End User
License & Terms of Service Agreement
IMPORTANT - READ CAREFULLY BEFORE PROCEEDING
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY PRIOR TO CLICKING THE
"I AGREE" BUTTON, BY INDICATING YOUR ACCEPTANCE OF THESE TERMS AND
CONDITIONS CONTAINED IN THIS AGREEMENT, YOU ("The Subscriber")
ACKNOWLEDGE AND AGREE TO BE BOUND BY THE PROVISIONS OF THIS AGREEMENT FOR THE
USE OF THE SERVICES PROVIDED BY CHANESTE. Subscriber IS NOT WILLING TO BE BOUND BY THE
TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF THE Subscriber IS NOT OF AGE, OR
IS OTHERWISE UNABLE BY LAW TO BE A PARTY TO THIS AGREEMENT, THE Subscriber
SHOULD PROMPTLY EXIT FROM THIS WEB PAGE. CHANESTE SA RESERVES THE RIGHT TO
DISCONTINUE SERVICES IN THE EVENT Subscriber DOES NOT OTHERWISE COMPLY WITH THE
TERMS AND CONDITIONS CONTAINED HEREIN.
1. GRANT
OF RIGHTS TO USE SERVICES.
Effective upon acceptance of
this Agreement, CHANESTE SA hereby grants to Subscriber a nonexclusive,
nontransferable, free-of-charge license to access and use the Services, for
Subscriber's use.
Subscriber shall have no
right to sell use of the Services nor make any claim that it does have such
right.
The Services will allow
Subscriber to perform various functions sending prerecorded audio/voice
messages to predetermined phone numbers.
The Service will allow
Subscriber to perform various functions setting up various pre-recorded audio
voice messages and menu options that would allow callers to listen and respond
to various voice prompts.
Subscriber is solely
responsible for obtaining all equipment and approvals necessary for connection
to the World Wide Web and all charges associated with such connection to the
World Wide Web and phone service charges.
2.
SUBSCRIBER REGISTRATION
Subscriber will provide all
relevant data to CHANESTE upon signing up for the Services and at subsequent
times as requested.
Subscriber acknowledges
that CHANESTE may distribute the registration data to third parties, provided,
however, Subscriber's name, address (home and email) and telephone number will
not be distributed, unless required by law, or in the event Subscriber grants
CHANESTE the right to provide that information.
Subscriber shall update the
registration data as applicable.
Upon completion of all
registration information and acceptance of this Agreement, Subscriber will be
provided a User Name and Password.
Subscriber is solely
responsible for maintaining the confidentiality of Subscriber's User Name,
Password, and other information.
Subscriber shall not give
account information to third parties and shall at all times be responsible and
liable for any transactions or activities that occur on Subscriber's account.
Subscriber shall
immediately notify CHANESTE if any unauthorized use of Subscriber's account has
occurred or of any other breach of security.
Please refer to our Privacy
Policy for more details.
Subscriber understands and
agrees that Subscriber and, if applicable, Subscriber's company will assume all
financial responsibilities for use of CHANESTE services originating from Subscriber's
account by Subscriber or others.
3.
CHANESTE SA'S RIGHTS
CHANESTE shall retain all
right, title and interest to the Services including all copyrights, trademarks
and all other intellectual property right there to.
Subscriber may not, nor
allow any third party, to copy, distribute, sell, disclose, lend, transfer,
convey, modify, decompile, disassemble or reverse engineer the Services and no
use of trademarks is granted under this Agreement.
The copyright notices and
other proprietary legends shall not be removed from the Services and no use of
trademarks is granted under this Agreement.
Subscriber may not grant
any sub-license, leases or other rights in the Services to any third party. All
rights not expressly granted under this Agreement are retained by CHANESTE.
4.
TERMINATION
CHANESTE reserves the right
to suspend, deny or terminate Subscriber's service if CHANESTE, at its sole
discretion, believes Subscriber is using or plans to use CHANESTE services in a
manner that is unlawful, abusive, prohibited by the CHANESTE Terms of Service
or if Subscriber's use or planned use of CHANESTE services creates or could create a potential
adverse impact to CHANESTE's ability to provide service to others.
