Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 217 First Substitute (2022GS)

Sponsor

Rep. Thurston, N.  (Thurston’s own bill)

Final action

Governor Signed 3/24/2022

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• modifies the Telephone and Facsimile Solicitation Act definition of "telephone solicitation" to include a telephone solicitation made to encourage a person to sell real or personal property to the solicitor;
• prohibits a person from making a telephone solicitation to a cellular phone without prior consent;
• amends definitions in the Telephone Fraud Prevention Act (TFPA);
• modifies security requirements for a registered seller under the TFPA;
• specifies penalties for a seller or solicitor who violates the TFPA;
• amends the prohibited practices under the TFPA;
• modifies the types of information the Division of Consumer Protection (division) is required to redact from a consumer complaint regarding conduct the division regulates under the TFPA before making the consumer complaint public; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

TELEPHONE SOLICITATION AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Norman K. Thurston
Senate Sponsor: 
Scott D. Sandall
LONG TITLE
General Description:
This bill modifies the Telephone and Facsimile Solicitation Act and the Telephone
Fraud Prevention Act.
Highlighted Provisions:
This bill:
▸ modifies the Telephone and Facsimile Solicitation Act definition of "telephone
solicitation" to include a telephone solicitation made to encourage a person to sell
real or personal property to the solicitor;
▸ prohibits a person from making a telephone solicitation to a cellular phone without
prior consent;
▸ amends definitions in the Telephone Fraud Prevention Act (TFPA);
▸ modifies security requirements for a registered seller under the TFPA;
▸ specifies penalties for a seller or solicitor who violates the TFPA;
▸ amends the prohibited practices under the TFPA;
▸ modifies the types of information the Division of Consumer Protection (division) is
required to redact from a consumer complaint regarding conduct the division
regulates under the TFPA before making the consumer complaint public; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
13-25a-102
, as last amended by Laws of Utah 2021, Chapter 289
13-25a-103
, as last amended by Laws of Utah 2004, Chapters 90 and 263
13-26-2
, as last amended by Laws of Utah 2012, Chapter 152
13-26-3
, as last amended by Laws of Utah 2013, Chapter 124
13-26-4
, as last amended by Laws of Utah 2017, Chapter 98
13-26-5
, as last amended by Laws of Utah 1994, Chapter 189
13-26-8
, as last amended by Laws of Utah 2013, Chapter 124
13-26-11
, as last amended by Laws of Utah 2013, Chapter 124
13-26-12
, as enacted by Laws of Utah 2015, Chapter 335
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
13-25a-102
 is amended to read:
13-25a-102.
Definitions.
As used in this chapter:
(1) "Advertisement" means material offering for sale, or advertising the availability or
quality of, any property, [
goods, or services
] 
good, or service
.
(2) (a) "Automated telephone dialing system" means equipment used to:
(i) store or produce telephone numbers;
(ii) call a stored or produced number; and
(iii) connect the number called with a recorded message or artificial voice.
(b) "Automated telephone dialing system" does not include [
equipment used with a
burglar alarm system, voice messaging system, fire alarm system, or other system
] 
a system
used in an emergency involving the immediate health or safety of a person[
.
]
, including a
burglar alarm system, voice messaging system, fire alarm system, or other similar system.
(3) "Division" means the Division of Consumer Protection [
in the Department of
Commerce
].
(4) (a) "Established business relationship" means a relationship that:
(i) is based on inquiry, application, purchase, or transaction regarding products or
services offered;
(ii) is formed by a voluntary two-way communication between a person making a
telephone solicitation and a person to whom a telephone solicitation is made; and
(iii) has not been terminated by:
(A) an act by either [
party
] 
person
; or
(B) the passage of 18 months since the most recent inquiry, application, purchase,
transaction, or voluntary two-way communication.
(b) "Established business relationship" includes a relationship with an affiliate as
defined in Section 
16-10a-102
.
(5) "Facsimile machine" means equipment used for:
(a) scanning or encoding text or images for conversion into electronic signals for
transmission; or
(b) receiving electronic signals and reproducing them as a duplicate of the original text
or image.
(6) "Negative response" means a statement from a [
party
] 
person
 stating the [
party
]
person
 does not wish to listen to the sales presentation or participate in the solicitation
presented in the telephone call.
(7) "On-call emergency provider" means an individual who is required by an employer
to be on call to respond to a medical emergency.
