained until two years after the date
that the credit services organization ceases operations.
[FN1] Revisor's note--1991: Original rolls contain reference to "subsection 6 of section 5" (407.640), an apparent typographical error since section 407.640 does not contain a subsection 6. All of section 407.640 seems germane to the original reference.
407.640. Registration statements,
filing, contents
1.
A credit services organization shall file a registration statement with the
director of finance before conducting business in this state. The registration
statement must contain:
(1)
The name and address of the credit services organization; and
(2)
The name and address of any person who directly or indirectly owns or controls
ten percent or more of the outstanding shares of stock in the credit services
organization.
2.
The registration statement must also contain either:
(1) A full and complete
disclosure of any litigation or unresolved complaint filed by or with a
governmental authority of this state relating to the operation of the credit
services organization; or
(2) A notarized statement that states that there has been no
litigation or unresolved complaint filed by or with a governmental authority of
this state relating to the operation of the credit services organization.
3.
The credit services organization shall update the statement not later than the
ninetieth day after the date on which a change in the information required in
the statement occurs.
4.
Each credit services organization registering under this section shall maintain
a copy of the registration statement in the office of the credit services
organization. The credit services organization shall allow a buyer to inspect
the registration statement on request.
5.
The director of finance may charge each credit services organization that files
a registration statement with the director of finance a reasonable fee not to
exceed one hundred dollars to cover the cost of filing. The director of finance
may not require a credit services organization to provide information other
than that provided in the registration statement as part of the registration
process.
407.641. Contract, writing, contents
1.
Before executing a contract or agreement with a buyer or receiving money or
other valuable consideration, a credit services organization shall provide the
buyer with a statement in writing, containing:
(1)
A complete and detailed description of the services to be performed by the
credit services organization for the buyer and the total cost of the services;
(2)
A statement explaining the buyer's right to proceed against the bond or surety
account required by subdivision (1) of section 407.638;
(3)
The name and address of the surety company that issued the bond, or the name
and address of the depository and the trustee, and the account number of the
surety account;
(4)
A complete and accurate statement of the buyer's right to review any file on
the buyer maintained by a consumer reporting agency, as provided by the federal
Fair Credit Reporting Act, 15 U.S.C. Section 1681, et seq.;
(5) A statement that the buyer's file is available for review at
no charge on request made to the consumer reporting agency within thirty days
after the date of receipt of notice that credit has been denied, and that the
buyer's file is available for a minimal charge at any other time;
(6) A complete and accurate statement of the buyer's right to
dispute directly with the consumer reporting agency the completeness or
accuracy of any item contained in a file on the buyer maintained by that
consumer reporting agency;
(7) A statement that accurate information cannot be permanently
removed from the files of a consumer reporting agency;
(8) A complete and accurate statement of when consumer information
becomes obsolete and of when consumer reporting agencies are prevented from
issuing reports containing obsolete information; and
(9) A complete and accurate statement of the availability of
nonprofit credit counseling services.
2.
The credit services organization shall maintain on file, for a period of two
years after the date the statement is provided, an exact copy of the statement,
signed by the buyer, acknowledging receipt of the statement.
407.642. Contract requirements,
cancellation clause
1.
Each contract between the buyer and a credit services organization for the
purchase of the services of the credit services organization must be in
writing, dated, signed by the buyer and must include:
(1)
A statement in type that is boldfaced, capitalized, underlined, or otherwise
set out from surrounding written material so as to be conspicuous, in immediate
proximity to the space reserved for the signature of the buyer, as follows:
"YOU,
THE BUYER, MAY CANCEL THIS CONTRACT AT ANY TIME BEFORE MIDNIGHT OF THE THIRD
DAY AFTER THE DATE OF THE TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION
FORM FOR AN EXPLANATION OF THIS RIGHT";
(2) The terms and conditions of payment, including the total of
all payments to be made by the buyer, whether to the credit services
organization or to another person;
(3) A full and detailed description of the services to be
performed by the credit services organization for the buyer, including all
guarantees and all promises of full or partial refunds, and the estimated
length of time, not to exceed one hundred eighty days, for performing the
services; and
(4) The address of the credit services organization's principal
place of business and the name and address of its registered agent in the state
authorized to receive service of process.
2.
