Arkansas Regulation of Telephonic Sellers
A.C.A. § 4-99-101, et seq.
Arkansas Code
Title 4 - Business and Commercial Law
Subtitle 7 - Consumer Protection
Chapter 99 - Regulation of Telephonic Sellers
Subchapter 1 - General Provisions
§ 4-99-101. Legislative finding, declaration, and intent
§ 4-99-102. Construction
§ 4-99-103. Definitions
§ 4-99-104. Registration procedures — Fees — Duration
§ 4-99-105. Filing information
§ 4-99-106. Exemption information — Requirements
§ 4-99-107. Bond requirement — Promotions — Notice prior to inception
§ 4-99-108. Information to be provided each prospective purchaser
§ 4-99-109. Irrevocable consent appointing Secretary of State to act as seller's attorney to receive service — Conditions of effective service
§ 4-99-110. Soliciting prospective purchasers on behalf of unregistered telephonic seller prohibited — Violation
§ 4-99-111. Remedies provided for violation of provisions of this chapter not exclusive — Rights of Attorney General
§ 4-99-112. Burden of proving an exemption or exception
Subchapter 2 - Residential Sales and Solicitations
§ 4-99-201. Caller identification — Information offered — Penalty for violation
§ 4-99-202. Collection practices
§ 4-99-203. Consumer's express written authorization required
Subchapter 3 - Caller Identification Blocking by Telephonic Sellers
§ 4-99-301. Definitions
§ 4-99-302. Prohibition
§ 4-99-303. Penalties — Remedies — Enforcement
Subchapter 4 - Arkansas Consumer Telephone Privacy Act
§ 4-99-401. Short title
§ 4-99-402. Legislative findings and intent
§ 4-99-403. Definitions
§ 4-99-404. Statewide database
§ 4-99-405. Prohibitions
§ 4-99-406. Applicability of subchapter
§ 4-99-407. Enforcement by the Attorney General
§ 4-99-408. Moneys derived from listing charge
§ 4-99-101. Legislative finding, declaration, and intent
(a) The General Assembly recognizes that the widespread use of telephone solicitors to initiate sales of goods, real property, and investment opportunities has created numerous problems for purchasers and investors which are inimical to good business practices. Telephonic sales have a significant impact upon the economy and well-being of this state and its local communities. However, purchasers have suffered substantial losses because of misrepresentations, lack of full and complete information regarding both the telephonic seller and the goods and investments the telephonic seller is offering, and failure of delivery. The provisions of this chapter relating to telephonic sellers are necessary for the public welfare.
(b) It is the intent of the legislature in enacting this chapter to:
(1) Provide each prospective telephonic sales purchaser with information necessary to make an intelligent decision regarding the offer made;
(2) Safeguard the public against deceit and financial hardship;
(3) Ensure, foster, and encourage competition and fair dealings among telephonic sellers by requiring adequate disclosure; and
(4) Prohibit representations that tend to mislead.
History
Acts 1993, No. 137, § 1.
§ 4-99-102. Construction
This chapter shall be construed liberally in order to achieve these purposes.
History
Acts 1993, No. 137, § 1.
4-99-103. Definitions.
As used in this chapter:
(1) “Caller identification service” means a service offered by a telecommunications provider that provides caller identification information to a device capable of displaying the information;
(2) [Repealed.]
(3) “Item” means any goods and services and includes coupon books which are to be used with businesses other than the seller's business;
(4) “Owner” means a person who owns or controls ten percent (10%) or more of the equity of or otherwise has claim to ten percent (10%) or more of the net income of a telephonic seller;
(5) “Person” includes an individual, firm, association, corporation, partnership, joint venture, or any other business entity;
(6) “Principal” means an owner, an executive officer of a corporation, a general partner of a partnership, a sole proprietor of a sole proprietorship, a trustee of a trust, or any other individual with similar supervisory functions with respect to any person;
(7) “Purchaser” or “prospective purchaser” means a person who is solicited to become or does become obligated to a telephonic seller;
(8) “Salesperson” means any individual employed, appointed, or authorized by a telephonic seller, whether referred to by the telephonic seller as an “agent”, “representative”, or “independent contractor”, who attempts to solicit or solicits a sale on behalf of the telephonic seller. The principals of a seller are themselves salespersons if they solicit sales on behalf of the telephonic seller; and
(9) “Telephonic seller” or “seller” means a person who on his or her own behalf or through salespersons causes a telephone solicitation or attempted telephone solicitation to occur which meets the criteria specified in subdivision (9)(A) or subdivision (9)(B) of this section, and who is not exempted by subdivision (9)(C) of this section, as follows:
(A) A telephone solicitation or attempted telephone solicitation wherein the telephonic seller initiates telephonic contact with a prospective purchaser and represents or implies one (1) or more of the following:
(i) That a prospective purchaser who buys one (1) or more items will also receive additional or other items, whether or not of the same type as purchased, without further cost. For purposes of this subdivision (9)(A)(i), “further cost” does not include actual postage or common carrier delivery charges, if any;
(ii) That a prospective purchaser will receive a prize or gift if the person also encourages the prospective purchaser to do either of the following:
(a) Purchase or rent any goods or services; or
(b) Pay any money, including, but not limited to, a delivery or handling charge;
(iii) That a prospective purchaser is able to obtain any item or service at a price which the seller states or implies is below the regular price of the item or service offered. This subdivision (9)(A)(iii) shall not apply to retailers who within the previous twelve (12) months have sold a majority of their goods or services through in-person sales at retail stores;
(iv) That the seller is a person other than the person he or she is; or
(v) That the items for sale are manufactured or supplied by a person other than the actual manufacturer or supplier;
(B)
(i) A solicitation or attempted solicitation which is made by telephone in response to inquiries generated by unrequested notifications sent by the seller to persons who have not previously purchased goods or services from the seller or who have not previously requested credit from the seller to a prospective purchaser wherein the seller represents or implies to the recipient of the notification that any of the following applies to the recipient:
(a) That the recipient has in any manner been specially selected to receive the notification or the offer contained in the notification;
(b) That the recipient will receive a prize, gift, or award if the recipient calls the seller; or
(c) That, if the recipient buys one (1) or more items from the seller, the recipient will also receive additional or other items, whether or not of the same type as purchased, without further cost or at a cost which the seller states or implies is less than the regular price of such items.
