A.C.A. § 4-99-103
§ 4-99-103. Definitions
As used in this chapter, the following terms have the following meanings:
(1)
"Caller identification service" means a service offered by a telecommunications provider that provides
caller identification information to a device capable of displaying the information;
(2)
"Consumer Protection Division" shall mean the Consumer Protection Division of the Office of the
Attorney General;
(3)
"Item" means any goods and services, and includes coupon books which are to be used with businesses
other than the seller's business;
(4)
"Owner" means a person who owns or controls ten percent (10%) or more of the equity of, or otherwise
has claim to ten percent (10%) or more of the net income of, a telephonic seller;
(5)
"Person" includes an individual, firm, association, corporation, partnership, joint venture, or any
other business entity;
(6)
"Principal" means an owner, an executive officer of a corporation, a general partner of a partnership,
a sole proprietor of a sole proprietorship, a trustee of a trust, or any other individual with similar
supervisory functions with respect to any person;
(7)
"Purchaser" or "prospective purchaser" means a person who is solicited to become or does become
obligated to a telephonic seller;
(8)
"Salesperson" means any individual employed, appointed, or authorized by a telephonic seller, whether
referred to by the telephonic seller as an agent, representative, or independent contractor, who attempts to
solicit or solicits a sale on behalf of the telephonic seller. The principals of a seller are themselves
salespersons if they solicit sales on behalf of the telephonic seller; and
(9)
"Telephonic seller" or "seller" means a person who on his or her own behalf or through salespersons
causes a telephone solicitation or attempted telephone solicitation to occur which meets the criteria
specified in subdivisions (9)(A) or (B) of this section, and who is not exempted by subdivision (9)(C) of this
section, as follows:
(A)
A telephone solicitation or attempted telephone solicitation wherein the telephonic seller initiates
telephonic contact with a prospective purchaser and represents or implies one (1) or more of the following:
(i)
That a prospective purchaser who buys one (1) or more items will also receive additional or other
items, whether or not of the same type as purchased, without further cost. For purposes of this subdivision
(9)
(A)(i), "further cost" does not include actual postage or common carrier delivery charges, if any;
(A)(i), "further cost" does not include actual postage or common carrier delivery charges, if any;
(A)(i), "further cost" does not include actual postage or common carrier delivery charges, if any;
(ii)
That a prospective purchaser will receive a prize or gift, if the person also encourages the
prospective purchaser to do either of the following:
(a)
Purchase or rent any goods or services; or
(b)
Pay any money, including, but not limited to, a delivery or handling charge;
(iii)
That a prospective purchaser is able to obtain any item or service at a price which the seller
states or implies is below the regular price of the item or service offered. This subdivision (9)(A)(iii)
shall not apply to retailers who within the previous twelve (12) months have sold a majority of their goods or
services through in-person sales at retail stores;
(iv)
That the seller is a person other than the person he or she is;
(v)
That the items for sale are manufactured or supplied by a person other than the actual
manufacturer or supplier;
(B)
(i)
A solicitation or attempted solicitation, which is made by telephone in response to inquiries
generated by unrequested notifications sent by the seller to persons who have not previously purchased goods
or services from the seller or who have not previously requested credit from the seller, to a prospective
purchaser wherein the seller represents or implies to the recipient of the notification that any of the
following applies to the recipient:
(a)
That the recipient has in any manner been specially selected to receive the notification or
the offer contained in the notification;
(b)
That the recipient will receive a prize, gift, or award if the recipient calls the seller; or
(c)
That, if the recipient buys one (1) or more items from the seller, the recipient will also
receive additional or other items, whether or not of the same type as purchased, without further cost or at a
cost which the seller states or implies is less than the regular price of such items.
(ii)
This subdivision (9)(B) does not apply to the solicitation of sales by a catalogue seller who
periodically issues and delivers catalogues to potential purchasers by mail or by other means. This exception
only applies if the catalogue includes a written description or illustration and the sales price of each item
or merchandise offered for sale includes at least twenty-four (24) full pages of written material or
illustrations, is distributed in more than one (1) state, and has an annual circulation of no fewer than two
hundred fifty thousand (250,000) customers;
(C)
For purposes of this chapter, "telephonic seller" or "seller" does not include any of the following:
(i)
A person offering or selling a security, and who is registered pursuant to § 23-42-301 et seq.;
(ii)
A person offering or selling insurance, and who is licensed pursuant to § 23-64-201 et seq.;
(iii)
A person primarily soliciting the sale of a newspaper of general circulation, a magazine, or
membership in a book or record club whose program operates in conformity with § 4-89-101 et seq. and §
4-95-101 et seq.;
(iv)
A person soliciting business from prospective purchasers who have previously purchased from the
business enterprise for which the person is calling;
(v)
(a)
A person soliciting without the intent to complete, and who does not complete, the sales
presentation during the telephone solicitation but completes the sales presentation at a later face-to-face
meeting between the solicitor and the prospective purchaser.
(b)
However, if a seller, directly following a telephone solicitation, causes an individual whose
primary purpose it is to go to the prospective purchaser to collect the payment or deliver any item purchased,
this exemption does not apply;
(vi)
Any supervised financial institution or parent, subsidiary, or affiliate thereof. As used in
this subdivision (9)(C)(vi), "supervised financial institution" means any commercial bank, trust company,
savings and loan association, credit union, industrial loan company, personal property broker, consumer
finance lender, commercial finance lender, or insurer, provided that the institution is subject to the
supervision of an official or agency of this state or of the United States;
(vii)
Any burial association operating pursuant to the authority of § 23-78-101 et seq.;
(viii)
A person or an affiliate of a person whose business is regulated by the Arkansas Public
Service Commission;
(ix)
An issuer or a subsidiary of an issuer that has a class of securities which is subject to, and
which is either registered or exempt from registration to, § 23-42-401 et seq.;
(x)
A person soliciting a transaction regulated by the Commodity Futures Trading Commission if the
person is registered or temporarily licensed for this activity with the Commodity Futures Trading Commission
under the Commodity Exchange Act, 7 U.S.C. § 1 et seq., and the registration or license has not expired or
been suspended or revoked; or
(xi)
A person soliciting a transaction directed to a purchaser holding a permit pursuant to the
Arkansas Gross Receipts Act, § 26-52-101 et seq., and in which the solicitation deals with goods of a type
that are subject to resale by the purchaser.
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