The contract must have attached two easily detachable copies of a notice of
cancellation. The notice must be in boldfaced type and in the following form:
"NOTICE OF CANCELLATION
YOU
MAY CANCEL THIS CONTRACT, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE DAYS
AFTER THE DATE THE CONTRACT IS SIGNED. IF YOU CANCEL, ANY PAYMENT MADE BY YOU
UNDER THIS CONTRACT WILL BE RETURNED WITHIN TEN DAYS AFTER THE DATE OF RECEIPT
BY THE SELLER OF YOUR CANCELLATION NOTICE. TO CANCEL THIS CONTRACT, MAIL OR
DELIVER A SIGNED DATED COPY OF THIS CANCELLATION NOTICE, OR OTHER WRITTEN
NOTICE TO:
(NAME
OF SELLER) AT (ADDRESS OF SELLER) (PLACE OF BUSINESS) NOT LATER THAN MIDNIGHT
(DATE). I HEREBY CANCEL THIS TRANSACTION.
DATE: ________________________________________
BUYER'S SIGNATURE: ___________________________"
3.
The credit services organization shall give to the buyer a copy of the completed contract and all other documents the credit
services organization requires the buyer to sign at the time they are signed.
4.
The breach by a credit services organization of a contract under this section,
or of any obligation arising from a contract under this section, is a violation
of sections 407.635 to 407.644.
407.643. Waiver of buyer's rights
void
1.
A credit services organization may not attempt to cause a buyer to waive a
right under sections 407.635 to 407.644.
2.
A waiver by a buyer of any part of sections 407.635 to 407.644 is void.
407.644. Actions--damages--penalties
1. (1) A buyer injured by a violation of sections 407.635 to 407.644 may bring an action for recovery of damages. The
damages awarded may not be less than the amount paid by the buyer to the credit
services organization, plus reasonable attorney's fees and court costs.
(2) The buyer may also be awarded punitive damages.
2. The attorney general
or a buyer may bring an action in a court of competent jurisdiction to enjoin a
violation of sections 407.635 to 407.644.
3. A violation of sections 407.635 to 407.644 is an unlawful practice pursuant to sections 407.010 to 407.130, and the violator shall be subject to all penalties, remedies and
procedures provided in sections 407.010 to 407.130.
4. An action may not be
brought under subsection 1 or 3 of this section after four years after the date
of the execution of the contract for services to which the action relates.
5. A person who violates
any provision of sections 407.635 to 407.644 is guilty of a class B misdemeanor.
6. In an action under
this section the burden of proving an exemption under section 407.637 is on the person claiming the exemption.
7. The remedies provided
by sections 407.635 to 407.644 are in addition to other remedies provided by law.
V.A.M.S. 407.1076
Vernon's Annotated Missouri Statutes Currentness
Telemarketing Practices
407.1070.
Definitions
As used in sections 407.1070 to 407.1085,
the following terms shall mean:
(1) "Advertisement", as defined in section
407.010;
(2) "Caller identification service", a type
of telephone service which permits telephone subscribers to see the telephone
number of incoming telephone calls;
(3) "Consumer", a natural person who
purchases, may purchase or is solicited for purchase of merchandise or an
investment opportunity by a telemarketer through telemarketing;
(4) "Established business
relationship", a prior or existing relationship formed by a voluntary
two-way communication between a seller or telemarketer and a consumer with or
without an exchange of consideration, on the basis of an inquiry, application,
purchase or transaction by the consumer regarding products or services offered
by such seller or telemarketer, which relationship has not been previously
terminated by either party;
(5) "Fictitious name", any name, other than
the legal name, used by a seller or telemarketer;
(6) "Investment opportunity", anything
tangible or intangible that is offered for sale, sold or traded based wholly or
in part on representations, either express or implied, about past, present or
future income, profit or appreciation;
(7) "Material aspect or element", any
factor likely to significantly influence the consumer's choice of, or conduct
regarding, merchandise;
(8) "Merchandise", any objects, wares,
goods, commodities, intangibles, real estate or services; except that
merchandise shall not include any services, goods or memberships given to a
contributor by an entity, organized pursuant to Chapter 501(c)(3) of the United
States Internal Revenue Code, while such entity is engaged in fund-raising to
support the charitable purpose for which the entity was established provided
that a bona fide member of such exempt organization makes the voice
communication;
(9) "Prize", anything offered or
purportedly offered or given or purportedly given to a consumer by chance. For
purposes of this definition, chance exists if a consumer is guaranteed to
receive anything of value and, at the time of the offer or purported offer, the
telemarketer does not identify the specific item that the consumer will
receive;
(10) "Promptly", at the beginning of any
call initiated by a telemarketer to a consumer;
(11) "Seller", any person who, in connection
with a telemarketing transaction, provides, offers to provide, or arranges for
others to provide merchandise to the consumer in exchange for consideration;
(12)
"Telemarketer", any person, or any recorded, computer-generated,
electronically generated or other voice communication of any kind, who, in
connection with telemarketing, initiates or receives telephone calls to or from
a consumer. A telemarketer includes, but is not limited to, any such person
that is an owner, operator, officer, director or partner to the management
activities of a business;
(13)
"Telemarketing", a plan, program or campaign which is conducted to
induce the purchase or lease of merchandise by use of one or more telephones
and which involves more than one telephone call.
