[As Amended by House Committee of the
Whole]
As Amended by House Committee
Session of 2000
HOUSE BILL No. 2891
By Representatives Johnston, Aday,
Adkins, Alldritt, Ballard, Barnes,
Beggs,
Campbell, Cox, Crow, Dean, Faber, Farmer, Feuerborn, Fin-
dley,
Flaharty, Flora, Flower, Freeborn, Garner, Gatewood, Gilbert,
Grant,
Hayzlett, Helgerson, Henderson, Henry, Hermes, Horst, Huff,
Hutchins,
Jenkins, Kirk, Klein, Kuether, Larkin, M. Long, P. Long,
Mayans,
Mays, McClure, McCreary, McKechnie, McKinney, Merrick,
Minor,
Mollenkamp, Jim Morrison, Judy Morrison, Myers, Nichols,
O'Brien,
O'Neal, Osborne, Pauls, E. Peterson, J. Peterson, Phelps,
Pottorff,
Powell, Powers, Ray, Reardon, Rehorn, Reinhardt, Ruff,
Schwartz,
Sharp, Showalter, Shriver, Spangler, Stone, Storm, Swen-
son,
Tanner, Tedder, Thimesch, Toelkes, Tomlinson, Toplikar, Vick-
rey,
Vining, Wagle, Weiland, Wells and Welshimer
2-8
23 AN ACT
concerning unsolicited consumer certain
unsolicited tele-
24 phone calls;
prohibiting certain acts and providing remedies for vio-
25 lations; amending
K.S.A. 1999 Supp. 50-670 and repealing the existing
26 section.
27
28 Be it enacted by the Legislature of the
State of Kansas:
29 Section
1. K.S.A. 1999 Supp. 50-670 is hereby amended to read as
30 follows: 50-670. (a) As used in this
section and section 2 and amendments
31 thereto:
32 (1) ``Consumer
telephone call'' means a call made by a telephone
33 solicitor to the residence
of a consumer for the purpose of soliciting a
34 sale of any property or services to the
person called, or for the purpose
35 of soliciting an extension of credit for
property or services to the person
36 called, or for the purpose of obtaining
information that will or may be
37 used for the direct solicitation of a sale
of property or services to the
38 person called or an extension of credit for
such purposes;.
39 (2) ``Unsolicited
consumer telephone call'' means a consumer tele-
40 phone call other than a call made:
41 (A) In response
to an express request of the person called;
42 (B) primarily in
connection with an existing debt or contract, payment
43 or performance of which has not been
completed at the time of such call;
2
1 or
2 (C) to any
person with whom the telephone solicitor or the telephone
3 solicitor's predecessor in interest
had an existing business relationship a
4 business relationship within the
preceding 36 months if the solicitor
5 is not an employee, a contract
employee or an independent contractor of
6 a provider of telecommunications
services; or
7
(D) by a newspaper publisher or such publisher's agent
or employee
8 in connection with such
publisher's business;.
9
(3) ``Telephone solicitor'' means any natural person, firm,
organiza-
10 tion, partnership, association or
corporation who makes or causes to be
11 made a consumer telephone call, including,
but not limited to, calls made
12 by use of automatic dialing-announcing
device;.
13 (4) ``Automatic
dialing-announcing device'' means any user terminal
14 equipment which:
15 (A) When
connected to a telephone line can dial, with or without
16 manual assistance, telephone numbers which
have been stored or pro-
17 grammed in the device or are produced or
selected by a random or se-
18 quential number generator;
or.
19 (B) When
connected to a telephone line can disseminate a recorded
20 message to the telephone number called,
either with or without manual
21 assistance;.
22 (5) ``Negative
response'' means a statement from a consumer indi-
23 cating the consumer does not wish to listen
to the sales presentation or
24 participate in the solicitation presented
in the consumer telephone call.
25
(6) ``Commission'' means the state corporation
commission.
26 (6) ``Local exchange
carrier,'' ``telecommunications carrier''
27 and ``telecommunications service'' have
the meanings provided in
28 K.S.A. 66-1,187, and amendments
thereto.
29
(7) ``Qualified trade association'' means an organization
that
30 has:
31 (A) Written
bylaws, or other governing documents, that in-
32 clude a code of conduct for the
organization's members; and
33 (B) criteria
and procedures for expelling or suspending mem-
34 bers who violate the association's
bylaws or other governing
35 documents.
36
(8) ``Consumer'' means any person, as defined in K.S.A.
50-624,
37 and amendments thereto.
38 (b) Any telephone
solicitor who makes an unsolicited consumer tel-
39 ephone call to a residential
telephone number shall:
40 (1) Identify
themselves;
41 (2) identify the
business on whose behalf such person is soliciting;
42 (3) identify the
purpose of the call immediately upon making contact
43 by telephone with the person who is the
object of the telephone
3
1 solicitation;
2 (4)
promptly discontinue the solicitation if the person being
solicited
3 gives a negative response at any time
during the consumer telephone call;
4 and
5 (5) hang up
the phone, or in the case of an automatic dialing-an-
6 nouncing device operator, disconnect
the automatic dialing-announcing
7 device from the telephone line within
25 seconds of the termination of
8 the call by the person being
called.