(ii) This subdivision (9)(B) does not apply to the solicitation of sales by a catalogue seller who periodically issues and delivers catalogues to potential purchasers by mail or by other means. This exception only applies if the catalogue includes a written description or illustration and the sales price of each item or merchandise offered for sale includes at least twenty-four (24) full pages of written material or illustrations, is distributed in more than one (1) state, and has an annual circulation of no fewer than two hundred fifty thousand (250,000) customers; and
(C) As used in this chapter, “telephonic seller” or “seller” does not include any of the following:
(i) A person offering or selling a security and who is registered pursuant to § 23-42-301 et seq.;
(ii) A person offering or selling insurance and who is licensed pursuant to § 23-64-201 et seq.;
(iii) A person primarily soliciting the sale of a newspaper of general circulation, a magazine, or membership in a book or record club whose program operates in conformity with § 4-89-101 et seq. and the Arkansas Mail and Telephone Consumer Product Promotion Fair Practices Act, § 4-95-101 et seq.;
(iv) A person soliciting business from prospective purchasers who have previously purchased from the business enterprise for which the person is calling;
(v)
(a) A person soliciting without the intent to complete and who does not complete the sales presentation during the telephone solicitation but completes the sales presentation at a later face-to-face meeting between the solicitor and the prospective purchaser.
(b) However, if a seller, directly following a telephone solicitation, causes an individual whose primary purpose it is to go to the prospective purchaser to collect the payment or deliver any item purchased, this exemption does not apply;
(vi) Any supervised financial institution or parent, subsidiary, or affiliate thereof. As used in this subdivision (9)(C)(vi), “supervised financial institution” means any commercial bank, trust company, savings and loan association, credit union, industrial loan company, personal property broker, consumer finance lender, commercial finance lender, or insurer, provided that the institution is subject to the supervision of an official or agency of this state or of the United States;
(vii) Any burial association operating pursuant to the authority of § 23-78-101 et seq.;
(viii) A person or an affiliate of a person whose business is regulated by the Arkansas Public Service Commission;
(ix) An issuer or a subsidiary of an issuer that has a class of securities which is subject to and which is either registered or exempt from registration under § 23-42-401 et seq.;
(x) A person soliciting a transaction regulated by the United States Commodity Futures Trading Commission if the person is registered or temporarily licensed for this activity with the United States Commodity Futures Trading Commission under the Commodity Exchange Act, 7 U.S.C. § 1 et seq., and the registration or license has not expired or been suspended or revoked; or
(xi) A person soliciting a transaction directed to a purchaser holding a permit pursuant to the Arkansas Gross Receipts Act of 1941, § 26-52-101 et seq., and in which the solicitation deals with goods of a type that are subject to resale by the purchaser.
History
Acts 1993, No. 137, §§ 2, 3; 1995, No. 440, § 1; 2003, No. 1465, § 3; 2017, No. 728, § 1.
§ 4-99-104. Registration procedures — Fees — Duration
(a)
(1) Not less than ten (10) days before doing business in this state, a telephonic seller shall register with the Secretary of State by filing the information required by this chapter and a filing fee of one hundred dollars ($100).
(2) A seller shall be deemed to do business in this state if the seller solicits prospective purchasers from locations in this state or solicits prospective purchasers who are located in this state.
(b) Registration of a telephonic seller shall be valid for one (1) year from the effective date thereof and may be renewed by making the filing required by this chapter and paying a filing fee of one hundred dollars ($100).