(8) "Telephone solicitation" means the initiation of a telephone call or message for a
commercial purpose or to seek a financial donation, including calls:
(a) encouraging the purchase or rental of, or investment in, property, goods, or services,
regardless of whether the transaction involves a nonprofit organization;
(b) soliciting a sale of or extension of credit for property or services to the person
called;
(c) soliciting information that will be used for:
(i) the direct solicitation of a sale of property or services to the person called; or
(ii) an extension of credit to the person called for a sale of property or services; [
or
]
(d) soliciting a charitable donation involving the exchange of any premium, prize, gift,
ticket, subscription, or other benefit in connection with any appeal made for a charitable
purpose[
.
]
; or
(e) encouraging the person called to sell real or personal property.
(9) "Telephone solicitor" means any [
natural person
] 
individual
, firm, organization,
partnership, association, or corporation who makes or causes to be made an unsolicited
telephone call, including calls made by use of an automated telephone dialing system.
(10) "Unsolicited telephone call" means a telephone call for a commercial purpose or
to seek a financial donation other than a call made:
(a) in response to an express request of the person called;
(b) primarily in connection with an existing debt or contract, payment or performance
of which has not been completed at the time of the call;
(c) to [
any
] 
a
 person with whom the telephone solicitor has an established business
relationship; or
(d) as required by law for a medical purpose.
Section 2. Section 
13-25a-103
 is amended to read:
13-25a-103.
Prohibited conduct for telephone solicitations -- Exceptions.
(1) Except as provided in Subsection (2), a person may not operate or authorize the
operation of an automated telephone dialing system to make a telephone solicitation.
(2) A person may operate an automated telephone dialing system if a call is made:
(a) with the prior express consent of the person who is called agreeing to receive a
telephone solicitation from a specific solicitor; or
(b) to a person with whom the solicitor has an established business relationship.
(3) A person may not make a telephone solicitation to a residential telephone 
or
cellular telephone
 without prior express consent during any of the following times:
(a) [
before 8 a.m. or after 9 p.m.
] 
between the hours of 9 p.m. and 8 a.m.
 local time;
(b) on a Sunday; or
(c) on a legal holiday.
(4) A person may not make or authorize a telephone solicitation in violation of Title 47
U.S.C. 227.
(5) [
Any
] 
A
 telephone solicitor who makes an unsolicited telephone call to a telephone
number shall:
(a) identify the telephone solicitor;
(b) identify the business on whose behalf the telephone solicitor is soliciting;
(c) 
promptly
 identify the purpose of the call [
promptly
] upon making contact by
telephone with the person who is the object of the telephone solicitation;
(d) discontinue the solicitation if the person being solicited gives a negative response at
any time during the telephone call; and
(e) hang up the phone, or in the case of an automated telephone dialing system
operator, disconnect the automated telephone dialing system from the telephone line within 25
seconds of the termination of the call by the person being called.
(6) [
A
] 
If a telephone solicitor's service or equipment is capable of displaying the
telephone solicitor's telephone number through a caller identification service, the
 telephone
solicitor may not withhold the display of the telephone solicitor's telephone number from a
caller identification service when that number is being used for telemarketing purposes [
and
when the telephone solicitor's service or equipment is capable of allowing the display of the
number
].
Section 3. Section 
13-26-2
 is amended to read:
13-26-2.
Definitions.
As used in this chapter, unless the context otherwise requires:
(1) "Affiliated person" means a seller or a seller's contractor, director, employee,
officer, owner, or partner.
[
(1)
] 
(2)
 "Continuity plan" means a shipment, with the prior express consent of the
buyer, at regular intervals of similar special-interest products[
. A continuity plan is
distinguished from a subscription arrangement by no binding commitment period or purchase
amount
]
, in which there is no binding commitment period or purchase amount
.
[
(2)
] 
(3)
 "Division" means the Division of Consumer Protection.
[
(3)
] 
(4)
 "Fictitious personal name" means a name other than an individual's [
true
name. An "individual's true name" is the name taken at birth unless changed by operation of
law or by civil action
] 
legal name
.
[
(4)
] 
(5)
 "Material statement" or "material fact" means information that a person of
ordinary intelligence or prudence would consider important in deciding whether [
or not
] to
accept an offer extended through a telephone solicitation.
(6) "Participant" means a person seeking to register or renew a registration as a seller
including:
(a) a seller;
(b) an owner;
(c) an officer;
(d) a director;
(e) a member or manager of a limited liability company;
(f) a principal;
(g) a trustee;
(h) a general or limited partner;
(i) a sole proprietor; or
(j) an individual with a controlling interest in an entity.