9 (c) A
telephone solicitor shall not withhold the display of the tele-
10 phone solicitor's telephone number from a
caller identification service
11 when that number is being used for
telemarketing purposes and when
12 the telephone solicitor's service or
equipment is capable of allowing the
13 display of such number.
14 (d) A telephone
solicitor shall not transmit any written information
15 by facsimile machine or computer to a
consumer after the consumer
16 requests orally or in writing that such
transmissions cease.
17 (e) A telephone
solicitor shall not obtain by use of any professional
18 delivery, courier or other pickup service
receipt or possession of a con-
19 sumer's payment unless the goods are
delivered with the opportunity to
20 inspect before any payment is
collected.
21 (f) No
telephone solicitor shall make or cause to be made any
unso-
22 licited consumer telephone call to
the residence of any consumer in this
23 state who has given notice to the
commission attorney general, in ac-
24 cordance with rules and regulations adopted
under section 2 and amend-
25 ments thereto, of the consumer's objection
to receiving unsolicited con-
26 sumer telephone calls.
27 (f)
(g) Local exchange carriers and telecommunications
carriers shall
28 not be responsible for the enforcement of
the provisions of this section.
29 (g)
(h) Any violation of this section is an unconscionable
act or prac-
30 tice under the Kansas consumer protection
act.
31 (i) It
shall be a defense in any action or proceeding brought
under
32 this section that the defendant
has established and implemented, with due
33 care, reasonable practices and
procedures to effectively prevent unsoli-
34 cited consumer telephone calls
in violation of this section.
35 (h)
(j) (i) This section shall be
part of and supplemental to the Kansas
36 consumer protection act.
37 New Sec.
2. (a) The commission attorney general
shall establish
38 and provide for the operation of a data
base to compile a list of telephone
39 numbers of consumers who object to
receiving unsolicited consumer tel-
40 ephone calls. It shall be the duty of the
commission attorney general
41 to have such data base in operation no
later than July 1, 2001. Such data
42 base may be operated by the
commission attorney general or by
another
43 entity under contract with the
commission attorney general.
4
1 (b) No
later than July 1, 2001, the commission
attorney general
2 shall adopt rules and regulations
that:
3 (1) Require
each local exchange company to inform its
residential
4 carrier, each telecommunications
carrier and each wireless tele-
5 communications service provider to
inform its subscribers that a con-
6 sumer has the opportunity to give
notice to the commission attorney
7 general or its contractor that
the consumer objects to receiving unsoli-
8 cited consumer telephone calls;
9 (2) specify
one or more methods by which a consumer may give no-
10 tice to the commission or
its attorney general or the attorney gen-
11 eral's contractor of the consumer's
objection to receiving unsolicited con-
12 sumer telephone calls and one or more
methods by which a consumer
13 may revoke that notice;
14 (3) specify the
time period for which a notice of objection shall be
15 effective and the effect of a change of
telephone number on such notice;
16 (4) specify the
methods by which objections and revocations shall be
17 collected and added to the data base;
18 (5) specify one
or more methods by which a telephone solicitor can
19 obtain access to the data base as required
to avoid calling the telephone
20 numbers of consumers included in the data
base; and
21 (6) specify such
other matters relating to the data base that the
com-
22 mission attorney
general deems desirable.
23 (c) If the
federal communications commission establishes a single na-
24 tional data base of telephone numbers of
subscribers who object to re-
25 ceiving telephone solicitations, the
commission attorney general shall
26 include the part of such single national
data base that relates to Kansas
27 in the data base established under this
section.
28 (d) A
residential subscriber shall pay the commission attorney
general
29 a fee of $5 for each notice for
inclusion in the data base established under
30 this section. A telephone
solicitor shall pay the commission a fee of
$10
31 per year or qualified
trade association shall pay the attorney gen-
32 eral a fee for access to or for
paper or electronic copies of the data base
33 established under this section. Such fee
shall be prescribed by rules
34 and regulations adopted by the attorney
general in accordance
35 with K.S.A. 45-219, and amendments
thereto. A qualified trade
36 association may make information
obtained pursuant to this sec-
37 tion available to the association's
members on any terms the as-
38 sociation and its members may impose,
but use of such information
39 shall be subject to the restrictions
imposed by subsection (e).
40 (e) Information
contained in the data base established under this sec-
41 tion shall be used only for the purpose of
compliance with this section or
42 in a proceeding or action under K.S.A.
50-670, and amendments thereto.
43 Such information shall not be subject to
public inspection or disclosure
5
1 under the open records act.
2 (f) All enforcement
provisions of the Kansas consumer pro-
3 tection act shall be deemed to
apply to violations of K.S.A. 50-670,
4 and amendments thereto, involving
a person not included in the
5 definition of ``consumer'' under
K.S.A. 50-624, and amendments
6 thereto, to the same extent as if
the person were a consumer as
7 defined in K.S.A. 50-624, and
amendments thereto.
8 Sec.
3. K.S.A. 1999 Supp. 50-670 is hereby repealed.
9 Sec. 4. This act
shall take effect and be in force from and after its
10 publication in the statute book.