Upon termination,
Subscriber shall immediately cease to use the Services and CHANESTE shall have
no further obligations whatsoever to Subscriber.
CHANESTE shall not be
liable to the Subscriber or any third party for any reason for CHANESTE terminating this Agreement.
5.
LIMITATION OF LIABILITY
In no event shall CHANESTE
be liable to Subscriber or any third party for special, indirect, incidental or
consequential damages whether arising under contract, warranty, or tort
(including negligence or strict liability) or any other theory of liability.
CHANESTE's liability for damages, regardless of the form of the action, shall
not exceed the license fee paid by Subscriber for the Services, if any. The
limitation of liability reflects the allocation of risk between the parties.
The limitations specified in this Section will survive and apply even if any
limited remedy specified in this Agreement is found to have failed of its
essential purpose.
6.
WARRANTY DISCLAIMER
The Services licensed
thereunder are licensed "as is" and "as available" and
CHANESTE makes no warranties, express or implied, including but not limited to
the implied warranties of merchant ability and fitness for a particular purpose
and any similar warranty whether said warranty arises under provisions of any
law of the United States or any state thereof. CHANESTE makes no
representations or warranties that the services are free of rightful claims of
any third party for infringement of proprietary rights. The entire risk
associated with the use of the Services shall be borne solely by Subscriber.
CHANESTE makes no warranty
that the Services will meet Subscriber's requirements, or that the Services
will be uninterrupted, timely, secure, error free or that any defects in the
Services will be corrected.
CHANESTE Outbound service
is a nonrefundable, nonreturnable, non-exchangeable prepaid service. All
purchases are final. Unused balances are nonrefundable.
Monthly Reoccurring charge
and service charges are prepaid on a monthly basis. Additional minutes must be
purchased before additional charges are incurred.
CHANESTE does not make any
warranty pertaining to any goods or Services purchased, obtained, secured or
acquired through the Services or any transaction entered into through the
Service.
CHANESTE does not warrant the accuracy or reliability
of the results obtained through use of the Services or any data or information
downloaded or otherwise obtained or acquired through the use of the Services.
Subscriber acknowledges that any data or information downloaded or otherwise
obtained or acquired through the use of the Services are at Subscriber's sole
risk and discretion and CHANESTE will not be liable or responsible for any
damage to Subscriber or Subscriber's property.
Subscriber will not rely on
any representation or warranty implied or expressed by any persons other than
an authorized member of CHANESTE with regards to CHANESTE products and
services. Notwithstanding anything in this agreement to the contrary or
any other representations made by any representatives of CHANESTE whatsoever,
any and all data or information used in, produced by, or otherwise resulting
from any activity involving the use of the services remain the sole and final
responsibility of the Subscriber to verify and confirm prior to relying on such
data or information in the conduct of their activities. This includes but
is not limited to any data comparison, analysis, removal, restrictions,
limitations or other data manipulations, further including, but not limited to,
application of any do not call listings in any form whatsoever. Under no
circumstances will CHANESTE assume responsibility for Subscribers data and
resulting use of the services, regardless of the source or manner in which any
data was handled. Nothing whatsoever contained herein shall transfer
Subscribers final responsibility to ensure the accuracy of their platform data
to CHANESTE, Subscriber shall always remain responsible for performing any and
all final validations and confirmations of all data at all times prior to
utilization of the Services.
7. RETURN
POLICY
All sales are final.
8.
INDEMNIFICATION
Subscriber shall indemnify
and hold harmless CHANESTE, its directors, officers, employees and agents from
and against all liabilities, losses, costs, expenses (including reasonable
attorneys' fees), and damages resulting from any negligent acts, omissions or
willful misconduct by Subscriber, Subscriber's use of the Services and any
breach of the terms and conditions of this Agreement by Subscriber including
any violation of this agreement by subscriber or any other person using
subscribers account including but not limited to any violation of any federal
or state laws or regulations.
9.
MODIFICATION TO SERVICES
During the term of this
Agreement, CHANESTE may modify or discontinue the Services.
CHANESTE shall not be
liable to the Subscriber or any third party for any reason for CHANESTE's
modifying or terminating of such Services.