[
(5)
] 
(7)
 "Premium" means a gift, bonus, prize, award, certificate, or other document by
which a prospective purchaser is given a right, chance, or privilege to purchase or receive
goods or services with a stated or represented value of $25 or more as an inducement to a
prospective purchaser to purchase other goods or services.
(8) "Seller" means a person, or a group of persons engaged in a common effort to
conduct a telephone solicitation, that:
(a) on behalf of the person, or the group of persons engaged in a common effort to
conduct a telephone solicitation:
(i) makes a telephone solicitation; or
(ii) causes a telephone solicitation to be made; or
(b) through a telephone solicitor:
(i) makes a telephone solicitation; or
(ii) causes a telephone solicitation to be made.
[
(6)
] 
(9)
 "Subscription arrangements," "standing order arrangements," "supplements,"
and "series arrangements" mean products or services provided, with the prior express request or
consent of the buyer, for a specified period of time at a price dependent on the duration of
service and to complement an initial purchase.
[
(7)
] 
(10)
 (a) "Telephone solicitation," "sale," "selling," or "solicitation of sale" means:
(i) a sale or solicitation of goods or services in which:
(A) (I) the seller solicits the sale over the telephone;
(II) the purchaser's agreement to purchase is made over the telephone; and
(III) the purchaser, over the telephone, pays for or agrees to commit to payment for
goods or services prior to or upon receipt by the purchaser of the goods or services;
(B) the [
solicitor
] 
seller
, not exempt under Section 
13-26-4
, induces a prospective
purchaser over the telephone, to make and keep an appointment that directly results in the
purchase of goods or services by the purchaser that would not have occurred without the
telephone solicitation and inducement by the [
solicitor
] 
seller
;
(C) the seller offers or promises a premium to a prospective purchaser if:
(I) the seller induces the prospective purchaser to initiate a telephone contact with the
[
telephone soliciting business
] 
seller
; and
(II) the resulting solicitation meets the requirements of Subsection [
(7)
] 
(10)
(a); or
(D) the [
solicitor
] 
seller
 solicits a charitable donation involving the exchange of any
premium, prize, gift, ticket, subscription, or other benefit in connection with [
any
] 
an
 appeal
made for a charitable purpose by an organization that is not otherwise exempt under Subsection
13-26-4
(2)(b)(iv); or
(ii) a telephone solicitation as defined in Section 
13-25a-102
.
(b) "Telephone solicitation," "sale," "selling," or "solicitation of sale" does not include
a sale or solicitation that occurs solely through an Internet website without the use of a
telephone call.
(c) A solicitation of sale or telephone solicitation is considered complete when made,
whether or not the person receiving the solicitation agrees to the sale or to make a charitable
donation.
[
(8) "Telephone soliciting business" means a sole proprietorship, partnership, limited
liability company, corporation, or other association of individuals engaged in a common effort
to conduct telephone solicitations.
]
[
(9)
] 
(11)
 "Telephone solicitor" or "solicitor" means [
a person, partnership, limited
liability company, corporation, or other entity that:
] 
an individual who engages in a telephone
solicitation on behalf of a seller.
[
(a) makes a telephone solicitation; or
]
[
(b) causes a telephone solicitation to be made.
]
Section 4. Section 
13-26-3
 is amended to read:
13-26-3.
Registration and bond required.
(1) (a) Unless exempt under Section 
13-26-4
, each [
telephone soliciting business
]
seller
 shall register annually with the division before engaging in telephone solicitations if:
(i) the [
telephone soliciting business
] 
seller
 engages in telephone solicitations that:
(A) originate in Utah; or
(B) are received in Utah; or
(ii) the [
telephone soliciting business
] 
seller, or a solicitor on behalf of the seller,
conducts any business operations in Utah.
(b) The registration form shall designate an agent residing in this state who is
authorized by the [
telephone soliciting business
] 
seller
 to receive service of process in any
action brought by this state or a resident of this state.
(c) If a [
telephone soliciting business
] 
seller
 fails to designate an agent to receive
service or fails to appoint a successor to the agent
, the division shall
:
(i) [
the business'
] 
deny the seller's
 application for an initial or renewal registration
[
shall be denied
]; and
[
(ii) any current registration shall be suspended until an agent is designated.
]
(ii) if the application is for a renewal registration, suspend the seller's current
registration until the seller designates an agent.
(d) [
(i)
] For purposes of this section only, the registered agent of a [
telephone soliciting
business
] 
seller
 shall provide the division 
the registered agent's
 proof of residency in the state[
.
]
in the form of:
(i) a valid Utah driver license;
(ii) a valid governmental photo identification issued to a resident of this state; or
(iii) other verifiable identification indicating residency in this state.