(c) The information required by this chapter shall be submitted on a form prescribed by the Secretary of State and shall be verified by a declaration signed by each principal of the telephonic seller under penalty of perjury.
(d)
(1) Except as provided in subdivision (d)(2) of this section and before expiration of a seller's annual registration, if there is a material change in the information required under this chapter, the seller shall, within ten (10) days, file an addendum updating the information with the Secretary of State.
(2) Changes in salespersons soliciting on behalf of a seller shall be updated in quarterly intervals computed from the effective date of registration.
(e)
(1) Upon receipt of a filing and filing fee under subsection (a) or subsection (b) of this section, the Secretary of State shall send the telephonic seller a written confirmation of registration.
(2) If the seller has more than one (1) business location, the confirmation of registration shall be sent to the principal business location identified in the seller's filing in sufficient number so that the seller has a confirmation of registration for each location to be displayed in a conspicuous place at each of the seller's business locations and available for inspection by any governmental agency at each location.
(3) Until confirmation of registration is received and posted, the seller shall post in a conspicuous place at each of the seller's business locations within this state a copy of the first page of the registration form sent to the Secretary of State.
(f)
(1) Every salesperson shall be employed in a principal-agent relationship by a telephonic seller registered under this chapter and shall, within seventy-two (72) hours after accepting such employment, register with the Secretary of State.
(2) An application for registration shall be on a form prescribed by the Secretary of State, verified by a declaration signed by each salesperson under penalty of perjury, and shall be accompanied by a fee in the sum of ten dollars ($10.00).
(3) When effective, the registration shall be for a period of one (1) year and may be renewed upon the payment of the fee prescribed in this section for additional one-year periods.
(g) All fees collected by the Secretary of State under this section shall be deposited into the State Treasury as general revenues.
History
Acts 1993, No. 137, § 4; 2017, No. 728, § 2.
4-99-105. Filing information.
Each registration filing pursuant to this chapter shall contain the following information:
(1) The name or names of the seller, including the name under which the seller is doing or intends to do business, if different from the name of the seller, and the name of any parent or affiliated organization that will engage in business transactions with purchasers relating to sales solicited by the seller, or that accepts responsibility for statements made by, or acts of, the seller relating to sales solicited by the seller;
(2) The seller's business form and place of organization and, if the seller is a corporation, a copy of its articles of incorporation and bylaws and amendments thereto, or, if a partnership, a copy of the partnership agreement, or, if operating under a fictitious business name, the location where the fictitious name has been registered. All the same information shall be included for any parent or affiliated organization disclosed pursuant to subdivision (1) of this section;
(3)
(A) The complete street address or addresses of all locations, designating the principal location from which the telephonic seller will be conducting business.
(B) If the principal business location of the seller is not in this state, then the seller shall also designate which of any locations within this state is its main location in the state;
(4) A listing of all telephone numbers to be used by the seller and the address where each telephone using each of these telephone numbers is located;
(5) The name of, and the office held by, the seller's officers, directors, trustees, general and limited partners, sole proprietor, and owners, as the case may be, and the names of those persons who have management responsibilities in connection with the seller's business activities;
(6) The complete address of the principal residence, the date of birth, and the Social Security number of each of the persons whose names are disclosed pursuant to subdivision (5) of this section;
(7) A list of the names and principal residence addresses of salespersons who solicit on behalf of the telephonic seller and the names the salespersons use while soliciting;
(8) A description of the items the seller is offering for sale and a copy of all sales scripts the telephonic seller requires salespersons to use when soliciting prospective purchasers or, if no sales script is required to be used, a statement to that effect;
(9) A copy of all sales information and literature, including, but not limited to, scripts, outlines, instructions, and information regarding how to conduct telephonic sales, sample introductions, sample closings, product information, and contest or premium award information provided by the telephonic seller to salespersons, or of which the seller informs salespersons, and a copy of all written materials the seller sends to any prospective or actual purchaser;
(10) If the telephonic seller represents or implies, or directs salespersons to represent or imply, to purchasers that the purchaser will receive certain specific items, including a certificate of any type which the purchaser must redeem to obtain the item described in the certificate, or one (1) or more items from among designated items, whether the items are denominated as gifts, premiums, bonuses, prizes, awards, or otherwise, the filing shall include the following:
(A) A list of the items offered;
(B) The value or worth of each item described to prospective purchasers and the basis for the valuation;
(C) The price paid by the telephonic seller to its supplier for each of these items and the name, address, and telephone number of each item's supplier;
(D) If the purchaser is to receive fewer than all of the items described by the seller, the filing shall include the following:
(i) The manner in which the telephonic seller decides which item or items a particular prospective purchaser is to receive;
(ii) The odds a single prospective purchaser has of receiving each described item; and
(iii) The name and address of each recipient who has, during the preceding twelve (12) months, or if the seller has not been in business that long, during the period the telephonic seller has been in business, received the item having the greatest value and the item with the smallest odds of being received; and
(E) All state rules, federal rules or regulations, terms, and conditions a prospective purchaser must meet in order to receive the item; and
(11) The name and address of the telephonic seller's agent in this state, other than the Secretary of State, authorized to receive service of process in this state.