The Subscriber is
responsible for creating a back-up copy of any important or critical
information that is stored on the Service prior to storing on the CHANESTE
system.
10.
MODIFICATION TO AGREEMENT
CHANESTE may automatically
amend this Terms of Service Agreement at any time by (i) posting a revised
agreement on the CHANESTE Web site, and/or (ii) sending information regarding
the Terms of Service amendment to the email address Subscriber provides to
CHANESTE . Subscriber is responsible for regularly reviewing the CHANESTE Web
site to obtain timely notice of such amendments. Subscribers will be deemed to
have accepted these amended CHANESTE Terms of Service if Subscriber continues
to use CHANESTE service after such amended Terms of Service have been posted or
information regarding such amendment has been sent to Subscriber. Otherwise,
this Terms of Service Agreement may not be amended except in writing signed by
both parties.
11. RULES
AND REGULATIONS
Subscriber shall be fully
and solely liable for any prerecorded audio, voice transmissions sent through
the Service. CHANESTE has no control over the content of any transmission or
the destination such transmission will be sent nor will it be liable for such
content.
Subscriber shall not use
the Services to create or distribute any images, sounds, messages or other
materials, which are obscene, harassing, racist, malicious, fraudulent or
libelous, nor use the Services for any activity that may be considered or are
unethical, immoral, or illegal.
Further, Subscriber will
abide by all rules, regulations, procedures and policies of CHANESTE and any
policies of the networks connected to the Services.
Subscriber is aware, knows
and understands, the rules and regulations with specific regard to the Federal
Trade Commission and the Federal Communications Commission National Do Not Call
Registry rules and regulations and individual State Do Not Call Lists rules and
regulations along with any other similar laws that may be applicable
to subscribers use of CHANESTE. Subscriber agrees not to violate
these, or any other applicable Federal or State laws and represents and
warrants that subscribers use of CHANESTE will not cause CHANESTE to violate
these or similar laws.
Subscriber is aware or
knows and understands the anti-solicitation provisions of the Federal Telephone
Consumer Protection Act of 1991, and any amendments thereto, at 47 U.S.C.
227, the Federal Communications Commission's implementing regulations, at
47 CFR 64.1200 et seq., and any other similar laws. Subscriber agrees not
to violate these, or any other applicable anti-solicitation laws, and
represents and warrants that its use of CHANESTE will not cause CHANESTE to
violate these or other similar laws.
Subscriber agrees that it
is the sole responsibility of the Subscriber to abide by any laws defined by
the State or Federal Government in which Services will be applicable.
Subscriber understands and agrees that CHANESTE will not be held responsible
for damages to the Subscriber or any third party incurred due to Subscriber's
failure to abide by State and/or Federal laws. Please refer to the Telephone
Consumer Protection Act of 1991. You may visit the Federal Communications
Commission Web site at http://www.fcc.gov and the Federal Trade Commission Web
site at http://www.fcc.gov. Please refer to the appropriate State Attorneys
General office or other applicable offices for telemarketing rules and or
regulations pertaining to your intended application and use of the Service.
Currently there are no
numerical limits to the amount of transactions a Subscriber may send through
the Services, however, CHANESTE may set numerical limits by notifying
Subscriber. Subscriber agrees to abide by all applicable local, state, national
and international laws and regulations and is solely responsible for all acts
or omissions that occur under Subscriber's UserName and Password,
including the content of Subscriber's transmissions through the Service. By way
of example, and not as a limitation, Subscriber agrees not to:
Use the
Service in connection with the delivery or transmission of unsolicited messages
(commercial or otherwise) or spamming.
Create a
false identity or forged email address, or otherwise attempt to mislead others
as to the identity of the sender or the origin of the message.
Transmit
through the Service unlawful, harassing, libelous, abusive, threatening,
harmful, vulgar, obscene or otherwise objectionable material of any kind or
nature.
Transmit
any material that may infringe the intellectual property rights or other rights
of third parties, including trademark, copyright or right of publicity.
Violate
any U.S. law using the Service.
Interfere
with or disrupt networks connected to the Service or violate the regulations,
policies or procedures of such networks.