[
(ii) Proof of residency under Subsection (1)(d)(i) may be provided by a valid Utah
driver license, valid governmental photo identification issued to a resident of the state, or other
verifiable identification indicating residency in the state.
]
(2) The division may impose an annual registration fee set [
pursuant to
] 
in accordance
with
 Section 
63J-1-504
 that may include the cost of the criminal background check described
in Subsection (4).
(3) (a) Each [
telephone soliciting business
] 
seller subject to this chapter
 engaging in
telephone solicitation or sales in this state shall obtain and maintain the following security:
(i) a performance bond issued by a surety authorized to transact surety business in this
state;
(ii) an irrevocable letter of credit issued by a financial institution authorized [
to do
]
under the laws of this state or the United States doing
 business in this state; or
(iii) a certificate of deposit held in this state in a [
depository
] 
financial
 institution
[
regulated by the Department of Financial Institutions
] 
authorized under the laws of this state
or the United States to accept deposits from the public
.
(b) [
The
] 
A seller's
 bond, letter of credit, or certificate of deposit shall be payable to the
division for the benefit of any consumer who incurs damages as the result of [
any telephone
solicitation or sales
] 
the seller's
 violation of this chapter.
(c) [
The
] 
If the consumer has first recovered full damages, the
 division may recover
from the bond, letter of credit, or certificate of deposit 
administrative fines, civil penalties,
investigative costs, attorney fees, and other costs of collecting and distributing funds under this
section [
and the costs of promoting consumer education, but only if the consumer has first
recovered full damages
].
(d) A [
telephone soliciting business
] 
seller
 shall keep a bond, certificate of deposit, or
letter of credit in force for one year after [
it
] 
the day on which the seller
 notifies the division in
writing that [
it
] 
the seller
 has ceased all activities regulated by this chapter.
(e) The [
amount to be posted in the form of a
] 
seller shall post a
 bond, irrevocable
letter of credit, or certificate of deposit [
shall be
] 
in the amount of
:
(i) $25,000 if:
(A) neither the [
telephone soliciting business
] 
seller
 nor any affiliated person has
violated this chapter [
within three years preceding the date of the application
] 
in the three-year
period immediately before the day on which the seller files the application
; and
(B) the [
telephone soliciting business
] 
seller
 has fewer than 10 employees;
(ii) $50,000 if:
(A) neither the [
telephone soliciting business
] 
seller
 nor any affiliated person has
violated this chapter [
within three years preceding the date of the application
] 
in the three-year
period immediately before the day on which the seller files the application
; and
(B) the [
telephone soliciting business
] 
seller
 has 10 or more employees; or
(iii) $75,000 if the [
telephone soliciting business
] 
seller
 or any affiliated person has
violated this chapter [
within three years preceding the date of the application
] 
in the three-year
period immediately before the day on which the seller files the application
.
[
(f) For purposes of Subsection (3)(e) an "affiliated person" means a contractor,
director, employee, officer, owner, or partner of the telephone soliciting business.
]
[
(4) (a) As used in this Subsection (4), "participant" means an individual with a
controlling interest in or an owner, officer, director, member, principal, trustee, general partner,
limited partner, manager, sole proprietor, or key employee of a person seeking to register or
renew a registration as a telephone soliciting business.
]
[
(b) As part of the process to register or renew a registration as a telephone soliciting
business, a participant:
]
[
(i) may not, within the previous 10 years, have been convicted of a felony;
]
[
(ii) may not, within the previous 10 years, have been convicted of a misdemeanor
involving moral turpitude, including theft, fraud, or dishonesty; and
]
(4) To register or renew a registration as a seller, a participant:
(a) may not have been convicted of a felony in the 10-year period immediately before
the day on which the participant files the application;
(b) may not have been convicted of a misdemeanor involving moral turpitude,
including theft, fraud, or dishonesty, in the 10-year period immediately before the day on which
the participant files the application; and
[
(iii)
] 
(c)
 shall submit to the division:
[
(A)
] 
(i)
 the participant's fingerprints, in a form acceptable to the division, for purposes
of a criminal background check; and
[
(B)
] 
(ii)
 consent to a criminal background check by the Bureau of Criminal
Identification created in Section 
53-10-201
.
(5) [
The
] 
In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
Act, the
 division may establish by rule the registration requirements for [
telephone soliciting
businesses under the terms of Title 63G, Chapter 3, Utah Administrative Rulemaking Act. An
administrative proceeding conducted by the division under this chapter shall comply with the
requirements of Title 63G, Chapter 4, Administrative Procedures Act
] 
a seller
.