History
Acts 1993, No. 137, § 6; 2017, No. 728, § 3; 2019, No. 315, § 140.
4-99-106. Exemption information — Requirements.
(a) A person claiming an exemption from registration as provided by this chapter shall keep full and accurate records in a form that will enable the person to provide to the Secretary of State or the Attorney General upon request the information required to substantiate an exemption under this chapter.
(b) The information provided under this section shall be verified by a declaration signed under penalty of perjury by each principal of the person claiming exemption.
History
Acts 1993, No. 137, § 5; 2017, No. 728, § 4.
4-99-107. Bond requirement — Promotions — Notice prior to inception.
(a)
(1) A telephonic seller shall maintain a bond issued by a surety company authorized to do business in this state.
(2) The bond shall be in the amount of fifty thousand dollars ($50,000) in favor of the State of Arkansas for the benefit of a person suffering injury or loss by reason of a violation of this chapter, to be paid under the terms of any order of a court of competent jurisdiction obtained by the Attorney General or prosecuting attorney as a result of a violation of this chapter.
(3) A copy of the bond shall be filed with the Secretary of State.
(b)
(1) At least ten (10) days before the inception of a promotion offering a premium with an actual market value or advertised value of five hundred dollars ($500) or more, the telephonic seller shall notify the Secretary of State in writing of the details of the promotion, describing the premium, its current market value, the value at which it is advertised or held out to the consumer, the date the premium shall be awarded, and the conditions under which the award shall be made.
(2)
(A)
(i) The telephonic seller shall maintain an additional bond for the total current market value or advertised value, whichever is greater, of the premiums held out or advertised to be available to a purchaser or recipient.
(ii) A copy of the bond shall be filed with the Secretary of State.
(B) The bond or portion thereof necessary to cover the cost of the award shall be forfeited if the premium is not awarded to a bona fide customer within thirty (30) days of the date disclosed as the time of award or other time required by law.
(C) A person suffering injury or loss by reason of any violation of this chapter shall be paid the proceeds of the bond, or shall be paid under the terms of any order of a court of competent jurisdiction obtained by the Attorney General or prosecuting attorney as a result of any violation of this chapter.
(D) The bond shall be maintained until the seller files with the Secretary of State proof that the premium was awarded.
History
Acts 1993, No. 137, § 13; 2017, No. 728, § 5.
4-99-108. Information to be provided each prospective purchaser.
(a) If the telephonic seller represents or implies that a prospective purchaser will receive, without charge therefor, certain specific items, or one (1) item from among designated items, whether the items are denominated as gifts, premiums, bonuses, prizes, awards, or otherwise, the seller shall provide, at the time the solicitation is made and prior to consummation of any sales transaction, the following:
(1) The manner in which the telephonic seller decides which item or items a particular prospective purchaser is to receive;
(2) The odds a single prospective purchaser has of receiving each described item;
(3) All state rules, federal rules or regulations, terms, and conditions a prospective purchaser must meet in order to receive the item;
(4) The complete street address of the location from which the salesperson is calling the prospective purchaser and, if different, the complete street address of the telephonic seller's principal location; and
(5) The total number of individuals who have actually received from the telephonic seller, during the preceding twelve (12) months or, if the seller has not been in business that long, during the period the seller has been in business, the item having the greatest value and the item with the smallest odds of being received.
(b) No seller shall make or authorize the making of any reference to its compliance with this chapter to any prospective or actual purchaser.
(c)
(1) A person making or transmitting a telephone solicitation shall not display or cause to be displayed a fictitious or misleading name or telephone number on an Arkansas resident's telephone caller identification service.
(2) Subdivision (c)(1) of this section does not apply to the transmission of a caller identification service by a telecommunications provider that complies with § 23-17-122.
History
Acts 1993, No. 137, §§ 7, 9; 2003, No. 1465, § 4; 2019, No. 315, § 141; 2019, No. 677, § 4.
4-99-109. Irrevocable consent appointing Secretary of State to act as seller's attorney to receive service — Conditions of effective service.
(a) A telephonic seller shall file with the Secretary of State, in the form prescribed by the Secretary of State, an irrevocable consent appointing the Secretary of State to act as the seller's attorney to receive service of any lawful process in any noncriminal suit, action, or proceeding against the seller or the seller's successor, executor, or administrator, that may arise under this chapter, when the agent designated in the seller's registration filing cannot with reasonable diligence be found at the address designated or if no agent has been designated pursuant thereto.
(b) When service is made upon the Secretary of State in conformance with this section, it has the same force and validity as if served personally on the seller.
