DATCP must compile a “no-call" list containing the telephone numbers and ZIP codes of residential telephone customers who sign up for the list. No person may make a telephone solicitation, either directly or through an employee or agent, to a residential customer whose telephone number appears on the current no-call list.
A residential telephone customer may contact DATCP by phone, or at DATCP's website, to sign up for the “no-call" list. A customer's caregiver may sign up on behalf of the customer. The customer or caregiver shall give DATCP all the following information:
•
The customer's telephone number including area code.
•
The customer's ZIP code.
•
The customer's name and address, if requested by DATCP. DATCP will not include this information on the “no-call" list, but may request it for verification purposes.
•
The caregiver's name and address, if a caregiver contacts DATCP on behalf of the customer. DATCP will not include this information on the “no-call" list, but requires it for verification purposes.
Distributing the List
DATCP must distribute the “no-call" list to each telemarketer who is currently registered with DATCP. DATCP must distribute the list in the manner specified by the registrant (assuming that the registrant pays the required fees for that method of delivery). A “no-call" list takes effect on a date specified by DATCP, not sooner than 10 days after DATCP distributes the list.
Updating the List
DATCP must compile and distribute an updated “no-call" list every 3 months. DATCP must distribute updated lists in the same manner as the initial list. DATCP must delete a residential telephone customer from the “no-call" list 2 years after that customer last signed up for inclusion on the list. A customer may renew a sign-up at any time.
No Unauthorized Release
A registered telemarketer may not redistribute any part of a “no-call" list to any other person, except that the registrant may redistribute the list to an individual making telephone solicitations as the registrant's employee or agent. DATCP may not release a “no-call" list, or any information used to compile the list, except that:
•
DATCP may release a “no-call" list to telemarketers currently registered with DATCP.
•
DATCP may release a “no-call" list as necessary to enforce this rule, or to comply with a subpoena or judicial process, subject to such protective orders as may be appropriate.
•
DATCP may release the “no-call" list to the federal trade commission or other federal agency maintaining a national “no-call" list.
Telephone solicitation practices
Telemarketers must comply with current DATCP telemarketing rules under ch.
ATCP 127, Wis. Adm. Code. In addition, this rule prohibits telemarketers from doing any of the following:
•
Making telephone solicitations to a residential telephone customer, unless the telemarketer is registered with DATCP or working for a registered telemarketer.
•
Making a telephone solicitation to a residential telephone customer whose telephone number appears on the current “no call" list.
•
Using an electronically prerecorded message in a telephone solicitation to a residential or nonresidential telephone customer without the prior consent of that telephone customer.
•
Failing to disclose, at the request of a residential telephone customer receiving a telephone solicitation, the telemarketer's Wisconsin registration number.
•
Making a telephone solicitation to a nonresidential telephone customer (business) if that business has notified the telelemarketer by mail that the business does not wish to receive telephone solicitations. A telemarketer must provide a business with the telemarketer's mailing address within 10 days after the business requests it.
•
Requiring, instructing or authorizing an employee or agent to make a telephone solicitation in violation of this rule, or facilitating a violation of this rule.
•
Using caller-ID blocking when making a telephone solicitation.
Telemarketer Records
Under current DATCP telemarketing rules, telemarketers must keep certain records for at least 2 years and must make those records available to DATCP upon request. Among other things, a telemarketer must keep records related to individuals who make telephone solicitations as employees or agents of the telemarketer, including names, addresses, telephone numbers, job titles, and fictitious names if any (no 2 individuals may use the same fictitious name).
This rule requires telemarketers to comply with current record keeping requirements, and adds one new requirement. Under this rule, a telemarketer must record the time period during which an individual made telephone solicitations as the seller's employee or agent.
Fiscal Estimate
This rule creates a telemarketing “no-call" program, as directed by the Legislature. DATCP is adding this rule to DATCP's current telemarketing rules under ch.
ATCP 127, Wis. Adm. Code. The legislation, passed as part of the budget bill, creates section 100.52 of the Wisconsin Statutes which directs DATCP to develop systems to register residential customers who do not wish to be called by telemarketers and, register telemarketers who wish to solicit Wisconsin residents. It also requires DATCP to investigate and seek penalties against violators most of whom are located outside of Wisconsin.