(6) If information in an application for registration or for renewal of registration as a
[
telephone soliciting business
] 
seller
 materially changes or becomes incorrect or incomplete,
the applicant shall, within 30 days after the 
day on which
 information changes or becomes
incorrect or incomplete, [
correct the application or
] submit the correct information to the
division in a manner that the division establishes by rule.
(7) The division director may deny or revoke a registration under this section for any
violation of this chapter.
Section 5. Section 
13-26-4
 is amended to read:
13-26-4.
Exemptions from registration.
(1) In [
any
] 
an
 enforcement action initiated by the division, [
the
] 
a
 person claiming an
exemption has the burden of proving that the person is entitled to the exemption.
(2) The following are exempt from [
the requirements of
] this chapter except for the
requirements [
of
] 
described in
 Sections 
13-26-8
 and 
13-26-11
:
(a) a broker, agent, dealer, or sales professional licensed [
under the licensure laws of
]
in
 this state, when soliciting sales within the scope of [
his
] 
the broker's, agent's, dealer's, or
sales professional's
 license;
(b) the solicitation of sales by:
(i) a public utility that is regulated under Title 54, Public Utilities, or by an affiliate of
the 
public
 utility;
(ii) a newspaper of general circulation;
(iii) a solicitation of [
sales
] 
sale
 made by a broadcaster licensed by [
any
] 
a
 state or
federal authority;
(iv) a nonprofit organization if no part of the net earnings from the sale inures to the
benefit of [
any
]
:
(A) a
 member, officer, trustee, or serving board member of the organization[
,
]
;
 or
(B) an
 individual, or 
a
 family member of an individual, holding a position of authority
or trust in the organization; and
(v) a person who periodically publishes and delivers a catalog of the [
solicitor's
] 
seller's
merchandise to prospective purchasers, if the catalog:
(A) contains the price and a written description or illustration of each item offered for
sale;
(B) includes the 
seller's
 business address [
of the solicitor
];
(C) includes at least 24 pages of written material and illustrations;
(D) is distributed in more than one state; and
(E) has an annual circulation by mailing of not less than 250,000;
(c) [
any publicly-traded
] 
a publicly traded
 corporation registered with the Securities
and Exchange Commission, or [
any
] 
a
 subsidiary of the 
publicly traded
 corporation;
(d) the solicitation of [
any
] 
a
 depository institution as defined in Section 
7-1-103
, a
subsidiary of a depository institution, personal property broker, securities broker, investment
adviser, consumer finance lender, or insurer subject to regulation by an official agency of this
state or the United States;
(e) the solicitation by a person soliciting only the sale of telephone services to be
provided by the person or the person's employer;
(f) the solicitation of a person relating to a transaction regulated by the Commodities
Futures Trading Commission, if:
(i) the person is registered with or temporarily licensed by the commission to conduct
[
that
] 
the
 activity under the Commodity Exchange Act; and
(ii) the registration or license has not expired or been suspended or revoked;
(g) the solicitation of a contract for the maintenance or repair of goods previously
purchased from the person:
(i) who is making the solicitation; or
(ii) on whose behalf the solicitation is made;
(h) the solicitation of previous customers of the [
business
] 
person
 on whose behalf the
call is made if the person making the call:
(i) does not offer any premium in conjunction with a sale or offer;
(ii) is not selling an investment or an opportunity for an investment that is not
registered with [
any
] 
a
 state or federal authority; and
(iii) is not regularly engaged in telephone sales;
(i) the solicitation of a sale that is an isolated transaction and not done in the course of
a pattern of repeated transactions of a [
like
] 
similar
 nature;
(j) the solicitation of a person by a retail business [
establishment
] that has been in
operation for at least five years in Utah under the same name as that used in connection with
telemarketing if [
both of
] the following occur on a continuing basis:
[
(i) products are displayed and offered for sale at the place of business, or services are
offered for sale and provided at the place of business; and
]
(i) at the retail business's place of business, the retail business:
(A) displays and offers products for sale; or
(B) offers services for sale and provides the services at the place of business; and
(ii) a majority of the [
seller's
] 
retail business's
 business involves the [
buyer obtaining
the products or services at the seller's place of business
] 
activities described in Subsection
(2)(j)(i)
;
(k) a person primarily soliciting the sale of a magazine or periodical sold by the
publisher or the publisher's agent through a written agreement, or printed or recorded material
through a contractual plan, such as a book or record club, continuity plan, subscription,
standing order arrangement, or supplement or series arrangement if:
(i) the [
seller
] 
person
 provides the consumer with a form that the consumer may use to