(c) Service may be made by leaving a copy of the process with the Secretary of State, but service is not effective until both of the following are done:
(1) When service is effected under this section, the plaintiff shall forthwith send by certified first class mail, return receipt requested, a notice of the service and a copy of the process to the defendant or respondent at the last address on file with the Secretary of State; and
(2) The plaintiff's affidavit of compliance with this section shall be filed in the case on or before the return date of the process, if any, or within such further time as the court allows.
History
Acts 1993, No. 137, § 8; 2017, No. 728, § 6.
4-99-110. Soliciting prospective purchasers on behalf of unregistered telephonic seller prohibited — Violation.
(a)
(1) A salesperson shall not solicit prospective purchasers on behalf of a telephonic seller who is not currently registered with the Secretary of State under this chapter.
(2) A salesperson who violates this section shall be guilty of a Class A misdemeanor.
(b) Except as provided in subdivision (a)(1) of this section, any person, including without limitation the seller, a salesperson, agent or representative of the seller, or an independent contractor, who willfully violates a provision of this chapter or who directly or indirectly employs a device, scheme, or artifice to deceive in connection with the offer or sale by a telephonic seller, or who willfully, directly or indirectly, engages in any act, practice, or course of business that operates or would operate as fraud or deceit upon a person in connection with a sale by a telephonic seller shall be, upon conviction, guilty of a Class D felony.
(c)
(1) A person who controls a seller liable under this section, or a salesperson liable under subdivision (a)(1) of this section, every partner, officer, or director of such a seller or salesperson, a person occupying a similar status or performing a similar function, and an employee of such a seller or salesperson who materially aids in the sale or attempted sale are also liable jointly and severally with and to the same extent as the seller or salesperson, unless the nonseller or nonsalesperson who is so liable sustains the burden of proof that he or she did not know and in the exercise of reasonable care could not have known of the existence of the facts by reason of which the liability is alleged to exist.
(2) There is contribution as in cases of contract among the several persons so liable.
History
Acts 1993, No. 137, §§ 10, 11; 2017, No. 728, § 7.
4-99-111. Remedies provided for violation of provisions of this chapter not exclusive — Rights of Attorney General.
(a) The provisions of this chapter are not exclusive. The remedies specified in this chapter for violation of any section of this chapter or for conduct proscribed by any section of this chapter shall be in addition to any other procedures or remedies for any violation or conduct provided for in any other law.
(b) Violation of any of the provisions of this chapter shall constitute an unfair or deceptive act or practice as defined by the Deceptive Trade Practices Act, § 4-88-101 et seq. All remedies, penalties, and authority granted to the Attorney General under the Deceptive Trade Practices Act, § 4-88-101 et seq., shall be available to the Attorney General for the enforcement of this chapter.
History
Acts 1993, No. 137, § 12.
4-99-112. Burden of proving an exemption or exception.
In any civil proceeding alleging a violation of this chapter, the burden of proving an exemption or an exception from a definition is upon the person claiming it, and in any criminal proceeding alleging a violation of this chapter, the burden of producing evidence to support a defense based upon an exemption or an exception from a definition is upon the person claiming it.
History
Acts 1993, No. 137, § 2.
4-99-201. Caller identification — Information offered — Penalty for violation.
(a)
(1) Any person who on behalf of any charity, business, or organization calls a residential phone number for the purpose of soliciting or requesting a contribution or to offer goods or services shall immediately disclose to the person contacted:
(A) The caller's identity and the identity of the person or organization on whose behalf the telephone call is being made; and
(B) The purpose of the telephone call, including a brief description of the goods or services to be offered.
(2) If the person receiving the telephone call indicates that he or she does not want to hear about the charity, goods, or services, the caller shall not attempt to provide additional information during that conversation about the charity, goods, or services.
(b) A violation of this section shall be a Class A misdemeanor.
(c)
(1) A violation of the provisions of this section shall constitute an unfair and deceptive act or practice as defined by the Deceptive Trade Practices Act, § 4-88-101 et seq.
(2) All remedies, penalties, and authority granted to the Attorney General under the Deceptive Trade Practices Act, § 4-88-101 et seq., shall be available to the Attorney General for the enforcement of this section.
(3)
(A) No person under subdivision (a)(1) of this section shall display or cause to be displayed a fictitious or misleading name or telephone number on an Arkansas resident's telephone caller identification service.
(B) For purposes of this section, “caller identification service” means a service offered by a telecommunications provider that provides caller identification information to a device capable of displaying the information.
(d) Nothing in this section limits the rights or remedies which are otherwise available to a consumer under any other law.
(e) The obligations under this section are cumulative and should in no way be deemed to limit the obligations imposed under any other law.
History
Acts 1997, No. 1157, § 1; 2003, No. 1465, § 5.
4-99-202. Collection practices.
(a)
(1) No person who calls a residential telephone number for the purpose of offering merchandise for sale shall dispatch a courier or other individual to the residence to collect payment before the consumer has inspected the merchandise.