Currently, department rules, Chapter
ATCP 127, Wis. Admin. Code, enacted in August 1999 prohibits a telemarketer from soliciting a consumer who has asked the telemarketer to place them on a "do not call" list. The rules also require a telemarketer to maintain systems for ensuring consumers on this list are not called. Under these new rules, DATCP will create a list and registered telemarketers will combine this list into their systems.
Based on experience, and the Department projects that a majority of Wisconsin households will register under this new law. Other states of equal population report nearly one million households are registered on their lists.
The Department assumes consumer registration will be made available through a toll-free telephone system as well as on-line forms. Because of the magnitude of the project, the Department is preparing requests for bids from outside sources. This estimate is based on an assumption that those bids will result in costs of approximately $400,000 annually.
The Department estimates a workload of 5,000 hours annually to intake and process consumer complaints administer the contracts with the vender to create and distribute the lists. To accomplish this, the Department will require 2.5 positions.
Complaints regarding telemarketing will double to approximately 1000 per year. The Department estimates 100 complaints per year will require assignment to investigative staff for detailed investigation. Typically, these investigations will involve multiple victims and multiple jurisdictions. The Department will require 2.0 FTE investigators for enforcement activities. The Department estimates the additional annual workload to oversee and administer the program and enforce the law will also require 1.0 FTE consumer complaint supervisor.
Based on these assumptions, the department estimates there will be a one-time cost of $53,400. Ongoing annual costs of $658,600 would be offset through license fees.
The Department is authorized to set initial registration fees to generate the funding necessary to create the list and renewal fees necessary to administer this program. The Department is proposing an initial registration fee of $800 plus a supplemental fee of $100 per each phone line if a business uses more than 3 lines to telemarket. The Department proposes a renewal fee of $600 plus a supplemental fee of $100 per each phone line if a business uses more than 3 lines to telemarket.
The Department assumes 375 (62%) telemarketers to register in year one, which will generate $564,000. An additional 225 new registrations as well as renewals in year two will generate $731,000. Year three will stabilize at 600 renewals and generate $677,000. In the first two years the program will create a deficit of $21,000. In year three the registration fees should begin to generate a small surplus, and if this continues through year 4, the department will have a surplus of $17,000 which it is assumed will be consumed by inflationary pressures.
Long – Range Fiscal Implications
Registration fees paid by telemarketing firms will offset the annual cost. The Department assumes the annual renewal to generate $664,000 to offset estimated costs of $658,600. If these estimates generate a small surplus, the Department proposes to hold the surplus to offset future registration price increases.
Initial Regulatory Flexibility Analysis
Rule Description
This rule regulates “telephone solicitations" to persons located in this state, regardless of where the calls originate. This rule requires telemarketers to register annually with DATCP. Registered telemarketers will be provided a list that is compiled by DATCP containing the telephone numbers of consumers who do not want to be solicited by telephone. Telemarketers will be prohibited from soliciting by phone any consumer who is on the “no call" list.
“Telephone Solicitations" Covered
A “telephone solicitation" means an unsolicited telephone call for the purpose of encouraging the call recipient to buy property, goods or services, or that is part of a plan or scheme to encourage the call recipient to buy property, goods or services. “Telephone solicitation" does not include any of the following:
•
A telephone call encouraging the call recipient to buy property, goods or services from a “nonprofit organization" solely for the benefit of that organization.
•
A telephone call made in response to the call recipient's request for that call.
•
A telephone call made to a current client of the person selling the property, goods or services promoted by the telephone call.
•
A telephone call made to a number listed in the current local business telephone directory.
Telemarketers Must Register
Registration expires on December 31 of each year. Under this rule:
•
No person may employ or contract with any individual to make telephone solicitations to residential telephone customers unless that person is currently registered with DATCP.
•
No individual may make a telephone solicitation to a residential telephone customer unless one of the following applies:
- The individual is employed by, or acting as the contract agent of, a person currently registered with DATCP.
- The individual is currently registered with DATCP.
Telemarketer Registration Form
To register with DATCP, a person must complete an annual registration form and pay annual fees. The registration form must include all the following:
•
The registrant's correct legal name, and all trade names under which the registrant does business.