Attempt
to gain unauthorized access to the Service, other accounts, computer systems or
networks connected to the Service, through password mining or any other means.
Interfere
with another member's use and enjoyment of the Service or another entity's use
and enjoyment of similar services.
12. THIRD
PARTY ADVERTISER
Subscribers may enter into
transactions with advertisers on the Services.
Such transactions are
between Subscriber and advertisers and CHANESTE has no connection with any such
transaction.
CHANESTE assumes no
liability for any such transactions.
13.
GENERAL
This Agreement merges all
prior written and oral communications and defines the entire agreement of the
parties concerning the Services.
In the event any portion of
this Agreement shall be held illegal, void, or ineffective, the remaining
portions hereof shall remain in full force and effect and such illegal, void or
ineffective provisions shall be construed, as nearly as possible, to reflect
the intentions of the parties.
All notices under this
Agreement shall be in writing and delivered by email.
This Agreement shall be construed
in accordance with the laws of the State of Nevada without regard to its
conflict of laws or provisions. CHANESTE and the individual Subscriber and, if
applicable, the Subscriber's company will submit to the jurisdiction of the
State and Federal courts of Nevada.
Subscriber agrees and
acknowledges that any breach of the provisions regarding ownership contained in
this Agreement shall cause CHANESTE irreparable harm and CHANESTE may obtain
injunctive relief as well as seek all other remedies available to CHANESTE in
law and in equity.
Subscriber shall not assign
its rights under this Agreement. This Agreement shall be binding on and inure
to the benefit of the parties, their successors, and permitted assigns and
legal representatives.
The failure of CHANESTE to
exercise its rights under this Agreement will not be construed as a waiver of
such rights, nor will it any way affect the validity of this Agreement.
Sections 5, 6, and 7 shall survive termination or expiration of this Agreement
for any reason.
14.
Additional Terms and Conditions for CHANESTE Services
All charges for recurring
CHANESTE service will be charged to the credit card number subscriber provided
when signing up for CHANESTE service, or by electronic payment to a bank
account designated by CHANESTE if otherwise agreed between the parties.
In the event credit card or
other form of payment is denied, CHANESTE may discontinue service immediately.
Payment must be made within 5 business days or service may be terminated and a
$50 cancellation fee will apply.
Subscriber agrees to learn,
follow, and abide by all of the following and any subsequent additions,
alterations, and changes:
FEDERAL LAW
The inter and intra-state delivery of pre-recorded telephone calls is regulated
at the federal level by the Federal Communications Commission (FCC) through the
Telephone Consumer Protection Act (TCPA) and its accompanying regulations. I
have attached the law and the regulation for your convenience (Exhibits 1 and
2).
TCPA
The TCPA prohibits initiating "any telephone call to any residential
telephone line using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party, unless the call is
initiated for emergency purposes or is exempted by rule or order . . ." 47
U.S.C. 227(b)(1)(B). The regulations exempt the following types of
calls: (1) calls which are not made for commercial purposes; (2) calls which are
made for a commercial purpose but do not include or introduce the transmission
of any unsolicited advertisement or constitute a telephone solicitation; (3)
calls to any person with whom the caller has an established business
relationship at the time the call is made; or (4) calls made "by or on
behalf" of a tax exempt nonprofit organization. 47 C.F.R. 64.1200(a).
The TCPA requires that all calls using recorded or artificial voices disclose,
at the beginning of the message, the registered name of the business or
individual making the call and during or after the message state clearly the
telephone number (not a 900 number) of such business or individual, Id.
64.1200(b), and that you maintain a written "do-not-call"
policy available upon demand to consumers who request it. Id. at (d)(1).
Calls to hospital rooms, public safety numbers, or calls for which the
recipient is charged for the calls, (e.g. cell phones), are also illegal
without prior express consent from the called party. Id. at (a). You can only call
cell phones or other numbers for which the consumer is charged for the call if
you have express consent from that consumer. You therefore should scrub your
campaigns against cell phone databases to prevent those calls.
The FCC has specifically ruled that a consumer who provides his telephone
number to a business has expressly consented to calls to that number, absent
instructions to the contrary. 7 FCC Rcd. 8752, 31. Thus you can call
cell phones if the consumer provided the number and did not make instructions
to the contrary.
