Session Law

Identifying Information:L. 2002 ch. 179
Other Identifying Information:2002 House Substitute for Substitute for Senate Bill 296
Tax Type:Other
Brief Description:An Act concerning consumer protection; relating to certain unsolicited telephone calls; prohibiting certain acts and providing penalties for violations; relating to profiteering from a disaster; amending K.S.A. 2001 Supp. 50-670 and repealing the existing section.
Keywords:


Body:

CHAPTER 179

HOUSE Substitute for Substitute for SENATE BILL No. 296


An Act concerning consumer protection; relating to certain unsolicited telephone calls;

prohibiting certain acts and providing penalties for violations; relating to profiteering


from a disaster; amending K.S.A. 2001 Supp. 50-670 and repealing the existing section.


Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 2001 Supp. 50-670 is hereby amended to read as

follows: 50-670. (a) As used in this section and section 2, and amendments

thereto:

(1) ``Consumer telephone call'' means a call made by a telephone

solicitor to the residence of a consumer for the purpose of soliciting a

sale of any property or services to the person called, or for the purpose

of soliciting an extension of credit for property or services to the person

called, or for the purpose of obtaining information that will or may be

used for the direct solicitation of a sale of property or services to the

person called or an extension of credit for such purposes;.

(2) ``Unsolicited consumer telephone call'' means a consumer tele-

phone call other than a call made:

(A) In response to an express request of the person called;

(B) primarily in connection with an existing debt or contract, payment

or performance of which has not been completed at the time of such call;

or

(C) to any person with whom the telephone solicitor or the telephone

solicitor's predecessor in interest had an existing business relationship if

the solicitor is not an employee, a contract employee or an independent

contractor of a provider of telecommunications services; or has an estab-

lished business relationship, unless the consumer has objected to such

consumer telephone calls and requested that the telephone solicitor cease

making consumer telephone calls.

(3) ``Telephone solicitor'' means any natural person, firm, organiza-

tion, partnership, association or corporation who makes or causes to be

made a consumer telephone call, including, but not limited to, calls made

by use of automatic dialing-announcing device;.

(4) ``Automatic dialing-announcing device'' means any user terminal

equipment which:

(A) When connected to a telephone line can dial, with or without

manual assistance, telephone numbers which have been stored or pro-

grammed in the device or are produced or selected by a random or se-

quential number generator; or

(B) when connected to a telephone line can disseminate a recorded

message to the telephone number called, either with or without manual

assistance;.

(5) ``Negative response'' means a statement from a consumer indi-

cating the consumer does not wish to listen to the sales presentation or

participate in the solicitation presented in the consumer telephone call.

(6) ``Established business relationship'' means a prior or existing re-

lationship formed by a voluntary two-way communication between a per-

son or entity and consumer with or without an exchange of consideration,

on a basis of an application, purchase or transaction by the consumer,

within the preceding 36 months, regarding products or services offered

by such person or entity, which relationship has not been previously ter-

minated by either party.

(b) Any telephone solicitor who makes an unsolicited consumer tel-

ephone call to a residential telephone number shall:

(1) Identify themselves;

(2) identify the business on whose behalf such person is soliciting;

(3) identify the purpose of the call immediately upon making contact

by telephone with the person who is the object of the telephone solici-

tation;

(4) promptly discontinue the solicitation if the person being solicited

gives a negative response at any time during the consumer telephone call;

(5) hang up the phone, or in the case of an automatic dialing-an-

nouncing device operator, disconnect the automatic dialing-announcing

device from the telephone line within 25 seconds of the termination of

the call by the person being called; and

(6) a live operator or an automated dialing-announcing device shall

answer the line within five seconds of the beginning of the call. If an-

swered by automated dialing-announcing device, the message provided

shall include only the information required in subsection (b)(1) and (2),

but shall not contain any unsolicited advertisement.

