(DATCP DOCKET # 14-R-08)
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on the emergency and proposed permanent rule revising Chapter
ATCP 127, relating to direct marketing (no-call).
Hearing Information
Date: Monday, September 15, 2014
Time: 1:00 p.m. to 3:00 p.m.
Location: Board Room (1st Floor)
Department of Agriculture, Trade and
Consumer Protection
2811 Agriculture Drive
Madison, WI 53718-6777
Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by September 11, 2014, by writing to Michelle Reinen, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911; or by emailing
Michelle.Reinen@wisconsin.gov; or by telephone at (608) 224-5160. Alternatively, you may contact the DATCP TDD at (608) 224-5058. The hearing facility is handicap accessible.
Appearances at the Hearing, Copies of Proposed Rule, and Submittal of Written Comments
DATCP will hold one public hearing at the time and place shown above. DATCP invites the public to attend the hearings and comment on the proposal. Following the public hearing, the hearing record will remain open until
September 29, 2014, for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address below, or to
Michelle.Reinen@wisconsin.gov, or to
http://adminrules.wisconsin.gov.
You can obtain a free copy of the emergency rule and the hearing draft rule and related documents including the economic impact analysis by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Trade and Consumer Protection, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling (608) 224-5164 or by emailing
Michelle.Reinen@wisconsin.gov. Copies will also be available at the hearing. To view the hearing draft rule online, go to:
http://adminrules.wisconsin.gov.
Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address above, or by email to
keeley.moll@wisconsin.gov, or by telephone at (608) 224-5039.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
This rule implements s.
100.52, Stats., which directs the department of agriculture, trade and consumer protection (DATCP) to promulgate rules related to telephone solicitations and the do-not-call registry and s.
100.20, Stats., which regulates fair trade practices in business.
Statutes interpreted
Statutory authority
Explanation of statutory authority
DATCP has broad general authority, under s.
93.07 (1), Stats., to interpret laws under its jurisdiction. DATCP has authority under s.
100.20 (2), Stats., to promulgate rules forbidding trade practices which DATCP determines to be unfair, and to prescribe fair trade practices. Section
100.52, Stats., directs DATCP to establish by rule a registration system for telephone solicitors that provides DATCP with proof that the telephone solicitor has complied with federal law in obtaining the state do-not-call registry.
Related statutes and rules
Section
100.20 (1), Stats., requires trade practices in business to be fair. Unfair trade practices are prohibited. DATCP has rulemaking authority under s.
100.20 (2), Stats., to regulate unfair trade practices through administrative rules.
Section
100.52, Stats., governs telephone solicitations. It directs DATCP to establish a registration system for telephone solicitors that provides DATCP with proof that the telephone solicitor has complied with federal law in obtaining the state do-not-call registry.
Chapter
ATCP 127, Subchapter II, Telephone Solicitations, was promulgated under DATCP's authority to regulate unfair trade practices. Among other things, this subchapter requires telephone solicitors to disclose their name and prohibits them from using fictitious names or misrepresenting their identity, affiliation, location, or characteristics.
The existing Chapter
ATCP 127, Subchapter V, Telephone Solicitations; No-Call List, implements s.
100.52, Stats. This subchapter establishes mechanisms for telephone customers to enter their numbers onto the no-call list that is compiled by the state and for telephone solicitors to register with DATCP to obtain the list.
Plain language analysis
Background
Section
100.52, Stats., established the Wisconsin no call program in 2001. DATCP promulgated chapter ATCP 127, subchapter V in 2002. This law required the department to create a no-call list and prohibited telephone solicitors from calling residential customers on the list. Residential customers who did not want to receive unsolicited commercial calls provided their telephone number and zip code to DATCP every two years to remain on the non-solicitation list.
The law also required the department to enact a rule that requires solicitors to register with DATCP and pay an annual fee to obtain the no call list and to solicit residential customers located in Wisconsin.
The no call law provides exceptions to the prohibition against calls made to Wisconsin residents by an unregistered solicitor. For example, calls made to current clients, calls made to persons who have consented to receive the call, and calls made on behalf of non-profit and political organizations, may be made by solicitors who have not registered with the department.
The law also prohibits telephone solicitors from making pre-recorded telephone solicitations to either residential or business customers, and from making telephone calls to business customers who ask them in writing to not make the calls.
The law was amended in 2008 to prohibit telephone solicitors from calling cell phones on the state No Call list. The law was amended in 2012 to prohibit telephone solicitors from sending text messages to residential customers on the state no-call list.
The Federal Trade Commission (FTC) maintains a federal do-not-call registry. Under the federal do-not-call program, Wisconsin residents have been able to register their numbers on that list permanently.
The Wisconsin no call law was most recently amended by
2013 Act 234 which has eliminated the separate, DATCP-maintained Wisconsin no-call list. As of August 1, 2014, Wisconsin residents who do not want to receive unsolicited telephone calls or texts from telemarketers will now only sign up on the FTC do-not-call registry without any need to re-register, and all telephone numbers on the existing Wisconsin no-call list will be transferred to that registry. Under the new state law, telephone solicitors must register with the FTC to obtain and follow Wisconsin's portion of the federal do-not-call registry (state do-not-call registry). Solicitors must also continue to register with DATCP and DATCP will continue to administer and enforce the Wisconsin no call law.
Rule Content
GENERAL
The emergency and permanent rule does all of the following:
•
Establishes updated registration requirements for telephone solicitors.