The FCC also requires that the recorded message begin within 2 seconds of the
called party’s completed greeting (e.g. "Hello?..."). Id.
at (a)(6)(I). Other technical requirements apply regarding line seizure, etc.
47 CFR 68.318.
"Established business relationship" is defined as:
A prior or existing relationship formed by a voluntary two-way communication
between a person or entity and a residential subscriber with or without an
exchange of consideration, on the basis of the subscribers purchase
or transaction with the entity within 18 months immediately preceding the date
of the telephone call or on the basis of the subscribers inquiry or
application regarding products or services offered by the entity within the 3 months
immediately preceding the date of the call, which relationship has not been
previously terminated by either party.
47 C.F.R. 64.1200(f)(3).
The term "Unsolicited advertisement" is defined as: "any
material advertising the commercial availability or quality of any property,
goods or services which is transmitted to any person without
that persons prior express invitation or permission." 47
C.F.R. 64.1200(f)(10).
The term "telephone solicitation" is defined as: "the initiation
of a telephone call or message for the purpose of encouraging the purchase or
rental of, or investment in, property, goods or services, which is transmitted
to any person . . ." 47 C.F.R. 64.1200(f)(9).
The commentary to the Rule is clear that any commercial recorded voice message
to a residence intended to ultimately result in the sale of goods or services
is banned unless placed to a consumer with whom the caller has an established
business relationship. Report and Order, July 3, 2003, 142.
Thus, calls to persons with whom your client has an existing business
relationship are exempt from the ban. It is extremely important that your
scripts fall within one of the exemptions set forth above or substantial
liability could result under the TCPA.
The FCC has proposed a revision to the Telephone Consumer Protection Act
(http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-18A1.doc) which would
"harmonize" the FCCs prerecorded rules with those of the recently
changed Telemarketing Sales Rule adopted by the FTC. The new FCC rules would
require that entities such as common carriers, banks, and insurance companies,
currently subject to less restrictive FCC standards, obtain express written
consent to send prerecorded telemarketing calls to consumers and adopt the
opt-out disclosure mechanism currently required by the Telemarketing Sales
Rule.
TSR
The FTC regulates prerecorded calls through the Telemarketing Sales Rule. 16
C.F.R. 310.4(b)(1)(v). This restriction prohibits initiating any
outbound telephone call with a prerecorded message (other than the call
abandonment message) unless the call is placed to a consumer with whom the
caller has an established business relationship or with the express consent of
the recipient (in the case of a call intended to result in the purchase of a
good or service). After September 1, 2009, prerecorded calls can only be placed
if the seller has obtained from the recipient of the call an express agreement,
in writing, that:
(i) the seller obtained only after a clear and conspicuous disclosure that the
purpose of the agreement is to authorize the seller to place prerecorded calls
to such person;
(ii) the seller obtained without requiring, directly or indirectly, that the
agreement be executed as a condition of purchasing any good or service; (iii)
evidences the willingness of the recipient of the call to receive calls that
deliver prerecorded messages by or on behalf of a specific seller; and
(iv) includes such persons telephone number and signature; n7
__________________________
n7 For purposes of this Rule, the term "signature" shall include
an electronic or digital form of signature, to the extent that such form of
signature is recognized as a valid signature under applicable federal law or
state contract law.
Id. at (A).
All outbound telephone calls using prerecorded messages are required to:
(i) allows the telephone to ring for at least fifteen (15) seconds or four (4)
rings before disconnecting an unanswered call; and
(ii) within two (2) seconds after the completed greeting of the person called,
plays a prerecorded message that promptly provides the disclosures required
by 310.4(d) or (e), followed immediately by a disclosure of one or
both of the following:
(A) in the case of a call that could be answered in person by a consumer, that
the person called can use an automated interactive voice and/or
keypress-activated opt-out mechanism to assert a Do Not Call request pursuant
to 310.4(b)(1)(iii)(A) at any time during the message. The mechanism
must:
(1) automatically add the number called to
the sellers entity-specific Do Not Call list;
(2) once invoked, immediately disconnect the call; and
(3) be available for use at any time during the message; and
(B) in the case of a call that could be answered by an answering machine or
voicemail service, that the person called can use a toll-free telephone number
to assert a Do Not Call request pursuant to 310.4(b)(1)(iii)(A). The
number provided must connect directly to an automated interactive voice or
keypress-activated opt-out mechanism that:
(1) automatically adds the number called to
the sellers entity-specific Do Not Call list;
(2) immediately thereafter disconnects the call; and (3) is accessible at any
time throughout the duration of the telemarketing campaign; and
(iii) Complies with all other requirements of this Part and other applicable
federal and state laws.