(c) A telephone solicitor shall not withhold the display of the tele-

phone solicitor's telephone number from a caller identification service

when that number is being used for telemarketing purposes and, except

that before January 1, 2005, a telephone solicitor's telephone number shall

not be required to be displayed when the telephone solicitor's service or

equipment is not capable of allowing the display of such number.

(d) A telephone solicitor shall not transmit any written information

by facsimile machine or computer to a consumer after the consumer

requests orally or in writing that such transmissions cease.

(e) A telephone solicitor shall not obtain by use of any professional

delivery, courier or other pickup service receipt or possession of a con-

sumer's payment unless the goods are delivered with the opportunity to

inspect before any payment is collected.

(f) Local exchange carriers and telecommunications carriers shall not

be responsible for the enforcement of the provisions of this section.

(g) Any violation of this section is an unconscionable act or practice

under the Kansas consumer protection act.

(h) This section shall be part of and supplemental to the Kansas con-

sumer protection act.

New Sec. 2. (a) The attorney general shall contract with the direct

marketing association for the no-call list provided for by this section to

be the national no-call list maintained by the telephone preference service

of such association. The contract shall establish:

(1) The maximum fees that telephone solicitors may be charged for

access to the no-call list;

(2) the maximum fees that consumers may be charged to register for

inclusion on the no-call list;

(3) the schedule of dates by which consumers must register in order

to appear on updates of the no-call list. Such schedule of dates shall

provide that time period prior to the date of the next quarterly update in

which consumers must submit their information in order to be included

in the next quarterly update shall not exceed 30 days;

(4) the schedule of dates by which telephone solicitors will be pro-

vided updates of the no-call list. Such schedule of dates shall provide that

the no-call list shall be updated no less frequently than on a quarterly

basis, on January 1, April 1, July 1 and October 1;

(5) what information shall be furnished, without charge, upon request

of a consumer, registered in accordance with this section, concerning a

telephone solicitor or other person who the consumer believes has en-

gaged in an unsolicited consumer telephone call prohibited by this sec-

tion; and

(6) the consent of the direct marketing association to subject itself to

the jurisdiction of the courts of this state for the purpose of enforcing the

provisions of this section; the designation of a resident agent, who is a

resident of Kansas, by the direct marketing association, for service of

process, and who registers with the secretary of state pursuant to K.S.A.

60-306, and amendments thereto; and the agreement of the direct mar-

keting association and its resident agent to comply with the provisions of

this section.

If the direct marketing association does not agree to enter into the

contract provided for by this subsection, the attorney general may con-

tract, upon bids, with another vendor to establish and maintain the no-

call list provided for by this section.

(b) Prior to making unsolicited consumer telephone calls in this state

and quarterly thereafter, a telephone solicitor shall consult the no-call list

provided for by this act, and shall delete from such telephone solicitor's

calling list all state residents who have registered to be on such list. The

direct marketing association, or other vendor maintaining the no-call list,

shall offer to consumers at least one method of registration at no cost and

such registration shall be for a period of five years. Consumers desiring

to register to be on the no-call list may contact the direct marketing

association or other vendor maintaining the no-call list, or the attorney

general. The attorney general may compile a list of telephone numbers

from consumers desiring to register for such service. The attorney general

shall forward the list to the direct marketing association or such other

vendor in electronic format no less than 15 days prior to the date of the

next quarterly update. No registration fee shall be imposed on the attor-

ney general for submission of such list to the direct marketing association

or such other vendor. Membership in the direct marketing association

shall not be a requirement for telephone solicitors to obtain the telephone

preference service list and telephone solicitors shall have access to the

list. A telephone solicitor prior to accessing the no-call list shall submit

the appropriate fee and complete a subscription agreement that: (1) Re-

stricts use of the no-call list exclusively for purposes authorized by this

act; (2) provides the telephone solicitor's contact and mailing information;

and (3) selects the method of updates required (monthly or quarterly). A

consumer desiring to register shall submit to the direct marketing asso-

ciation, or other vendor, the consumer's name, address, city, state and zip

code and the telephone numbers to be registered. The direct marketing

association, or other vendor, shall make available to the attorney general,

in an electronic format, the no-call list and all quarterly updates of such

list at no cost.