instruct the [
seller
] 
person
 not to ship the offered merchandise, and the arrangement is
regulated by the Federal Trade Commission trade regulation concerning use of negative option
plans by [
sellers
] 
a person making a sale
 in commerce; or
(ii) (A) the [
seller
] 
person
 periodically ships merchandise to a consumer who has
consented in advance to receive the merchandise on a periodic basis; and
(B) the consumer retains the right to cancel at any time and receive a full refund for the
unused portion;
(l) a telephone marketing service company that provides telemarketing sales services
under contract to [
sellers
] 
a person making a sale
 if:
(i) [
it
] 
the telephone marketing service company
 has been doing business regularly
with customers in Utah for at least five years under the same business name and with [
its
] 
the
telephone marketing service company's
 principal office in the same location;
(ii) at least 75% of [
its
] 
the telephone marketing service company's
 contracts are
performed on behalf of persons [
exempted
] 
exempt
 from registration under this chapter; and
(iii) neither the 
telephone marketing service
 company nor [
its
] 
the telephone marketing
service company's
 principals have been enjoined from doing business or subjected to criminal
actions for [
their
] 
the telephone marketing service company's or the telephone marketing
company's principal's
 business activities in this or any other state;
(m) a credit services organization that holds a current registration with the division
under Chapter 21, Credit Services Organizations Act, if the credit services organization's
telephone solicitations are limited to the solicitation of services regulated under Chapter 21,
Credit Services Organizations Act; and
(n) a provider that holds a current registration with the division under Chapter 42,
Uniform Debt-Management Services Act, if the provider's telephone solicitations are limited to
the solicitation of services regulated under [
Chapter 21, Credit Services Organizations Act
]
Chapter 42, Uniform Debt-Management Services Act
.
Section 6. Section 
13-26-5
 is amended to read:
13-26-5.
Right of rescission -- Cancellation.
(1) As used in this section, "business day" means a day other than Sunday or a federal
or state holiday.
[
(1)
] 
(2)
 (a) Except as provided in Subsections [
(1)
] 
(2)
(b) and (c), in addition to any
right to otherwise revoke an offer, a person [
making
] 
who makes
 a purchase from a [
telephone
soliciting business required to be registered under this chapter
] 
seller
 may cancel the sale [
up
to
] 
before
 midnight of the third business day after the [
receipt of
] 
day on which the person
receives
 the merchandise or premium, whichever is later, provided the 
seller or the seller's
solicitor advises the purchaser of [
his
] 
the purchaser's
 cancellation rights under this chapter at
the time [
any
] 
the
 solicitation is made.
(b) If the 
seller or the seller's
 solicitor [
required to be registered under this chapter
]
fails to orally advise a purchaser of the right to cancel under this section at the time of [
any
] 
a
solicitation, the purchaser's right to cancel [
shall be
] 
is
 extended to 90 days.
(c) If the 
seller or the seller's
 solicitor [
required to be registered under this chapter
] fails
to orally advise a purchaser of [
his true
] 
the seller's or the seller's solicitor's legal
 name,
telephone number, and complete [
street
] address at the time of [
any
] 
a
 solicitation, the
purchaser may cancel the sale at any time.
(d) Except as provided in Subsection (5), a seller shall provide a full refund to a
purchaser who cancels a sale in accordance with this section.
[
(2) Sales shall be cancelled by
]
(3) A purchaser may cancel a sale by:
(a)
 mailing a notice of cancellation to the [
telephone
] 
seller or seller's
 solicitor's correct
[
street
] address, postage prepaid[
. If
]
; or
(b) if
 the [
telephone solicitor provided no
] 
seller or the seller's solicitor fails to provide
the purchaser with the seller's or the seller's solicitor's
 correct [
street
] address, [
cancellation can
be accomplished by
] sending a notice of cancellation to the division's [
offices
] 
office
, postage
prepaid.
[
(3) (a) If a cancellation involves durable goods, as defined by rule, those goods shall
be returned to the seller.
]
[
(b) If expendable goods are involved, the purchaser shall return any unused portion of
those goods.
]
[
(c) A reasonable attempt shall be made to return goods to the solicitor's correct street
address within seven days of exercising the right to cancel, providing the solicitor has provided
the purchaser with the address. If the solicitor has failed to give a correct address, no return is
required to qualify for a full refund of the purchase price.
]
(4) (a) If a purchaser cancels a sale and the seller or the seller's solicitor provides the
purchaser with the seller's correct address, the purchaser shall, within seven business days after
the day on which the purchaser exercises the right to cancel, make a reasonable attempt to:
(i) if the canceled sale involves durable goods, return the goods to the seller; or
(ii) if the canceled sale involves expendable goods, return any unused portion of the
goods to the seller.
