ORC Ann. 4719.01
§ 4719.01. Definitions; exemptions
(A)
As used in sections 4719.01 to 4719.18 of the Revised Code:
(1)
"Affiliate" means a business entity that is owned by, operated by, controlled by, or under common
control with another business entity.
(2)
"Communication" means a written or oral notification or advertisement that meets both of the following
criteria, as applicable:
(a)
The notification or advertisement is transmitted by or on behalf of the seller of goods or services
and by or through any printed, audio, video, cinematic, telephonic, or electronic means.
(b)
In the case of a notification or advertisement other than by telephone, either of the following
conditions is met:
(i)
The notification or advertisement is followed by a telephone call from a telephone solicitor or
salesperson.
(ii)
The notification or advertisement invites a response by telephone, and, during the course of
that response, a telephone solicitor or salesperson attempts to make or makes a sale of goods or services. As
used in division (A)(2)(b)(ii) of this section, "invites a response by telephone" excludes the mere listing or
inclusion of a telephone number in a notification or advertisement.
(3)
"Gift, award, or prize" means anything of value that is offered or purportedly offered, or given or
purportedly given by chance, at no cost to the receiver and with no obligation to purchase goods or services.
As used in this division, "chance" includes a situation in which a person is guaranteed to receive an item
and, at the time of the offer or purported offer, the telephone solicitor does not identify the specific item
that the person will receive.
(4)
"Goods or services" means any real property or any tangible or intangible personal property, or
services of any kind provided or offered to a person. "Goods or services" includes, but is not limited to,
advertising; labor performed for the benefit of a person; personal property intended to be attached to or
installed in any real property, regardless of whether it is so attached or installed; timeshare estates or
licenses; and extended service contracts.
(5)
"Purchaser" means a person that is solicited to become or does become financially obligated as a result
of a telephone solicitation.
(6)
"Salesperson" means an individual who is employed, appointed, or authorized by a telephone solicitor to
make telephone solicitations but does not mean any of the following:
(a)
An individual who comes within one of the exemptions in division (B) of this section;
(b)
An individual employed, appointed, or authorized by a person who comes within one of the exemptions
in division (B) of this section;
(c)
An individual under a written contract with a person who comes within one of the exemptions in
division (B) of this section, if liability for all transactions with purchasers is assumed by the person so
exempted.
(7)
"Telephone solicitation" means a communication to a person that meets both of the following criteria:
(a)
The communication is initiated by or on behalf of a telephone solicitor or by a salesperson.
(b)
The communication either represents a price or the quality or availability of goods or services or
is used to induce the person to purchase goods or services, including, but not limited to, inducement through
the offering of a gift, award, or prize.
(8)
"Telephone solicitor" means a person that engages in telephone solicitation directly or through one or
more salespersons either from a location in this state, or from a location outside this state to persons in
this state. "Telephone solicitor" includes, but is not limited to, any such person that is an owner, operator,
officer, or director of, partner in, or other individual engaged in the management activities of, a business.
(B)
A telephone solicitor is exempt from the provisions of sections 4719.02 to 4719.18 and section 4719.99 of
the Revised Code if the telephone solicitor is any one of the following:
(1)
A person engaging in a telephone solicitation that is a one-time or infrequent transaction not done in
the course of a pattern of repeated transactions of a like nature;
(2)
A person engaged in telephone solicitation solely for religious or political purposes; a charitable
organization, fund-raising counsel, or professional solicitor in compliance with the registration and
reporting requirements of Chapter 1716. of the Revised Code; or any person or other entity exempt under
section 1716.03 of the Revised Code from filing a registration statement under section 1716.02 of the Revised
Code;
(3)
A person, making a telephone solicitation involving a home solicitation sale as defined in section
1345.21 of the Revised Code, that makes the sales presentation and completes the sale at a later, face-to-face
meeting between the seller and the purchaser rather than during the telephone solicitation. However, if the
person, following the telephone solicitation, causes another person to collect the payment of any money, this
exemption does not apply.
(4)
A licensed securities, commodities, or investment broker, dealer, investment advisor, or associated
person when making a telephone solicitation within the scope of the person's license. As used in division
(B)(4) of this section, "licensed securities, commodities, or investment broker, dealer, investment advisor,
(B)(4) of this section, "licensed securities, commodities, or investment broker, dealer, investment advisor,
or associated person" means a person subject to licensure or registration as such by the securities and
exchange commission; the National Association of Securities Dealers or other self-regulatory organization, as
defined by 15 U.S.C.A. 78c; by the division of securities under Chapter 1707. of the Revised Code; or by an
official or agency of any other state of the United States.
