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 Sections of the rule that are repealed include those requiring consumers to register for the no-call list with DATCP and DATCP to provide the no-call list to telephone solicitors on a quarterly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.
Obsolete rule provisions
This 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 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.
Consent requirement
The FTC requires express written consent for telephone solicitors to call or text numbers registered on the federal do-not-call registry. The proposed rule harmonizes Wisconsin's rule with the federal standard.
Other changes
The proposed rule makes other minor clarifying and corrective changes to the rule.
Small business affected
This rule affects businesses in the following ways:
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 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.
Accommodation for Small Business
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.
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.
Conclusion
This rule will have minimal impact affected businesses, including “small businesses." Negative effects , if any, will be few and limited. This rule will not have a significant adverse effect on “small business," and is not subject to the delayed “small business" effective date provided in s.
227.22 (2) (e), Stats.
ADMINISTRATIVE RULES
FISCAL ESTIMATE
AND ECONOMIC IMPACT ANALYSIS
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Type of Estimate and Analysis
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X Original ⍽ Updated ⍽ Corrected
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Administrative Rule Chapter, Title and Number
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Ch. ATCP 127, Direct Marketing
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Subject
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Telephone Solicitations; No-Call List
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Fund Sources Affected
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Chapter 20, Stats. Appropriations Affected
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⍽ GPR ⍽ FED X PRO ⍽ PRS ⍽ SEG ⍽ SEG-S
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20.115 (8) (jm)
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Fiscal Effect of Implementing the Rule
|
⍽ No Fiscal Effect
⍽ Indeterminate
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⍽ Increase Existing Revenues
X Decrease Existing Revenues
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⍽ Increase Costs
⍽ Could Absorb Within Agency's Budget
⍽ Decrease Costs
|
The Rule Will Impact the Following (Check All That Apply)
|
⍽ State's Economy
⍽ Local Government Units
|
X Specific Businesses/Sectors
⍽ Public Utility Rate Payers
|
Would Implementation and Compliance Costs Be Greater Than $20 million?
⍽ Yes
X No
|
Policy Problem Addressed by the Rule
|
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 requires the department to enact a rule that requires solicitors to register with DATCP and pay an annual or quarterly 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 texting 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 reapply, 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 and obtain and follow the Wisconsin 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. ATCP 127 must be updated to reflect the recent statutory changes and to make other minor changes.
This rule revision 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.
|
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
|
This rule updates current rules related to direct marketing and telephone solicitations. This rule modifies and clarifies existing rule language to facilitate consistency, understanding, compliance, and efficiency with other state and federal regulations.
Local Governments
This rule will not impact local governments. Local governments will not have any implementation or compliance costs.
|
Telephone Solicitors
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 6th 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.
Currently, persons making telephone solicitations, regardless of whether they may be required to register under the Wisconsin No Call law, are required under 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.
|
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
|
Benefits
This rule will benefit telephone solicitors and the general public.
Telephone Solicitors
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.
General Public
The general public will benefit from this rule. The changes to the do-not-call program will enable consumers to sign-up on the national do-no-call registry permanently, rather than having to renew their registration every two years. In addition, the rule specifies what constitutes consumer consent to receive calls if a number is on the state do-not-call registry. The rule also creates recordkeeping requirements for businesses that will enable the department to investigate complaints about do-not-call registry violations more easily.
Alternatives
This rule is designed to harmonize the existing rule with recent changes to s. 100.52, stats. DATCP is required, by statute, to establish registration requirements for telephone solicitors by rule. In addition, changes being proposed to clarify and correct existing regulations should be adopted or outdated and incorrect rule language will remain.
Provisions being established to create standards for written consent and recordkeeping requirements will better protect consumers and aid in the investigation of complaints. The department could not adopt those proposed rules, which would result in continued consumer frustration related to receiving unwanted telephone calls. In addition, the department would continue its current enforcement procedures to obtain telephone solicitor records, which can be time consuming and difficult.
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Long Range Implications of Implementing the Rule
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Implementing the rule will increase consumer satisfaction with the do-not-call registry as it will allow consumers to register their phone numbers permanently, rather than having to renew registration every two years. The rule will also enhance DATCP's ability to investigate complaints and enforce the law.
|
Compare With Approaches Being Used by Federal Government
|
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.
|
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
|
Many states have do-not-call programs. Several states, like Wisconsin, 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 registry rather than maintaining their own. Iowa encourages its residents to sign up on the federal do-not-call registry.
Comments Received in Response to Web Posting and DATCP Response
No comments were received in response either to the posting on the DATCP external website or the statewide administrative rules website.
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Notice of Hearings
Safety and Professional Services
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Safety and Professional Services in sections 101.862 (5) and 227.11 (2) (a) of the Wisconsin Statutes, and interpreting sections
101.82 (1r) and
101.862 (3) and
(5) of the Statutes, the Department will hold a public hearing at the time and place shown below to consider an order to amend section
SPS 305.40 (2) (b),
(3) (b),
(4) (a) 1.,
(b),
(c), and
(d) 1., and
(5), and to create sections
SPS Table 305.02 Row 24r, Table 305.06 Row 19r, 305.40 (1) (bm), and 305.437, relating to registration of electricians who are exempt from passing an examination and from acquiring continuing-education credits. As provided in s.
227.24 (4) of the Statutes, this hearing will also be for emergency rules that identically address this chapter SPS 305 criteria.