(c) The attorney general and the direct marketing association, or

other vendor, shall ensure that consumers are given clear notice that

telephone numbers are not immediately added to the no-call list upon

submission of a consumer's registration and that it may be as long as 120

days before telephone solicitors receive a new no-call list which includes

the consumer's telephone number; that it may be as long as 30 days from

the time of publication of the current quarterly update of the no-call list

before the consumer's telephone number is removed from the telephone

solicitor's calling lists; and that the consumer and the attorney general

may not be able to enforce the provisions of this section until 150 days

have passed since the consumer submitted the consumer's registration to

be on the no-call list.

(d) Telephone solicitors shall have a period of not more than 30 days

from the time of publication of the current quarterly update of the no-

call list to remove a consumer's telephone number from the telephone

solicitor's calling lists.

(e) No telephone solicitor may make or cause to be made any unso-

licited consumer telephone calls to any consumer if the consumer's tel-

ephone number or numbers appear in the current quarterly list of con-

sumers registered on the no-call list. A telephone solicitor shall not use

the no-call list for any other purpose than to remove consumers' tele-

phone numbers from calling lists.

(f) A telephone solicitor shall be liable for violations of subsections

(d) and (e) if such telephone solicitor makes or causes to be made an

unsolicited telephone call to a state resident whose telephone number

appears on the current quarterly no-call list or uses the list for any unau-

thorized purpose.

(g) It shall be an affirmative defense to a violation of this section if

the telephone solicitor can demonstrate, by clear and convincing evi-

dence, that: (1) The telephone solicitor at the time of the alleged violation

had: (A) Obtained a copy of the updated no-call list; (B) established and

implemented, with due care, reasonable practices and procedures to ef-

fectively prevent unsolicited consumer telephone calls in violation of this

section; (C) trained the telephone solicitor's personnel in the require-

ments of this section; and (D) maintained records demonstrating com-

pliance with this section; and (2) the unsolicited consumer telephone call

was the result of an error. Such defense shall not be exercised by a tel-

ephone solicitor more than once within the state of Kansas in any 12-

month period. A telephone solicitor shall be deemed to have exercised

such defense if asserted in response to any consumer complaint about a

violation of this section, regardless of whether litigation has been initiated.

(h) It shall be an affirmative defense to a violation of this section if

the telephone solicitor can demonstrate by clear and convincing evidence

that: (1) The consumer affirmatively listed or held out to the public such

consumer's residential number as a business number; (2) the telephone

solicitor had knowledge of and relied upon such consumer's actions as

provided in subsection (h)(1) at the time of the telephone solicitor's al-

leged violation; and (3) the purpose of the call was directly related to the

consumer's business.

(i) Any violation of this section is an unconscionable act or practice

under the Kansas consumer protection act.

(j) (1) Upon request of the attorney general for the purpose of en-

forcing the provisions of this section, the direct marketing association, or

other vendor, shall furnish the attorney general with all information re-

quested by the attorney general concerning a telephone solicitor or any

person the attorney general believes has engaged in an unsolicited con-

sumer telephone call prohibited by this section. The direct marketing

association, or other vendor, shall not charge a fee for furnishing the

information to the attorney general.

(2) The direct marketing association, or other vendor, shall comply

with any lawful subpoena or court order directing disclosure of the list or

any other information.

(k) The direct marketing association, or other vendor, shall promptly

forward any complaints concerning alleged violations of this section to

the attorney general.

(l) Except as directed by the attorney general, the direct marketing

association shall be prohibited from disclosing or using, in any way, any

and all addresses obtained from consumers in the course of registering

such consumer's phone numbers on the no-call list.