(2) It shall be unlawful for any person who calls a residential telephone number for the purpose of offering a prize to a consumer to dispatch a courier or other individual to the consumer's home for the purpose of collecting any fees or costs of any kind from the consumer.
(b) A violation of this section shall be a Class A misdemeanor.
(c)
(1) A violation of the provisions of this section shall constitute an unfair and deceptive act or practice as defined by the Deceptive Trade Practices Act, § 4-88-101 et seq.
(2) All remedies, penalties, and authority granted to the Attorney General under the Deceptive Trade Practices Act, § 4-88-101 et seq., shall be available to the Attorney General for the enforcement of this section.
(d) Nothing in this section limits the rights or remedies which are otherwise available to the consumer under any other law.
(e) The obligations under this section are cumulative and should in no way be deemed to limit the obligations imposed under any other law.
History
Acts 1999, No. 566, § 1.
4-99-203. Consumer's express written authorization required.
(a)
(1) For the purposes of this section, “telemarketer” means any person who initiates telephone calls to, or who receives telephone calls from, a consumer in connection with a plan, program, or campaign to market goods and services.
(2) The term “telemarketer” does not include a federally insured depository institution or its subsidiary when it obtains or submits for payment a check, draft, or other form of negotiable instrument drawn on or debited against a person's checking, savings, share, or other depository account at that institution.
(b)
(1) It shall be unlawful for any telemarketer as defined in subsection (a) of this section to obtain or submit for payment a check, draft, or other form of negotiable instrument drawn on a person's checking, savings, share, or other depository account without the consumer's express written authorization.
(2) For the purpose of this section, a check bearing the valid signature of the consumer shall constitute the consumer's express written authorization.
(c)
(1) A violation of the provisions of this section shall constitute an unfair and deceptive act or practice as defined by the Deceptive Trade Practices Act, § 4-88-101 et seq.
(2) All remedies, penalties, and authority granted to the Attorney General under the Deceptive Trade Practices Act, § 4-88-101 et seq., shall be available to the Attorney General for the enforcement of this section.
(d) Nothing in this section limits the rights or remedies which are otherwise available to a consumer under any other law.
(e) The obligations under this section are cumulative and should in no way be deemed to limit the obligations under any other law.
History
Acts 1999, No. 1512, § 1.
4-99-301. Definitions.
For the purpose of this subchapter:
(1) “Caller identification service” means a service offered by a telecommunications utility that provides caller identification information to a device capable of displaying the information;
(2) “Charitable organization” means any charitable organization as that term is defined by § 4-28-401(1);
(3) “Consumer” means any person to whom has been assigned in the State of Arkansas any telephone line and corresponding telephone number;
(4) “Per call blocking” means a telecommunications service that prevents the transmission of caller identification information to a called party on an individual call if the calling party acts affirmatively to prevent the transmission of the caller identification information;
(5) “Per line blocking” means a telecommunications service that prevents the transmission of caller identification to a called party on every call unless the calling party acts affirmatively to release the caller identification information;
(6) “Person” means any individual, group, unincorporated association, limited or general partnership, limited liability corporation, corporation, professional fund raiser, charitable organization, or other business entity; and
(7) “Telephone solicitation” means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of or investment in property, goods, or services or the initiation of a telephone call or message for the purpose of encouraging a charitable contribution by or on behalf of any charitable organization, which telephone call or message is transmitted to any consumer.
History
Acts 1999, No. 1361, § 1.
4-99-302. Prohibition.
(a) It is a violation of this subchapter for any person to make or transmit a telephone solicitation while using any method, including, but not limited to, per call blocking or per line blocking, that prevents caller identification information for the telephone solicitor's lines used to make telephone calls to a consumer from being shown by a device capable of displaying caller identification information.
(b)
(1) It is a violation of this subchapter for a person making or transmitting a telephone solicitation by any method to display or cause to be displayed a fictitious or misleading name or telephone number on an Arkansas resident's telephone caller identification service.
(2) Subdivision (b)(1) of this section does not apply to the transmission of a caller identification service by a telecommunications provider that complies with § 23-17-122.
History
Acts 1999, No. 1361, § 1; 2003, No. 1465, § 6; 2019, No. 677, § 5.
4-99-303. Penalties — Remedies — Enforcement.
(a) When a person violates this subchapter or a rule prescribed under this subchapter, the violation shall constitute an unfair or deceptive act or practice as defined in § 4-88-101 et seq. pertaining to deceptive trade practices.
(b)
(1) All remedies, penalties, and authority granted to the Attorney General under § 4-88-101 et seq. shall be available to the Attorney General for enforcement of this subchapter.
(2) The remedies and penalties provided by this section are cumulative to each other and the remedies or penalties available under all other laws of this state.
History
Acts 1999, No. 1361, § 1; 2019, No. 315, § 142.
4-99-401. Short title.
This subchapter shall be known as the “Arkansas Consumer Telephone Privacy Act”.
History
Acts 1999, No. 1465, § 1.
4-99-402. Legislative findings and intent.