407.1073.
Telemarketers, disclosures to consumers, misrepresentations
1. A telemarketer shall disclose, promptly and in a
clear and conspicuous manner, to the consumer receiving the telephone call the
following:
(1) That the purpose of the telephone call is to make
a sale;
(2) The telemarketer's identifiable name and the
seller on whose behalf the solicitation is being made;
(3) The nature of the merchandise or investment
opportunity being sold;
(4) That no purchase or payment is necessary to be
able to win a prize or participate in a prize promotion if a prize promotion is
offered. This disclosure shall be made before or in
conjunction with the description of the prize to the consumer called; and
(5) If the telephone call is made by any recorded,
computer-generated, electronically generated or other voice communication of
any kind. When engaged in telemarketing, such voice communication shall,
promptly at the beginning of the telephone call, inform the consumer that the
call is being made by a recorded, computer-generated, electronically generated
or other type of voice communication, as the case may be.
2. Before a consumer pays for merchandise offered for
sale through telemarketing, the telemarketer shall disclose, in a clear and
conspicuous manner, the following:
(1) The seller or telemarketer's identifiable name
and the address or telephone number where the seller or telemarketer can be
reached;
(2) The total cost and quantity of the merchandise
that is the subject of the telemarketing sales call;
(3) Any material restriction, limitation or condition
to purchase, receive or use the merchandise that is the subject of a
telemarketing sales call;
(4) Any material aspect of the nature or terms of the
refund, cancellation, exchange or repurchase policies, including the absence of
such policies;
(5) Any material aspect of an investment opportunity
being offered, including benefits, the price of the land or other investment,
and the location of the investment;
(6) Material elements of a prize promotion,
including:
(a) The odds of being
able to receive the prize and, if the odds are not calculable in advance, the
factors and methods used in calculating the odds;
(b) That no purchase
or payment of any kind is required to win a prize or to participate in a prize
promotion;
(c) The no-purchase or
no-payment method of participating in the prize promotion, with either
instructions on how to participate or an address or local or toll-free
telephone number to which consumers may write or call for information on how to
participate; and
(d) All material
conditions to receive or redeem the prize.
3. A telemarketer shall not misrepresent, directly or
by implication, any of the following:
(1) A description of
the prize;
(2) Its market value;
(3) The actual number
of each prize to be awarded;
(4) The date by which
the prize will be awarded.
4. A telemarketer shall not misrepresent any material
aspect of the performance, quality, efficacy, nature or basic characteristics
of merchandise that is the subject of a telemarketing sales call.
407.1076.
Telemarketers or sellers, prohibited conduct
It is an unlawful telemarketing act or practice for
any seller or telemarketer to engage in the following conduct:
(1) Misrepresent any material fact required pursuant
to section
407.1073. It is a defense to this subdivision if a seller or
telemarketer shows, by a preponderance of the evidence, that the
misrepresentation resulted from a bona fide error notwithstanding the
maintenance of procedures reasonably adopted to avoid the error, and no civil
penalties shall be imposed if this defense is met;
(2) Threaten, intimidate or use profane or obscene
language;
(3) Cause the telephone to ring or engage any
consumer in telephone conversation repeatedly or
continuously in a manner a reasonable consumer would deem to be annoying,
abusive or harassing;
(4) Knowingly and willfully initiate a telemarketing
call to a consumer, or transfer or make available to others for telemarketing
purposes a consumer's telephone number when that consumer has stated previously
that he or she does not wish to receive solicitation calls by or on behalf of
the seller unless such request has been rescinded;
(5) Engage in telemarketing to a consumer's residence
at any time other than between 8:00 a.m. and 9:00 p.m. local time at the called
consumer's location;
(6) Request or receive payment in advance to remove
derogatory information from or improve a consumer's credit history, credit
record or credit rating;
(7) Request or receive
payment in advance from a consumer to recover or otherwise
aid in the return of money or any other item lost by the consumer in a prior
telemarketing transaction, except that this provision shall not apply to
services provided by a licensed attorney;
(8)
Obtain or submit for payment a check, draft or other form of negotiable paper
drawn on a consumer's checking, savings, share or similar account without the
consumer's express written or oral authorization. Such authorization shall be
deemed verifiable if any of the following means are employed:
(a) Express written
authorization by the consumer, which may include the consumer's signature on
the negotiable instrument;
(b) Express oral
authorization which is tape-recorded and made available upon request to the
consumer's bank and which evidences clearly both the consumer's authorization
of payment for the merchandise that is the subject of the sales offer and the
