10 M.R.S. § 1499-B
§ 1499-B. Telephone solicitation
1.
DEFINITIONS. As used in
this section, unless the context otherwise indicates, the following terms have
the following meanings.
A.
"Consumer" means a resident of this
State who is a residential
telephone subscriber and an actual or
prospective:
1)
Purchaser, lessee or
recipient of consumer goods or services;
or
2)
Donor or contributor
to an organization.
B.
"Consumer goods or services" means:
1)
Tangible or intangible
personal property or real property that
is normally used for
personal, family or household purposes;
2)
Property intended to
be attached to or installed on real
property without regard
to whether it is actually attached or
installed;
3)
Services related to
the property described in subparagraph (1)
or (2);
4)
Credit cards or the
extension of credit; or
5)
Professional services.
C.
"Division" means the Department of
the Attorney General, Consumer
Protection Division.
D.
"Doing business in Maine" means making telephone sales
calls to
consumers located in this State whether the
telephone sales calls
originate in the State or outside the State.
D-1.
"Established
business relationship" means a prior or existing
relationship formed by a voluntary 2-way
communication between a
telephone solicitor and a consumer with or
without an exchange of
consideration on the basis of the consumer's
purchase from or
transaction with the telephone solicitor within
the 18 months
immediately preceding the date of a telephone
sales call or on the
basis of the consumer's inquiry or application
regarding products or
services offered by the telephone solicitor
within the 3 months
immediately preceding the date of the call that
has not been
previously terminated by the consumer pursuant to
subparagraph (1) or
by the telephone solicitor.
1)
A consumer's request
to a particular telephone solicitor not
to receive telephone
sales calls from that telephone solicitor
terminates an established
business relationship for purposes of a
telephone sales call even
if the consumer continues to do
business with the
telephone solicitor.
2)
The consumer's
established business relationship with a
particular telephone
solicitor does not extend to affiliates of
the telephone solicitor
unless the consumer would reasonably
expect them to be
included given the nature and type of goods or
services offered by the
affiliate and the identity of the
affiliate.
E.
"Registry" means the do-not-call
registry maintained by the
division that lists the names of persons who do
not wish to receive
telephone sales calls.
F.
"Resident" means a resident of this
State.
G.
"Telephone number" means a
residential telephone number.
H.
"Telephone sales call" means a
solicitation call made to a
consumer for:
1)
Solicitation of a sale
of consumer goods or services; or
2)
Obtaining information
that will or may be used for the direct
solicitation of a sale of
consumer goods or services or an
extension of credit for
such purposes.
"Telephone sales call" includes a call
made by use of automated
dialing or recorded message devices.
I.
"Telephone solicitor" means an
individual, firm, organization,
partnership, association or corporation,
including affiliates and
subsidiaries, doing business in Maine.
2.
APPLICATION. This section does not apply to:
A.
A telephone sales call made in response to and
at the express
request of the person called;
B.
A telephone sales call made primarily in
connection with an
existing debt or contract for which payment or
performance has not
been completed at the time of the call;
C.
A telephone sales call for a solicitation
other than a commercial
solicitation, but only if:
1)
The telephone call is
made by a volunteer or an employee of
the soliciting
organization; and
2)
The telephone
solicitor who makes the telephone call
immediately discloses all
of the following information:
a)
The solicitor's true first and last name; and
b)
The name, address and telephone number of the soliciting
organization;
or
D.
A telephone sales call made to any person with
whom the telephone
solicitor has an established business
relationship.
3.
COMPLIANCE WITH LAW. This section does not relieve a
person from complying with any other applicable law.
4.
DUTIES OF DIVISION. The division shall establish and
maintain a do-not-call registry of telephone numbers of consumers who request
not to be solicited by telephone. The national "do-not-call" registry
established and maintained by the Federal Trade Commission, pursuant to the 16
Code of Federal Regulations, Section 310.4(b)(1)(iii)(B), may serve as the
Maine do- not-call registry required by this subsection. The division may provide
the telephone numbers of residents that are in the state registry to the
Federal Trade Commission for inclusion in the national registry.
5.
ADOPTION OF RULES. The division may adopt rules consistent
with Title 5, section 207, subsection 2 to implement this section. Rules
adopted pursuant to this subsection are routine technical rules as defined in
Title 5, chapter 375, subchapter 2-A.
6.
TELEPHONE SOLICITATION VIOLATIONS.
It is a violation of this section for a telephone solicitor to initiate a
telephone sales call to a consumer if that consumer's telephone number has been
on the national or state do-not-call registry, established by the Federal Trade
Commission, for at least 3 months prior to the date the call is made. A
telephone solicitor is not liable for violating this section if the telephone
solicitor can demonstrate that:
A.
As part of the telephone solicitor's routine
business practice,
the telephone solicitor has established and
implemented written
procedures to comply with this section;
B.
As part of the telephone solicitor's routine
business practice,
the telephone solicitor has trained its
personnel, and any entity
assisting in its compliance, in the procedures
established pursuant
to paragraph A;
C.
As part of the telephone solicitor's routine
business practice,
the telephone solicitor or another person acting
on behalf of the
telephone solicitor has recorded and maintained a
list of telephone
numbers the telephone solicitor may not contact;
D.
As part of the telephone solicitor's routine
business practice,
the telephone solicitor uses a process to prevent
telemarketing to
any telephone number on any list established
pursuant to paragraph C
or on the national do-not-call registry,
employing a version of the
national do-not-call registry obtained from the
Federal Trade
Commission no more than 31 days prior to the date
any call is made,
and maintains records documenting this process;
E.
As part of the telephone solicitor's routine
business practice,
the telephone solicitor or another person acting
on behalf of the
telephone solicitor monitors and enforces
compliance with the
procedures established pursuant to paragraph A;
and
F.
Any subsequent call otherwise violating this
section is the result
of error.
7.
TELEPHONE SOLICITATION DISCLOSURE. A telephone solicitor
who makes a telephone sales call to a consumer must immediately disclose the
following information upon making contact with that consumer:
A.
The solicitor's real first and last name; and
B.
The name of the business on whose behalf the
telephone solicitor
is soliciting.
8.
DIRECTORIES EXEMPTION. This section does not apply to a
person obtaining consumer information for inclusion in a directory assistance
database or a telephone directory sold by a telephone company.
9.
EXCLUSION OF A TELEPHONE NUMBER. A telephone solicitor or
person who obtains consumer information that includes telephone numbers shall
exclude the telephone numbers that appear on the most current federal or state
do-not-call registry.
10.
UNFAIR TRADE PRACTICE VIOLATIONS. A telephone solicitor
who fails to comply with any provision of this section commits an unfair and
deceptive act that is a violation of the Maine Unfair Trade Practices Act.
11.
ATTORNEY GENERAL REMEDIES. In an action under this
section, the Attorney General may obtain any or all of the following:
A.
An injunction to enjoin future violations of
this section;
B.
A civil penalty of not more than:
1)
Ten thousand dollars
for the first violation; and
2)
Twenty-five thousand
dollars for each subsequent violation;
C.
All money the defendant obtained through
violation of this
section;
D.
The Attorney General's reasonable cost in:
1)
The investigation of
the deceptive act; and
2)
Maintaining the action
under this subsection; and
E.
Reasonable attorney's fees.
12.
VOIDABLE CONTRACTS. In an action under this section, the
court may void or limit the application of contracts or clauses resulting from
a violation of this section and order restitution to be paid to an aggrieved
consumer.
13.
JURISDICTION. An action under this section may be brought
in the District Court or Superior Court of the jurisdiction in which an
aggrieved consumer resides or in Kennebec
County.