(5)
(a)
A person primarily engaged in soliciting the sale of a newspaper of general circulation;
(b)
As used in division (B)(5)(a) of this section, "newspaper of general circulation" includes, but is
not limited to, both of the following:
(i)
A newspaper that is a daily law journal designated as an official publisher of court calendars
pursuant to section 2701.09 of the Revised Code;
(ii)
A newspaper or publication that has at least twenty-five per cent editorial, non-advertising
content, exclusive of inserts, measured relative to total publication space, and an audited circulation to at
least fifty per cent of the households in the newspaper's retail trade zone as defined by the audit.
(6)
(a)
An issuer, or its subsidiary, that has a class of securities to which all of the following apply:
(i)
The class of securities is subject to section 12 of the "Securities Exchange Act of 1934," 15
U.S.C.A. 78l, and is registered or is exempt from registration under 15 U.S.C.A. 78l(g)(2)(A), (B), (C), (E),
(F), (G), or (H);
(ii)
The class of securities is listed on the New York stock exchange, the American stock exchange,
or the NASDAQ national market system;
(iii)
The class of securities is a reported security as defined in 17 C.F.R. 240.11Aa3-1(a)(4).
(b)
An issuer, or its subsidiary, that formerly had a class of securities that met the criteria set
forth in division (B)(6)(a) of this section if the issuer, or its subsidiary, has a net worth in excess of one
hundred million dollars, files or its parent files with the securities and exchange commission an S.E.C. form
10-K, and has continued in substantially the same business since it had a class of securities that met the
criteria in division (B)(6)(a) of this section. As used in division (B)(6)(b) of this section, "issuer" and
"subsidiary" include the successor to an issuer or subsidiary.
(7)
A person soliciting a transaction regulated by the commodity futures trading commission, if the person
is registered or temporarily registered for that activity with the commission under 7 U.S.C.A. 1 et. seq. and
the registration or temporary registration has not expired or been suspended or revoked;
(8)
A person soliciting the sale of any book, record, audio tape, compact disc, or video, if the person
allows the purchaser to review the merchandise for at least seven days and provides a full refund within
thirty days to a purchaser who returns the merchandise or if the person solicits the sale on behalf of a
membership club operating in compliance with regulations adopted by the federal trade commission in 16 C.F.R.
425;
(9)
A supervised financial institution or its subsidiary. As used in division (B)(9) of this section,
"supervised financial institution" means a bank, trust company, savings and loan association, savings bank,
credit union, industrial loan company, consumer finance lender, commercial finance lender, or institution
described in section 2(c)(2)(F) of the "Bank Holding Company Act of 1956," 12 U.S.C.A. 1841(c)(2)(F), as
amended, supervised by an official or agency of the United States, this state, or any other state of the
United States; or a licensee or registrant under sections 1321.01 to 1321.19, 1321.51 to 1321.60, or 1321.71
to 1321.83 of the Revised Code.
(10)
(a)
An insurance company, association, or other organization that is licensed or authorized to conduct
business in this state by the superintendent of insurance pursuant to Title XXXIX of the Revised Code or
Chapter 1751. of the Revised Code, when soliciting within the scope of its license or authorization.
(b)
A licensed insurance broker, agent, or solicitor when soliciting within the scope of the person's
license. As used in division (B)(10)(b) of this section, "licensed insurance broker, agent, or solicitor"
means any person licensed as an insurance broker, agent, or solicitor by the superintendent of insurance
pursuant to Title XXXIX of the Revised Code.
(11)
A person soliciting the sale of services provided by a cable television system operating under
authority of a governmental franchise or permit;
(12)
A person soliciting a business-to-business sale under which any of the following conditions are met:
(a)
The telephone solicitor has been operating continuously for at least three years under the same
business name under which it solicits purchasers, and at least fifty-one per cent of its gross dollar volume
of sales consists of repeat sales to existing customers to whom it has made sales under the same business
name.
(b)
The purchaser business intends to resell the goods purchased.
(c)
The purchaser business intends to use the goods or services purchased in a recycling, reuse,
manufacturing, or remanufacturing process.
(d)
The telephone solicitor is a publisher of a periodical or of magazines distributed as controlled
circulation publications as defined in division (CC) of section 5739.01 of the Revised Code and is soliciting
sales of advertising, subscriptions, reprints, lists, information databases, conference participation or
sponsorships, trade shows or media products related to the periodical or magazine, or other publishing
services provided by the controlled circulation publication.