Id. at (B).
The definition of "outbound telephone call" is "a telephone call
initiated by a telemarketer to induce the purchase of goods or services or to
solicit a charitable contribution." 16 C.F.R. 310.2(u).
Federal law requires that telemarketing calls using prerecorded messages
transmit Caller ID information (number and where available name) to the
recipient of the calls. 16 CFR 310.4(a)(7).
FEDERAL SUMMARY
1. All calls must promptly disclose the name of the caller and before the end
of the call, a telephone number. 47 C.F.R. 64.1200(b).
2. Telephone solicitation calls are only permitted to consumers their express
consent. 16 C.F.R. 310.4(b)(1)(v)(A).
3. Telephone solicitation calls to consumers with express consent, if answered
by a live person, must promptly offer the consumer the opportunity to opt out
by pressing a number on the keypad. 16 C.F.R. 310.4(b)(1)(v)(B).
4. Prerecorded calls answered by a live person must comply with abandonment
standards. 16 C.F.R. 310.4(b)(1)(v)(B).
5. Prerecorded calls to cell phone numbers are banned without the prior express
consent of the recipient of the call. 47 C.F.R. 64.1200(a)(1).
STATE LAWS
Most states also exempt calls to established customers. Some do not exempt
calls to established customers from state prohibitions, while some allow the
calls but apply some restrictions (less than a total ban, e.g. scripting,
disconnect times, registration, consent).
The state and federal definitions of "established business
relationship" are set forth in a chart, attached hereto for your
convenience (Exhibit 3).
ALABAMA
No state statute.
ALASKA
Alaska law prohibits using automated or recorded messages using telephone
advertisements or solicitations. The term "telephone solicitation" is
defined as "the solicitation by a person by telephone of a customer at the
residence of the customer with the purpose of encouraging the customer to
purchase property, goods, or services, or make a donation." Alaska
Stat. 45.50.475(a)(2). The law exempts calls to previous customers,
calls by charitable organizations to members, and business-to-business calls.
Id. 45.50.475.
ARIZONA
Arizona law provides that:
A person that shall not use an automated system for the selection and dialing
of telephone numbers, and the playing of recorded message for the purpose of
soliciting persons to purchase goods or services, or requesting survey
information if the results are to be used directly for the purpose of soliciting
persons to purchase goods or services.
A.R.S. 13-2919.
Calls which do not engage in either of these activities are not prohibited by
this section.
Arizona law also provides that it is an unlawful practice for a seller or
solicitor to: "make a telephone call to any residential telephone using an
artificial or prerecorded voice to deliver a message unless the call is
initiated for emergency purposes or the call is made with the prior express
consent of the called party." A.R.S. 14-1278.
This section is broadly written to prohibit all calls using recordings to
residential telephone lines seeking the sale of goods or services.
ARKANSAS
Arkansas law prohibits the use of recordings to offer any goods or
services for sale or to convey information regarding goods or services for the
purpose of soliciting the sale and purchase thereof if the campaign involves an
automated system for the selection and dialing of telephone numbers in the
playing of recorded messages. A.C.A. 5-63-204.
CALIFORNIA
Calls using recordings are restricted by two state statutes: Cal. Civ.
Code 1770(a)(22)(A) and Cal. Pub. Util. Code 2873.
Cal. Civ. Code 1770 specifically exempts messages to persons with
whom the caller has an established business relationship. Id. 1770(22)(B).