consumer's receipt of all of the following information:
a. The date of the
draft or drafts;
b. The amount of the
draft or drafts;
c. The payor's name;
d. The number of draft
payments;
e. A telephone number
for consumer inquiry that is answered during normal business hours; and
f. The date of the
consumer's oral authorization; or
(c)
Written confirmation of the transaction, sent to the consumer prior to
submission for payment of the consumer's check, draft or other form of
negotiable paper, which shall include:
a. All of the
information contained in paragraph (b) of this subdivision; and
b. The procedures by
which the consumer can obtain a refund from the seller or telemarketer in the
event that the confirmation is inaccurate;
(9)
Procure the services of any professional delivery, courier or other pick-up
service to obtain immediate receipt or possession of a consumer's payment,
unless the merchandise or investment opportunity is delivered with the
opportunity to inspect before any payment is collected;
(10)
Knowingly provide assistance or support to any telemarketer when that person
knows or consciously avoids knowing that the telemarketer is engaged in any act in violation of sections
407.1070 to 407.1085;
or
(11)
Knowingly utilize any method to block or otherwise circumvent a consumer's use
of a caller identification service.
407.1079.
Telemarketers or sellers, recordkeeping
1. A seller or telemarketer shall keep for a period
of twenty-four months from the date the record is produced all verifiable
authorizations and records as required in sections
407.1070 to 407.1085,
in the form, manner, format or place as they keep such records in the ordinary
course of business, including but not limited to:
(1) All substantially different advertising,
brochures, telemarketing scripts and promotional materials;
(2) For any prize with a value of twenty-five dollars
or greater, the name and last known address of each prize recipient and the
prize awarded;
(3) The name and last known address of each consumer,
the merchandise purchased, the date such merchandise was
shipped or provided and the amount paid by the consumer for the merchandise;
(4) The name, any fictitious name used, the last
known home address and telephone number, and the job title for all current and
former employees directly involved in telephone sales, provided, that if the
seller permits fictitious names to be used by employees, each fictitious name
must be traceable to only one specific employee; and
(5) All written authorizations required to be
provided or received pursuant to sections
407.1070 to 407.1085.
2. For offers of consumer credit products subject to
The Truth in Lending Act, 15 U.S.C. et seq., and Regulation Z, 12 CFR 226,
compliance with the record-keeping requirements pursuant to The Truth in
Lending Act and Regulation Z shall constitute compliance with subdivision (3)
of subsection 1 of this section.
3. The seller and the telemarketer calling on behalf
of the seller may, by written agreement, allocate responsibility between
themselves for the record keeping required by this section. When a seller and
telemarketer have entered into such an agreement, the terms of the agreement
shall govern, and the seller or telemarketer, as the case may be, need not keep
records that duplicate those of the other. If the agreement is unclear as to
who must maintain any required record, or if no such agreement exists, the
seller shall be responsible for complying with subdivisions (1), (2), (3) and
(5) of subsection 1 of this section and the telemarketer shall be responsible
for complying with subdivision (4) of subsection 1 of this section.
4. In the event of any dissolution or termination of
the telemarketer's business, the telemarketer shall maintain all records as
required pursuant to this section. In the event of any sale, assignment or
other change in ownership of the seller's business, the successor shall
maintain all records required pursuant to this section.
1. It is unlawful pursuant to section
407.020 to violate any provision of sections
407.1070 to 407.1085 or to misrepresent or omit the required disclosures of section
407.1073 or 407.1076,
and pursuant to sections
407.010 to 407.130,
the violator shall be subject to all penalties, remedies and procedures
provided in sections
407.010 to 407.130.
The remedies available in this section are cumulative and in addition to any
other remedies available by law.
2. Any person who willfully and knowingly engages in
any act or practice declared to be unlawful by any provision of subdivisions
(2) to (5) of section
407.1076 shall be guilty of a class A misdemeanor. Any person who
willfully and knowingly engages in any act or practice declared to be unlawful
by any provision of subdivision (1) of section
407.1076, or of subdivisions (6) to (11) of section
407.1076, shall be guilty of a class D felony. Any person previously
convicted of a class D felony pursuant to this subsection shall,
for each subsequent conviction, be guilty of a class D felony punishable by the
term of years set out for a class D felony, but with a fine of not more than
five thousand dollars or a fine equal to triple the gain, with no limit on the
amount recoverable pursuant to any triple-the-gain penalty. Any person who
willfully and knowingly fails to keep the records required in section
407.1079 shall be guilty of a class A misdemeanor.