(13)
A person that, not less often than once each year, publishes and delivers to potential purchasers a
catalog that complies with both of the following:
(a)
It includes all of the following:
(i)
The business address of the seller;
(ii)
A written description or illustration of each good or service offered for sale;
(iii)
A clear and conspicuous disclosure of the sale price of each good or service; shipping,
handling, and other charges; and return policy;
(b)
One of the following applies:
(i)
The catalog includes at least twenty-four pages of written material and illustrations, is
distributed in more than one state, and has an annual postage-paid mail circulation of not less than two
hundred fifty thousand households;
(ii)
The catalog includes at least ten pages of written material or an equivalent amount of material
in electronic form on the internet or an on-line computer service, the person does not solicit customers by
telephone but solely receives telephone calls made in response to the catalog, and during the calls the person
takes orders but does not engage in further solicitation of the purchaser. As used in division (B)(13)(b)(ii)
of this section, "further solicitation" does not include providing the purchaser with information about, or
attempting to sell, any other item in the catalog that prompted the purchaser's call or in a substantially
similar catalog issued by the seller.
(14)
A political subdivision or instrumentality of the United States, this state, or any state of the
United States;
(15)
A college or university or any other public or private institution of higher education in this state;
(16)
A public utility as defined in section 4905.02 of the Revised Code or a retail natural gas supplier as
defined in section 4929.01 of the Revised Code, if the utility or supplier is subject to regulation by the
public utilities commission, or the affiliate of the utility or supplier;
(17)
A person that solicits sales through a television program or advertisement that is presented in the
same market area no fewer than twenty days per month or offers for sale no fewer than ten distinct items of
goods or services; and offers to the purchaser an unconditional right to return any good or service purchased
within a period of at least seven days and to receive a full refund within thirty days after the purchaser
returns the good or cancels the service;
(18)
(a)
A person that, for at least one year, has been operating a retail business under the same name as
that used in connection with telephone solicitation and both of the following occur on a continuing basis:
(i)
The person either displays goods and offers them for retail sale at the person's business
premises or offers services for sale and provides them at the person's business premises.
(ii)
At least fifty-one per cent of the person's gross dollar volume of retail sales involves
purchases of goods or services at the person's business premises.
(b)
An affiliate of a person that meets the requirements in division (B)(18)(a) of this section if the
affiliate meets all of the following requirements:
(i)
The affiliate has operated a retail business for a period of less than one year;
(ii)
The affiliate either displays goods and offers them for retail sale at the affiliate's business
premises or offers services for sale and provides them at the affiliate's business premises;
(iii)
At least fifty-one per cent of the affiliate's gross dollar volume of retail sales involves
purchases of goods or services at the affiliate's business premises.
(c)
A person that, for a period of less than one year, has been operating a retail business in this
state under the same name as that used in connection with telephone solicitation, as long as all of the
following requirements are met:
(i)
The person either displays goods and offers them for retail sale at the person's business
premises or offers services for sale and provides them at the person's business premises;
(ii)
The goods or services that are the subject of telephone solicitation are sold at the person's
business premises, and at least sixty-five per cent of the person's gross dollar volume of retail sales
involves purchases of goods or services at the person's business premises;
(iii)
The person conducts all telephone solicitation activities according to sections 310.3, 310.4,
and 310.5 of the telemarketing sales rule adopted by the federal trade commission in 16 C.F.R. part 310.
(19)
A person who performs telephone solicitation sales services on behalf of other persons and to whom one
of the following applies:
(a)
The person has operated under the same ownership, control, and business name for at least five
years, and the person receives at least seventy-five per cent of its gross revenues from written telephone
solicitation contracts with persons who come within one of the exemptions in division (B) of this section.
(b)
The person is an affiliate of one or more exempt persons and makes telephone solicitations on behalf
of only the exempt persons of which it is an affiliate.
(c)
The person makes telephone solicitations on behalf of only exempt persons, the person and each
exempt person on whose behalf telephone solicitations are made have entered into a written contract that
specifies the manner in which the telephone solicitations are to be conducted and that at a minimum requires
compliance with the telemarketing sales rule adopted by the federal trade commission in 16 C.F.R. part 310,
and the person conducts the telephone solicitations in the manner specified in the written contract.
(d)
The person performs telephone solicitation for religious or political purposes, a charitable
organization, a fund-raising council, or a professional solicitor in compliance with the registration and
reporting requirements of Chapter 1716. of the Revised Code; and meets all of the following requirements:
(i)
The person has operated under the same ownership, control, and business name for at least five
years, and the person receives at least fifty-one per cent of its gross revenues from written telephone
solicitation contracts with persons who come within the exemption in division (B)(2) of this section;
(ii)
The person does not conduct a prize promotion or offer the sale of an investment opportunity;
and
(iii)
The person conducts all telephone solicitation activities according to sections 310.3, 310.4,
and 310.5 of the telemarketing sales rules adopted by the federal trade commission in 16 C.F.R. part 310.