Cal. Pub. Util. Code 2872 explicitly exempts calls placed using recordings
that do not dial random or subsequently and are used to solely place messages
to consumers with whom the caller has an established business relationship. Id.
2872(f).
COLORADO
Colorado law prohibits using:
An automated dialing system with a prerecorded message for the purpose of
soliciting another person to purchase goods or services, whether such
solicitation occurs or is intended to occur during the prerecorded message or
during some further communication initiated by or resulting from the
prerecorded message, unless there is an existing business relationship between
such persons and the person being called then consents to hear the recorded
message.
C.R.S. 18-9-311.
CONNECTICUT
Connecticut law prohibits recorded telephone messages which continue to
deliver the message after the customer hangs up the receiver. Conn. Gen.
Stat. 16-256e. Another Connecticut provision prohibits delivery of
recorded messages which offer to sell goods or services or deliver unsolicited
advertisements. Conn. Gen. Stat. 52-570c. Finally, a third provision
also prohibits unsolicited telephonic sales calls by use of a recorded message
device, but exempts calls to existing customers. Id. 42-288a(c).
DELAWARE
No state statute.
DISTRICT OF COLUMBIA
District of Columbia prohibits prerecorded messages which solicit a person to
purchase or lease goods or services or request survey information where results
are to be used directly for the purpose of soliciting a person to purchase
goods or services. D.C. Code 34-1701. District of Columbia exempts calls
to persons with whom the caller has a preexisting business relationship and the
call concerns goods or services that have previously been ordered. D.C.
Code 34-1701(a)(2)(B).
FLORIDA
Florida law applies unless the calls are placed concerning goods or
services that have been previously ordered or purchased. Fla.
Stat. 501.059(7)(b). The restriction only applies to
"telephonic sales calls" defined as:
a call made by a telephone solicitor to a consumer, for the purpose of
soliciting a sale of any consumer goods or services, or for the purpose of
soliciting an extension of credit for consumer goods or services, or for the
purpose of 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.
Id. at (a).
GEORGIA
Georgia prohibits the use of calls using recordings to solicit the sale of
goods or services or deliver advertising unless consent is received in advance
or by a live operator. O.C.G.A. 46-5-23. The term
"advertising" is not defined in the statute. Georgia law exempts
calls which "relate to payment for, service of, or warranty coverage of
previously ordered or purchased goods or services."
O.C.G.A. 46-5-23(b)(2).
This section is broadly written, however, to prohibit most types of calls.
HAWAII
No state statute.
IDAHO
Calls permitted under Idaho Public Utilities Commission Rules. Idaho
Code 31.51.02.000 et seq.
ILLINOIS
A prerecorded message may not be played without the consent of the person
being called. 815 ILCS 305/30. If not prohibited by that section,
calls are permitted between the hours of 9:00 a.m. and 9:00 p.m. All calls must
be disconnected within 30 seconds after termination of the call. Where
termination is not technically possible, a live operator must be used who shall
state his name, the name, address, and telephone number of the business
calling, and receive consent from the person being called to play the
prerecorded message. 815 ILCS 305/15.
The law does not apply to calls to persons with whom the telephone solicitor
has an existing business relationship. 815 ILCS 305/20.
INDIANA
Indiana law prohibits the use of calls using recorded messages unless the
message is immediately preceded by a live operator who asks
the consumers permission to play a recorded message. Burns Ind. Code
Ann. 24-5-14-5(b). The ban does not apply to subscribers with whom
the caller has a current business relationship.
IOWA
Iowa restricts the use of prerecorded messages if the device automatically
selects or dials telephone numbers. Iowa Code 476.57(2). Iowa law exempts
calls to persons or organizations with a prior business relationship with the
caller or regarding payment for service of or warranty of previously ordered or
purchased goods or services. Iowa Code 476.57(2)(b).
KANSAS
Kansas requires that automatic dialing announcing devices play a message
to a person who answers a call within five seconds at the beginning of the call
and that the message identify the business on whose behalf the call is made and
the business making the call. K.S.A. 50-670. The use of "unsolicited
advertisements" is prohibited, but this term is not defined in Kansas law.
Calls to consumers with whom the caller has an existing business relationship
are exempt so long as the solicitor is not a provider of telecommunications
services. K.S.A. 50-670(2)(C).