(m) Penalties and fees recovered from prosecutions of violations of

this section shall be paid to the attorney general to investigate and pros-

ecute violations of this section.

(n) The attorney general may convene a meeting or meetings with

consumer advocacy groups to collectively develop a method or methods

to notify the consumer advocacy group's membership and educate and

promote to Kansas consumers generally the availability of the no-call list,

and of a telephone solicitor's obligations under this section.

(o) On or before the first day of each regular legislative session, the

attorney general shall report to the standing committees of the house and

senate which hear and act on legislation relating to telecommunications

issues on the status of implementation of the provisions of this section,

including, but not limited to, the number of consumers who have given

notice of objection, the number of requests for the data base, state rev-

enues received from the respective sources of revenue under this section,

the number of complaints received alleging violations of this section and

actions taken to enforce the provisions of this section.

(p) If the federal trade commission establishes a single national no-

call list the attorney general may designate the list established by the

federal trade commission as the Kansas no-call list.

(q) The attorney general may promulgate rules and regulations to

carry out the provisions of the Kansas no-call act.

(r) The provisions of this section shall be a part of and supplemental

to the Kansas consumer protection act.

(s) The provisions of this section shall be known and may be cited as

the Kansas no-call act.

New Sec. 3. (a) It shall be an unconscionable act within the meaning

of K.S.A. 50-627, and amendments thereto, for any supplier to profiteer

from a disaster.

(b) As used in this section:

(1) ``Profiteer from a disaster'' means unjustifiably increasing during

a time of disaster the price at which any necessary property or service is

offered for sale to consumers. Actual sales at the increased price shall not

be required for the increase to be considered unconscionable. In deter-

mining whether the price increase described in this subsection is unjus-

tified, the court shall consider all relevant circumstances including, but

not limited to, the following: (A) Whether the price charged by the sup-

plier during the time of disaster grossly exceeded the price charged by

the supplier for similar property or services on the business day before

the disaster, and an increase of more than 25% shall be prima facie evi-

dence of gross excess;

(B) whether the amount charged by the supplier during the time of

disaster grossly exceeded the price at which the same or similar property

or services were readily obtainable by other consumers in the trade area,

and a price difference of more than 25% shall be prima facie evidence of

gross excess; and

(C) whether the increase in the amount charged by the supplier dur-

ing the time of disaster was attributable to additional costs incurred by

the supplier in connection with the sale of the product or service, and

proof the supplier incurred such additional costs shall be prima facie

evidence that the price increase was justified when such additional costs

were actually incurred by the supplier during the period in which the

substantially increased price was being charged;

(2) ``time of disaster'' means the period of time when a declaration

of a state of emergency by the president of the United States or the

governor is in effect; or 30 days after the occurrence of the event that

constitutes the disaster, whichever is longer;

(3) ``disaster'' means natural or man-made events including, but not

limited to, tornado or other severe storm, earthquake, flood, fire, riot, act

of war, terrorism, civil disorder or other extraordinary adverse circum-

stance. The court shall find that an event constitutes a disaster if the event

results in the declaration of a state of emergency by the president of the

United States or the governor. The court may find that an event consti-

tutes a disaster in the absence of a declared state of emergency; and

(4) ``necessary property or service'' means any necessary property or

service for which consumer demand does, or is likely to, increase as a

consequence of the disaster and includes, but is not limited to, consumer

food items or property, property or services for emergency cleanup,

emergency supplies, communication supplies and services, medical sup-

plies and services, home heating fuel, building materials and services,

freight, storage services, housing, lodging, transportation and motor fuels.

(c) The provisions of this section shall be part of and supplemental

to the consumer protection act.

Sec. 4. K.S.A. 2001 Supp. 50-670 is hereby repealed.

Sec. 5. This act shall take effect and be in force from and after its

publication in the statute book.

Approved May 29, 2002.


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Date Composed: 10/10/2002 Date Modified: 10/10/2002