•
The registrant's principal business address and telephone number. The business address must include street address, zip code, state and nation.
•
The registrant's federal tax identification (FEIN) number.
•
The name and address of the registrant's registered agent in this state, if any.
•
The name and address of a person who will accept service of process on behalf of the registrant, if other than a registered agent in this state.
•
The name, address and telephone number of a person who may respond, on behalf of the registrant, to DATCP notices and inquiries.
•
The number of telephone lines used, by individuals acting as employees or agents of the registrant, to make telephone solicitations. The registrant must provide the telephone number associated with each of these lines.
•
The number of individuals who make telephone solicitations as employees or agents of the registrant. The registrant must provide the names of the individuals if DATCP requests those names.
•
A statement indicating the form in which the registrant wishes to receive “no-call" lists. A registrant may receive “no-call" lists in one or more of the following forms:
- By e-mail transmission to an e-mail address provided by the registrant.
- As a compact disc, mailed to an address provided by the registrant.
- In hard-copy printed form, mailed to an address provided by the registrant.
Telemarketer Registration Fees
A telemarketer registering with DATCP must pay the following annual fees:
•
A basic annual registration fee of $800 for the first year of registration, and $600 for each year thereafter.
•
A supplementary fee for each telephone line used by the registrant (or the registrant's employees or individual agents) to make telephone solicitations. The fee amount is $100 per telephone line if the registrant (and the registrant's employees and agents) use more than 3 lines.
•
A supplementary fee of $25 for each additional e-mail address to which the registrant would like DATCP to send the “no-call" list (if more than one e-mail address).
•
A supplementary fee of $25 for each additional copy of the list which the registrant would like DATCP to send in compact disc form.
•
A supplementary fee of $1,000 for each address to which the registrant would like DATCP to send the “no-call" list in hard-copy print form.
Updating the List
DATCP must compile and distribute an updated “no-call" list every 3 months. DATCP must distribute updated lists in the same manner as the initial list. DATCP must delete a residential telephone customer from the “no-call" list 2 years after that customer last signed up for inclusion on the list. A customer may renew at any time.
Small Businesses Affected by this Rule
This rule affects businesses that solicit residential consumers for the purpose of encouraging the call recipient to buy property, goods or services. The rule will effect “professional" telemarketers who solicit on behalf of others as well as businesses that solicit on their own behalf. The bureau assumes approximately 600 businesses that offer to sell a wide variety of consumer products will be required to register. Many of these businesses are “small businesses" as defined in s.
227.114 (1) (a), Stats.
Effects on Small Business
This rule will have an impact on small business. Under current law, all businesses that telemarket must keep a no call list consisting of persons who inform the business that they do not want to be called again. Under this rule the business will have to add the telephone numbers compiled by the State to their no call list. The department will provide the consumer information in a format that is readable by all computer systems. Any Wisconsin business that telemarkets into one of the more than 20 States that currently have do not call laws will already have already implemented systems to fulfill the requirements contained in this rule. Others may have a one-time cost of reprogramming their systems. This one-time cost is expected to have a slight impact on small business.
The cost of administering the program is mandated by statute to be funded through registration fees for businesses that telemarket. The fees are based on the number of lines that are used to solicit so a small business will pay less than a large telemarketer with multiple lines.
Steps to Assist Small Business
The registration fees are based on the number of lines a telemarketer uses to solicit and the first three telephone lines are included under the base fee. The rules also have exceptions for businesses calling their own customers or responding to a request by a consumer for a call. Both of these exceptions should assist small business.
Conclusion
This rule will have a minor impact on small business. Small business will have one-time costs to upgrade existing systems to accept the lists and combine them with current lists. The long term impact of not telemarketing persons who do not wish to be telemarketed are expected to be minor. This rule will have the long term cost of annual fees for registration. The department has taken reasonable steps to share the costs of the program equitably among those who are regulated.
Notice of Hearing
NOTICE IS HEREBY GIVEN that pursuant to s.
15.03, Stats., the Division of Hearings and Appeals will hold a public hearing to consider the repeal and recreation of ch.
HA 1 relating to the practice and procedure for contested cases conducted by the Division.