(a) The General Assembly finds that:
(1) The use of the telephone to market goods and services to the home and to other businesses is now pervasive due to the increased use of cost-effective telemarketing techniques;
(2) Unrestricted telemarketing, however, can be an intrusive invasion of privacy;
(3) Many consumers are outraged over the proliferation of intrusive nuisance calls to their homes from telemarketers;
(4) In addition, the proliferation of unsolicited telemarketing calls, especially during the evening hours, creates a disturbance upon the home and family life of Arkansas consumers during a time of day used by many families for traditional family activities;
(5) In addition, some consumers maintain telephone service primarily for emergency medical situations, and unrestricted telemarketing calls to these consumers may create a health and safety risk for these consumers;
(6) Individuals' privacy rights, public safety interests, and commercial freedom of speech and trade must be balanced in a way that protects the privacy of individuals and permits legitimate telemarketing practices; and
(7)
(A)
(i) Many consumers enjoy and benefit from unsolicited telemarketing contacts from legitimate telemarketers.
(ii) However, other consumers object to these contacts as an invasion of an individual's right of privacy and have expressed an intention to refuse to respond to such telemarketing contacts.
(B) Thus, even legitimate telemarketers have no further legitimate interest in continuing to invade the privacy of those consumers who have affirmatively expressed their objections to such contact and, in fact, legitimate telemarketers can make their telemarketing efforts even more cost-effective by avoiding calling those consumers who have affirmatively expressed an objection to any such contact.
(b) The General Assembly intends that this subchapter protect the privacy of Arkansas consumers who have affirmatively expressed an objection to unsolicited telephone solicitations, and the General Assembly intends that this subchapter be liberally construed to effectuate that goal.
History
Acts 1999, No. 1465, § 2.
4-99-403. Definitions.
As used in this subchapter, unless the context requires otherwise:
(1) The term “affiliates” means a person or persons wholly owned and operated by a parent entity, which parent entity claims a prior or existing business relationship with a consumer or a parent company whose wholly owned subsidiary claims a prior existing business relationship with the consumer;
(2)
(A) The term “charitable organization” means:
(i) Any person who is or holds himself out to be established for any benevolent, educational, philanthropic, humane, scientific, patriotic, social welfare or advocacy, public health, environmental conservation, civic, or other eleemosynary purpose or for the benefit of law enforcement personnel, firefighters, or other persons who protect the public safety; or
(ii) Any person who in any manner employs a charitable appeal as the basis of any solicitation or an appeal which has a tendency to suggest there is a charitable purpose to any such solicitation.
(B) However, it does not include those charitable organizations that are not required to register with the Attorney General's office pursuant to those statutes governing the solicitation of charitable contributions;
(3) The term “consumer” means any person to whom has been assigned in the State of Arkansas any residential telephone line and corresponding telephone number;
(4) The term “person” means any individual, group, unincorporated association, limited or general partnership, limited liability corporation, corporation, professional fund raiser, charitable organization, or other business entity;
(5)
(A) The term “prior or existing business relationship” means a relationship in which some financial transaction has transpired between the consumer and the telephone solicitor or its affiliates within the thirty-six (36) months immediately preceding the contemplated telephone solicitation.
(B) The term does not include the situation wherein the consumer has merely been subject to a telephone solicitation by or at the behest of the telephone solicitor within the thirty-six (36) months immediately preceding the contemplated telephone solicitation; and
(6)
(A) The term “telephone solicitation” means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of or investment in property, goods, or services, or the initiation of a telephone call or message for the purpose of encouraging a charitable contribution by or on behalf of any charitable organization, which telephone call or message is transmitted to any consumer, but such term does not include a call or message to any person made with that person's prior written express invitation or permission nor a call or message to any consumer with whom the telephone solicitor has a prior or existing business relationship.
(B) Also, such term does not include a telephone call by any person to a consumer who has placed upon his or her real property a “for sale” sign which lists a telephone number and invites inquiries regarding the property.
(C) Also, such term does not include a telephone call made solely in connection with an existing debt or contractual obligation, payment or performance of which has not been completed at the time of the call.
History
Acts 1999, No. 1465, § 3.
4-99-404. Statewide database.
The Attorney General shall:
(1) Establish and thereafter operate a single statewide database composed of a list of telephone numbers of consumers who object to receiving telephone solicitations;
(2)
(A) Specify the methods by which the objections to telephone solicitations shall be collected and added to the database.
(B)
(i) Any consumer wishing to be placed in the database may notify the Attorney General and be placed in the database upon receipt by the Attorney General of an application and any initial listing charge which shall not exceed ten dollars ($10.00).
(ii) The listing shall be renewed by the Attorney General annually for each consumer upon the receipt of a renewal notice and any annual assessment not to exceed five dollars ($5.00).
(C)
(i) The database may include Arkansas consumers who have registered for the national “Do-Not-Call” registry established and maintained by the Federal Trade Commission pursuant to 16 C.F.R. § 310.4, as in effect on March 1, 2003.
