Section 407.1070

Title XXVI TRADE AND COMMERCE

Chapter 407

Effective - 28 Aug 2000   

  407.1070.  Definitions. — As used in sections 407.1070 to 407.1085, the following terms shall mean:

  (1)  "Advertisement", as defined in section 407.010;

  (2)  "Caller identification service", a type of telephone service which permits telephone subscribers to see the telephone number of incoming telephone calls;

  (3)  "Consumer", a natural person who purchases, may purchase or is solicited for purchase of merchandise or an investment opportunity by a telemarketer through telemarketing;

  (4)  "Established business relationship", a prior or existing relationship formed by a voluntary two-way communication between a seller or telemarketer and a consumer with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the consumer regarding products or services offered by such seller or telemarketer, which relationship has not been previously terminated by either party;

  (5)  "Fictitious name", any name, other than the legal name, used by a seller or telemarketer;

  (6)  "Investment opportunity", anything tangible or intangible that is offered for sale, sold or traded based wholly or in part on representations, either express or implied, about past, present or future income, profit or appreciation;

  (7)  "Material aspect or element", any factor likely to significantly influence the consumer's choice of, or conduct regarding, merchandise;

  (8)  "Merchandise", any objects, wares, goods, commodities, intangibles, real estate or services; except that merchandise shall not include any services, goods or memberships given to a contributor by an entity, organized pursuant to Chapter 501 (c)(3) of the United States Internal Revenue Code, while such entity is engaged in fund-raising to support the charitable purpose for which the entity was established provided that a bona fide member of such exempt organization makes the voice communication;

  (9)  "Prize", anything offered or purportedly offered or given or purportedly given to a consumer by chance.  For purposes of this definition, chance exists if a consumer is guaranteed to receive anything of value and, at the time of the offer or purported offer, the telemarketer does not identify the specific item that the consumer will receive;

  (10)  "Promptly", at the beginning of any call initiated by a telemarketer to a consumer;

  (11)  "Seller", any person who, in connection with a telemarketing transaction, provides, offers to provide, or arranges for others to provide merchandise to the consumer in exchange for consideration;

  (12)  "Telemarketer", any person, or any recorded, computer-generated, electronically generated or other voice communication of any kind, who, in connection with telemarketing, initiates or receives telephone calls to or from a consumer.  A telemarketer includes, but is not limited to, any such person that is an owner, operator, officer, director or partner to the management activities of a business;

  (13)  "Telemarketing", a plan, program or campaign which is conducted to induce the purchase or lease of merchandise by use of one or more telephones and which involves more than one telephone call.

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(L. 2000 S.B. 763)