• Repeals portions of the rule made obsolete under the statute change.
The proposed permanent rule also:
• Updates recordkeeping requirements.
• Interprets Wisconsin's consent requirement to harmonize with federal requirements.
• Makes other minor updates and changes including corrections to mistaken citations.
REGISTRATION REQUIREMENTS
The emergency rule and proposed permanent rule updates registration requirements for telephone solicitors. This rule requires telephone solicitors to provide DATCP with proof of registration with the FTC and the ability to obtain updated do-not-call registry information. The federal Subscription Account Number (SAN) will serve as proof of registration.
OBSOLETE RULE PROVISIONS
The emergency rule and proposed permanent rule repeals sections of the existing rule that became obsolete as a result of the statutory change. Sections of the rule that are repealed include those requiring consumers to register for the no-call list with DATCP and DATCP to provide the no-call list to telephone solicitors on a quarterly basis.
RECORDKEEPING REQUIREMENTS
The proposed permanent rule extends recordkeeping requirements from two to three years and adds requirements for telephone solicitors to keep records of the numbers called and proof of consent from consumers on the state do-not-call registry to receive calls or texts. These changes will make the rule more consistent with the statute of limitations and enhance investigations of complaints and enforcement of violations of the rule. These requirements are not included in the emergency rule.
CONSENT REQUIREMENT
The FTC requires express written consent for telephone solicitors to “robocall" (or “robotext") numbers registered on the federal do-not-call registry. The proposed permanent rule harmonizes Wisconsin's rule with the federal standard. These requirements are not included in the emergency rule.
OTHER CHANGES
The proposed rule makes other minor clarifying and corrective changes to the rule. These changes are not included in the emergency rule.
Summary of and comparison with existing or proposed federal statutes and regulations
Federal programs
The Federal Trade Commission (FTC) and Federal Communications Commission (FCC) administer the Telephone Consumer Protection Act (TCPA). This act established the national do-not-call registry. Residential customers can permanently register their telephone numbers on the federal do-not-call registry.
Surrounding state programs
Many states have do-not-call programs. Several states maintain their own do-not-call list. Others, including Illinois, Michigan, and Minnesota, have laws allowing for state enforcement of do-not-call provisions, but rely on the FTC's consumer do-not-call registry rather than maintaining their own. Iowa encourages its residents to sign up on the federal do-not-call registry.
Summary of factual data and analytical methodologies
To develop this rule, DATCP reviewed federal and state laws related to telephone solicitations, data related to telephone solicitor registration, past enforcement actions, and consumer complaints.
Analysis and supporting documents used to determine effect on small business
The effect on small business was determined by reviewing estimates of costs to comply with the law.
Effect on Small Business
This rule will, generally, have minimal impact on business. This rule might affect the following businesses in the following ways (many of these businesses are “small businesses"):
Telephone solicitors that are currently registered with DATCP but not with the FTC.
Under s.
100.52, Stats., and this rule, telephone solicitors will be required to register with DATCP and also with the FTC. Most telephone solicitors have been registered with both DATCP and the FTC and will not be impacted by this requirement. The few solicitors who have only registered with DATCP will incur an additional registration fee with the FTC. The first five area codes in a national do-no-call registry subscription are free, so this annual access fee would be $59 for the 6
th Wisconsin area code.
Offsetting this added fee, telephone solicitors will no longer be required to pay the following fees:
•
$25 for each additional email address to receive a compact disc containing the no-call list.
•
$25 for each mailing address to receive a compact disc containing the no-call list.
•
$1,000 for each mailing address to receive the no-call list in a hard-copy printed form.
Recordkeeping requirements
Currently, persons making telephone solicitations, regardless of whether they may be required to register under the Wisconsin no call law, are required under ch.
ATCP 127, subchapter II, to keep certain records necessary to enforce the general direct marketing rules. The recordkeeping requirements in this proposed rule may increase the number of records businesses keep and store, which may have some financial cost associated with it.
These requirements and potential costs are not part of the emergency rule.
This rule and DATCP's administrative efforts related to the rule benefit large and small businesses alike. For example:
•
DATCP publishes a fact-sheet for solicitors, clearly explaining the requirements and prohibitions contained in the rule.
•
DATCP administers and enforces violations of the rule which ensures a level playing field for all businesses.
Many of the businesses affected by this rule are “small businesses." However, given the subject matter, there are very few accommodations or special exceptions that can be made for small businesses.
Contact Person
Initial Regulatory Flexibility Analysis
Rule Subject: Direct Marketing; Telephone Solicitations; No-Call List
Adm. Code Reference: ATCP 127
DATCP Docket #: 14-R-08
Rule summary
This rule interprets the no-call law administered by the Department of Agriculture, Trade and Consumer Protection (“DATCP"). Among other things, this rule does all of the following:
•
Establishes updated registration requirements for telephone solicitors.
•
Repeals portions of the rule made obsolete under the statute change.
•
Updates recordkeeping requirements.
•
Interprets Wisconsin's consent requirement to harmonize with federal requirements.
•
Makes other minor updates and changes including corrections to mistaken citations.
Registration requirements
This rule updates registration requirements for telephone solicitors. This rule requires telephone solicitors to provide DATCP with proof of registration with the FTC and the ability to obtain updated do-not-call registry information. The federal Subscription Account Number (SAN) will serve as proof of registration.
