DATCP Docket No. 14-R-08 Final Rule
Rules Clearinghouse No. 14-050 April 20, 2015
ORDER OF THE WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
The Wisconsin department of agriculture, trade and consumer protection adopts the following rule to repeal ATCP 127.81 (3) (c), (d), (e) and (Note); to amend ATCP 127, subchapter V (Title), ATCP 127.80 (10) (a) 1., 127.80 (10) (c), 127.83 (2) (b), 127.83 (2) (c), and 127.83 (4); to repeal and recreate ATCP 127.80 (5), 127.81 (2) (j), 127.82 and 127.84; to create ATCP 127.80 (6r) and 127.83 (2) (b) (Note); relating to telephone solicitations and the state do-not-call registry.
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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
Statutes Interpreted: 100.20 (1) and 100.52, Stats.
Statutory Authority
Statutory Authority: ss. 93.07 (1), 100.20 (2), 100.52(3), and 100.52(8) Stats.
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 were 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
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 “robocall” (or “robotext”) 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.
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