3. In addition to the remedies already provided in sections
407.1070 to 407.1085,
any consumer that suffers a loss or harm as a result of any unlawful
telemarketing act or practice pursuant to section
407.1076 may recover actual and punitive damages, reasonable
attorney's fees, court costs and any other remedies provided by law.
407.1085.
Exempt acts or practices--complaints
1. The following acts or practices are exempt from
the provisions of sections
407.1070 to 407.1082:
(1) Telephone calls in which the sale of merchandise
is not completed, and payment or authorization of payment is not required,
until after a face-to-face sales presentation by the telemarketer or seller; or
(2) Telephone calls in which the sale of merchandise
is completed and a written contract is forwarded to the consumer so long as the
consumer may return the merchandise within fourteen days of receipt of the
merchandise and receive a refund of any moneys paid except for any coverage,
fees or services earned; provided that the telemarketer shall inform the
consumer at the time of the call that:
(a) A written contract
regarding the sale of the merchandise will be forwarded to the consumer;
(b) The approximate
date of the delivery of the merchandise; and
(c) The consumer will
have a right to terminate the contract within fourteen days of receipt of the
merchandise, and upon returning the merchandise, shall have a right to a refund
as provided in this subdivision.
The term "merchandise" as used in this
subdivision shall mean merchandise sold by a person, institution or company
that is under the direction and supervision of the director of the department
of insurance, director of the division of credit unions or director of the
division of finance or federally chartered banks, savings and loans and credit
unions;
(3) Telephone calls initiated
by a consumer that:
(a) Are not the result
of any advertisement by a seller or telemarketer;
(b) Are in response to
an advertisement through any media, other than direct mail or telemarketing,
which discloses the name of the seller and the identity of the merchandise; provided
that, this exemption shall not apply to calls initiated by the consumer in
response to an advertisement that offers a prize or investment opportunity, or
is used to engage in telemarketing activities prohibited by subdivision (6) or
(7) of section
407.1076; or
(c) Are in response to
direct mail solicitations that clearly and conspicuously disclose and do not
misrepresent the material information required by subsection 2 of section
407.1073; provided that, this exemption does not apply to calls
initiated by the consumer in response to an advertisement that offers a prize
or investment opportunity, or is to engage in telemarketing activities
prohibited by subdivision (6) or (7) of section
407.1076; or
(d) Are in response to
the mailing of a catalog which contains a written description or illustration
of the goods or services offered for sale; includes the business address of the
seller, includes multiple pages of written materials or illustrations; and has
been issued not less frequently than once a year, when the seller or
telemarketer does not contact consumers by telephone but only receives calls
initiated by consumers in response to the catalog, and stops further
solicitation of items not in a catalog when the consumer states that he or she
is not interested in any further solicitations; or
(4) Telephone calls or messages:
(a) To any consumer
with such consumer's prior express invitation or permission;
(b) To any consumer
with whom the seller has an established business relationship;
or
(c) By or on behalf of
any entity over which either a state or federal agency has regulatory authority
to the extent that:
a. Subject to such
authority, the entity is required to maintain a license, registration,
certificate or permit to sell or provide the merchandise being offered through
telemarketing; and
b. As of August 28,
2000, the state or federal agency has, directly or through a delegation of
authority which is enforceable pursuant to state or federal law, promulgated
rules that regulate the telemarketing sales practices of the entity for the
merchandise that entity offers through telemarketing and are reasonably
consistent with the requirements of section
407.1070 through section
407.1079 and which allow consumer redress pursuant to that agency's
rules or applicable federal law;
(d) Between a
telemarketer and any business except calls involving the retail sale of
nondurable office and cleaning supplies.
2. The office of the attorney general shall receive
telemarketing complaints by means of a toll-free telephone number, by a notice
in writing or by electronic means. Complaints against entities who are
licensed, certificated or permitted and whose telemarketing practices are
regulated by the same state or federal agency and which agency has rules
regulating telemarketing practices shall be forwarded for investigation by the
office of the attorney general to such agency. All other complaints shall be
handled by the office of the attorney general.
407.1090.
Payment for contribution solicitation, amount based on contributions,
organizations net percentage of contributions, disclosure
When any entity is paid for soliciting contributions
via telephone calls, and the pay is based on contributions received as a result
of the phone call, the entity making the calls must disclose immediately to all
called parties the net percentage of contributions that go to the organization
for which the contribution is solicited.
.
Case Law
I identified no significant cases construing this statutes.