(b) If the seller or the seller's solicitor fails to provide to a purchaser the seller's correct
address, a purchaser who cancels a sale is not required to return any canceled goods to the
seller.
[
(d)
] 
(5) (a)
 If the purchaser 
who cancels a sale
 has used any portion of the services or
goods purchased, the [
solicitor or telephone soliciting business shall receive a reasonable
allowance for value given. This allowance may be deducted from any refund due the
purchaser
] 
purchaser shall provide the seller a reasonable allowance for the value given
.
(b) A seller may deduct the reasonable allowance described in Subsection (5)(a) from
any refund due the purchaser.
[
(e) A solicitor shall be jointly and severally liable with the telephone soliciting
business for any refund amount due following the cancellation of a sale made by the solicitor.
]
[
(4) For the purposes of this section, "business day" does not include Sunday or a
federal or state holiday.
]
Section 7. Section 
13-26-8
 is amended to read:
13-26-8.
Penalties.
[
(1) (a) Any telephone soliciting business or any person associated with a telephone
soliciting business, including solicitors, salespersons, agents, representatives of a solicitor, or
independent contractor, who violates this chapter as a first offense is guilty of a class B
misdemeanor.
]
[
(b) In the case of a second offense, the person is guilty of a class A misdemeanor.
]
[
(c) In the case of three or more offenses, the person is guilty of a third degree felony.
]
[
(d) (i) In addition to other penalties under this Subsection (1), the division director
may issue a cease and desist order and impose an administrative fine of up to $2,500 for each
violation of this chapter.
]
[
(ii) For purposes of Subsection (1)(d)(i), each telephone solicitation made in violation
of this chapter is a separate violation.
]
[
(iii) All money received through administrative fines imposed under this section shall
be deposited in the Consumer Protection Education and Training Fund created by Section
13-2-8
.
]
(1) (a) A seller or solicitor who violates a provision of this chapter is guilty of:
(i) a class B misdemeanor for a first violation;
(ii) if the seller or solicitor has one prior violation of this chapter, a class A
misdemeanor; and
(iii) if the seller or solicitor has two prior violations of this chapter, a third-degree
felony.
(b) For the purposes of Subsection (1)(a), a prior violation includes:
(i) a final prior conviction;
(ii) a final determination by a court of competent jurisdiction; or
(iii) a final determination in an administrative adjudicative proceeding.
(2) [
Any telephone soliciting business or any person associated with a telephone
soliciting business, including solicitors, salespersons, agents, representatives of a solicitor, or
independent contractors,
] 
A person
 who violates [
any
] 
a
 provision of this chapter [
shall be
] 
is
subject to a civil penalty in a court of competent jurisdiction [
not exceeding
] 
of up to
 $2,500
for each [
unlawful transaction
] 
violation of this chapter
.
(3) (a) The division may:
(i) in accordance with Title 63G, Chapter 4, Administrative Procedures Act, conduct an
administrative proceeding to enforce the provisions of this chapter;
(ii) bring a court action to enforce the provisions of this chapter; and
(iii) in addition to other penalties described in this chapter, issue a cease and desist
order and impose an administrative fine of up to $2,500 for each violation of this chapter.
(b) For purposes of this section, each telephone solicitation made in violation of this
chapter is a separate violation.
(4) The division shall deposit all administrative fines and civil penalties collected
under this chapter into the Consumer Protection Education and Training Fund created in
Section 
13-2-8
.
Section 8. Section 
13-26-11
 is amended to read:
13-26-11.
Prohibited practices.
(1) It is unlawful for [
any solicitor
] 
a seller to
:
(a) [
to
] solicit a prospective purchaser [
on behalf of a telephone soliciting business
that
] 
if the seller
 is not registered with the division or exempt from registration under this
chapter;
[
(b) to use a fictitious personal name in connection with a telephone solicitation;
]
[
(c)
] 
(b)
 [
to
] 
in connection with a telephone solicitation or a filing with the division,
make or cause to be made [
any untrue
] 
a false
 material statement[
,
] or fail to disclose a material
fact necessary to make [
any
] 
the seller's
 statement [
made
] not misleading[
, whether in
connection with a telephone solicitation or a filing with the division
];
[
(d)
] 
(c)
 [
to
] make or authorize the making of [
any
] 
a
 misrepresentation 
to a purchaser
or prospective purchaser
 about [
its
] 
the seller's
 compliance with this chapter [
to any
prospective or actual purchaser
];
[
(e)
] 
(d)
 [
to
] fail to refund within 30 days any amount due a purchaser who exercises
the right to cancel under Section 
13-26-5
; [
or
]
[
(f)
] 
(e)
 [
to
] 
unless the seller is exempt under Section 
13-26-4
,
 fail to orally advise a
purchaser of the purchaser's right to cancel under Section 
13-26-5
 [
unless the solicitor is
exempt under Section 
13-26-4
.