(ii) The Attorney General may:
(a) Periodically obtain from the commission the information necessary to add these Arkansas consumers to the database maintained by the Attorney General; and
(b) Provide to the commission access to the state database so that those Arkansas consumers who have signed up for the state database can also be included in the national Do-Not-Call registry;
(3) Specify the methods, if any, by which the objections may be withdrawn from the database;
(4) Specify the methods by which any person desiring to make or transmit telephone solicitations may obtain access to the database as required to avoid calling the telephone numbers of the consumers included in the database;
(5) Specify the methods, if any, for recovering the costs involved in identifying, collecting, updating, and disseminating the database and for other activities related to the Attorney General's duties under this subchapter; and
(6) Specify the frequency with which the database will be updated and specify the method by which the updating will take effect for the purposes of compliance with this subchapter, allowing no fewer than ten (10) calendar days for affected persons to update their databases after the Attorney General's database has been updated.
History
Acts 1999, No. 1465, § 4; 2003, No. 1042, § 1.
4-99-405. Prohibitions.
It shall be a violation of this subchapter for any person to:
(1) Make or transmit a telephone solicitation to the telephone number of any consumer included in the then-current database maintained by the Attorney General pursuant to this subchapter;
(2) Make or transmit a telephone solicitation without having first accessed, in the manner specified by the Attorney General, the then-current database maintained by the Attorney General pursuant to this subchapter; or
(3) Make or transmit a telephone solicitation if that telephone solicitation violates the Federal Trade Commission Do-Not-Call rule set out in 16 C.F.R. § 310.4, as in effect on March 1, 2003.
History
Acts 1999, No. 1465, § 5; 2003, No. 1042, § 2.
4-99-406. Applicability of subchapter.
The provisions of this subchapter shall not apply to:
(1) Any person who is a licensee, as defined by § 17-42-103(7)(A), who is a resident of the State of Arkansas and whose telephone call to the consumer is for the sole purpose of selling, exchanging, purchasing, renting, listing for sale or rent, or leasing real estate in accordance with the provisions for which he or she was licensed and not in conjunction with any other offer;
(2) Any motor vehicle dealer, as that term is defined in § 23-112-103(19), who is a resident of the State of Arkansas, and who maintains a current motor vehicle dealer's license issued by the Arkansas Motor Vehicle Commission, whose call to the consumer is for the sole purpose of selling, offering to sell, soliciting, or advertising the sale of motor vehicles in accordance with the provisions for which they were licensed and not in conjunction with any other offer;
(3) Any agent, as that term is defined in § 23-64-102(1), who maintains a current license as an insurance agent whose call to the consumer is for the purpose of soliciting, consulting, advising, or adjusting in the business of insurance;
(4) Any broker-dealer, agent, or investment advisor registered by the Securities Commissioner pursuant to the provisions of § 23-42-301 et seq., whose telephone call to the consumer is for the purpose of effecting or attempting to effect the purchase or sale of securities or has the purpose of providing or seeking to provide investment or financial advice;
(5) Any person calling on behalf of a charitable organization as that term is defined in § 4-99-403(2), whose call to the consumer is for the sole purpose of soliciting for the charitable organization and who receives no compensation as a result of his or her solicitation activities on behalf of the charitable organization;
(6) Any person calling on behalf of a newspaper of general circulation whose call to the consumer is for the purpose of soliciting a subscription to the newspaper from the consumer or soliciting advertising from the consumer;
(7)
(A) Telephone calls made on behalf of any federally chartered or state-chartered bank if the call to the consumer relates to banking services other than credit card offers.
(B) In no event shall the telephone calls made pursuant to this subdivision (7) of this section reference any form of credit card offer; and
(8) Telephone calls made on behalf of a funeral establishment properly licensed pursuant to § 17-29-301 et seq., if the purpose of the telephone call relates to services provided by the funeral establishment in its ordinary course of business.
History
Acts 1999, No. 1465, § 6.
4-99-407. Enforcement by the Attorney General.
(a) Any violation by any person of the prohibitions set out in § 4-99-405 shall constitute an unfair or deceptive act or practice as defined by § 4-88-101 et seq. of the Deceptive Trade Practices Act.
(b) All authority granted to the Attorney General and all remedies available to the Attorney General under the Deceptive Trade Practices Act, § 4-88-101 et seq., shall be granted to and available to the Attorney General for the enforcement of this subchapter after the time period referred to in § 4-99-404(6) has been provided for affected persons to update their databases.
History
Acts 1999, No. 1465, § 7.
4-99-408. Moneys derived from listing charge.
All moneys derived from the listing charge described in § 4-99-404 shall be deposited into the State Treasury to the credit of the State Central Services Fund as a direct revenue to be used exclusively to defray the cost associated with the creation and maintenance of the database required by this subchapter and the enforcement of this subchapter.
History
Acts 1999, No. 1465, § 8.
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