(20)
A person that is a licensed real estate salesperson or broker under Chapter 4735. of the Revised Code
when soliciting within the scope of the person's license;
(21)
(a)
Either of the following:
(i)
A publisher that solicits the sale of the publisher's periodical or magazine of general, paid
circulation, or a person that solicits a sale of that nature on behalf of a publisher under a written
agreement directly between the publisher and the person.
(ii)
A publisher that solicits the sale of the publisher's periodical or magazine of general, paid
circulation, or a person that solicits a sale of that nature as authorized by a publisher under a written
agreement directly with a publisher's clearinghouse provided the person is a resident of Ohio for more than
three years and initiates all telephone solicitations from Ohio and the person conducts the solicitation and
sale in compliance with 16 C.F.R. Part 310, as adopted by the federal trade commission.
(b)
As used in division (B)(21) of this section, "periodical or magazine of general, paid circulation"
excludes a periodical or magazine circulated only as part of a membership package or given as a free gift or
prize from the publisher or person.
(22)
A person that solicits the sale of food, as defined in section 3715.01 of the Revised Code, or the
sale of products of horticulture, as defined in section 5739.01 of the Revised Code, if the person does not
intend the solicitation to result in, or the solicitation actually does not result in, a sale that costs the
purchaser an amount greater than five hundred dollars.
(23)
A funeral director licensed pursuant to Chapter 4717. of the Revised Code when soliciting within the
scope of that license, if both of the following apply:
(a)
The solicitation and sale are conducted in compliance with 16 C.F.R. part 453, as adopted by the
federal trade commission, and with sections 1107.33 and 1345.21 to 1345.28 of the Revised Code;
(b)
The person provides to the purchaser of any preneed funeral contract a notice that clearly and
conspicuously sets forth the cancellation rights specified in division (G) of section 1107.33 of the Revised
Code, and retains a copy of the notice signed by the purchaser.
(24)
A person, or affiliate thereof, licensed to sell or issue Ohio instruments designated as travelers
checks pursuant to sections 1315.01 to 1315.11 of the Revised Code.
(25)
A person that solicits sales from its previous purchasers and meets all of the following requirements:
(a)
The solicitation is made under the same business name that was previously used to sell goods or
services to the purchaser;
(b)
The person has, for a period of not less than three years, operated a business under the same
business name as that used in connection with telephone solicitation;
(c)
The person does not conduct a prize promotion or offer the sale of an investment opportunity;
(d)
The person conducts all telephone solicitation activities according to sections 310.3, 310.4, and
310.5 of the telemarketing sales rules adopted by the federal trade commission in 16 C.F.R. part 310;
(e)
Neither the person nor any of its principals has been convicted of, pleaded guilty to, or has
entered a plea of no contest for a felony or a theft offense as defined in sections 2901.02 and 2913.01 of the
Revised Code or similar law of another state or of the United States;
(f)
Neither the person nor any of its principals has had entered against them an injunction or a final
judgment or order, including an agreed judgment or order, an assurance of voluntary compliance, or any similar
instrument, in any civil or administrative action involving engaging in a pattern of corrupt practices, fraud,
theft, embezzlement, fraudulent conversion, or misappropriation of property; the use of any untrue, deceptive,
or misleading representation; or the use of any unfair, unlawful, deceptive, or unconscionable trade act or
practice.
(26)
An institution defined as a home health agency in section 3701.881 [3701.88.1] of the Revised Code,
that conducts all telephone solicitation activities according to sections 310.3, 310.4, and 310.5 of the
telemarketing sales rules adopted by the federal trade commission in 16 C.F.R. part 310, and engages in
telephone solicitation only within the scope of the institution's certification, accreditation, contract with
the department of aging, or status as a home health agency; and that meets one of the following requirements:
(a)
The institution is certified as a provider of home health services under Title XVIII of the Social
Security Act, 49 Stat. 620, 42 U.S.C. 301, as amended;
(b)
The institution is accredited by either the joint commission on accreditation of health care
organizations or the community health accreditation program;
(c)
The institution is providing passport services under the direction of the Ohio department of aging
under section 173.40 of the Revised Code;
(d)
An affiliate of an institution that meets the requirements of division (B)(26)(a), (b), or (c) of
this section when offering for sale substantially the same goods and services as those that are offered by the
institution that meets the requirements of division (B)(26)(a), (b), or (c) of this section.
(27)
A person licensed to provide a hospice care program by the department of health pursuant to section
3712.04 of the Revised Code when conducting telephone solicitations within the scope of the person's license
and according to sections 310.3, 310.4, and 310.5 of the telemarketing sales rules adopted by the federal
trade commission in 16 C.F.R. part 310.
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