]
;
[
(2) It is unlawful for any telephone soliciting business:
]
[
(a) to cause or permit any solicitor to violate any provision of this chapter; or
]
[
(b) to use inmates in telephone soliciting operations where inmates have access to
personal data about an individual sufficient to physically locate or contact that individual, such
as names, addresses, telephone numbers, Social Security numbers, credit card information, or
physical descriptions.
]
(f) employ an inmate in a correctional facility for telephone soliciting operations when
the employment would give the inmate access to an individual's personal data, including the
individual's name, address, telephone number, Social Security number, credit card information,
or physical description; or
(g) cause or permit a solicitor to violate a provision of this chapter.
(2) It is unlawful for a solicitor to:
(a) use a fictitious personal name in connection with a telephone solicitation;
(b) in connection with a telephone solicitation, make or cause to be made a false
material statement or fail to disclose a material fact necessary to make the solicitor's statement
not misleading;
(c) make a misrepresentation to a purchaser or prospective purchaser about the
solicitor's compliance with this chapter; or
(d) unless the solicitor is exempt under Section 
13-26-4
, fail to orally advise a
purchaser of the purchaser's right to cancel under Section 
13-26-5
.
(3) If a person knows or has reason to know that a seller or solicitor is engaged in an
act or practice that violates this chapter, it is unlawful for the person to:
(a) benefit from the seller's or solicitor's services; or
(b) provide substantial assistance or support to the seller or solicitor.
Section 9. Section 
13-26-12
 is amended to read:
13-26-12.
Consumer complaints are public.
(1) As used in this section, "consumer complaint" means a complaint that:
[
(a) is filed with the division by a consumer or business;
]
(a) a person files with the division;
(b) alleges facts relating to conduct that the division regulates under this chapter; and
(c) (i) alleges a loss to the [
consumer or business
] 
person described in Subsection
(1)(a)
 of $3,500 or more; or
(ii) is one of at least 50 [
other
] complaints 
filed with the division:
(A)
 against the same person [
filed by other consumers or businesses
]
; and
(B)
 during the [
four years immediately preceding the filing of the complaint
] 
four-year
period immediately before the day on which the person described in Subsection (1)(a) files the
complaint
.
(2) For purposes of determining the number of complaints against the same person
under Subsection (1)(c)(ii)
(A)
, the division may consider complaints filed against multiple
corporations, limited liability companies, partnerships, or other business entities under
common ownership to be complaints against the same person.
(3) Notwithstanding Subsection 
13-11-7
(2) and subject to Subsections (4) and (5), a
consumer complaint:
(a) is a public record; and
(b) may not be classified as a private, controlled, or protected record under Title 63G,
Chapter 2, Government Records Access and Management Act.
(4) Subsection (3) does not apply to a consumer complaint:
[
(a) (i) if the division determines through an administrative proceeding that the
consumer complaint is nonmeritorious; and
]
[
(ii) beginning when the nonmeritorious determination is made; or
]
(a) that is nonmeritorious, beginning the day on which:
(i) the division determines through an administrative proceeding that the consumer
complaint is nonmeritorious; or
(ii) a court of competent jurisdiction finds the consumer complaint nonmeritorious; or
(b) that [
has been
] 
is
 on file with the division for more than four years 
after the day on
which the person files the consumer complaint
.
(5) Before making a consumer complaint that is subject to Subsection (3) or a response
described in Subsection (6) available to the public, the division:
(a) shall redact from the consumer complaint or response any information that would
disclose [
the address, Social Security number, bank account information, email address, or
telephone number of the consumer or business; and
]
:
(i) the filer's:
(A) address;
(B) Social Security number;
(C) bank account information;
(D) email address; or
(E) telephone number; or
(ii) information similar in nature to the information described in Subsection (5)(a)(i);
and
(b) may redact the name of the [
consumer or business
] 
filer
 and any other information
that could, in the division's judgment, disclose the identity of the [
consumer or business
] 
filer
filing the consumer complaint.
(6) A person's initial, written response to a consumer complaint that is subject to
Subsection [
(2)
] 
(3)
 is a public record.