KENTUCKY
Kentucky restricts the use of calls placed through automatic calling
equipment which selects or dials telephone numbers and delivers recorded
messages to numbers so dialed. Calls are only allowed if the consumer
electronically consents to the call or if there is an established business
relationship. KRS 367.461(3)(e). Recorded messages to other consumers are
allowed if the consumer expressly consents to it (including electronic
consent). KRS 367.463. In this situation, the recorded message must
clearly state the telephone number of the organization initiating the call
within 25 seconds of the beginning of the message and at the conclusion of the
message. Line seizure is also prohibited as is random or sequential dialing.
KRS 367.461(2).
LOUISIANA
Louisiana law establishes that it is unlawful to use automated dialing
equipment to solicit sales or to advertise. La. R.S. 45:811.
Campaigns are allowed if the device has a feature which allows the consumer to
indicate consent to receive the recorded message. Id. 45:812. Calls for
the sale of additional goods or services to existing customers are exempt. Id.
45:816(3). A bond is required for the use of equipment in the State of
Louisiana. La. R.S. 45:813.
The Louisiana Public Service Commission also regulates the use of automatic
dialing and announcing devices defined as "a system which automatically
dials telephone numbers and disseminates recorded messages to numbers so
selected." La. Gen. Order R-29617.
Consent is required before messages are played using ADADs, either using a live
operator or if the message incorporates a feature to allow the recipient to
indicate consent. Id. at V.A.4.
MAINE
Maine restricts the use of automated telephone calling devices which
select dialer-called telephone numbers and play recorded messages to offer real
property, goods or services for sale or rent, to convey information on real
property, goods or services to promote or solicit charitable contributions or
to gather data or statistics or solicit information. 10
M.R.S. 1498(1). Solicitation calls are allowed on weekdays between
9:00 a.m. and 5:00 p.m. but cannot be dialed sequentially or randomly. Calls
regarding "pertinent information" on previously ordered goods or
services are exempt. 10 M.R.S. 1498(6).
MARYLAND
Maryland prohibits the use of:
An automated dialing . . . system with a prerecorded message to solicit persons
to purchase, lease or rent goods or services, offer a gift or prize, conduct a
poll, or request survey information where results will be used directly for the
purpose of soliciting persons to purchase, lease or rent goods or services.
Md. Pub. Util. Code Ann. 8-204(b).
Maryland exempts calls to persons with whom the caller has a preexisting
business relationship or consents to receive the call. Md. Pub. Util. Code
Ann. 8-204(a)(2).
MASSACHUSETTS
Massachusetts prohibits unsolicited telephonic sales calls by use of a
recorded message device. Mass. Ann. Laws. Ch. 159C,3. Calls to existing
customers are exempt. Id. 1.
Massachusetts also maintains an "opt out" list which must be
purchased. Mass. Ann. Laws Ch. 159, 19B, C, and D.
MICHIGAN
The use of a recorded message in whole or in part in telephone solicitations
for home solicitation sales is banned in Michigan. MCL 445.111a(1).
"Home solicitation sale" is defined as:
a sale of goods or services of more than $25 in which the seller or a person
acting for the seller engages in personal or telephonic solicitation of the
sale at a residence of the buyer and the buyers agreement or offer to
purchase is there given to the seller or a person acting for the seller.
Id. 445.111(a). However, this restriction only applies if the sale meets
the definition of home solicitation sale, thus the statute only restricts
transactions where the agreement to purchase is ultimately given at the
residence of the consumer. Id. 445.111(a).
Another Michigan law prohibits delivering "commercial advertising" by
recorded voice message to businesses or residences without knowing consent or
unless the subscriber has knowingly and voluntarily provided his telephone
number to the caller. MCL 484.125. Calls concerning merchandise or goods
previously ordered are exempt.
MINNESOTA
Minnesota restricts the use of automatic dialing announcing devices
defined as "a device that selects and dials telephone numbers and that
working alone or in conjunction with other equipment disseminates a prerecorded
or synthesized voice message of the telephone number called." Minn.
Stat. 325E.26. Calls are only allowed if the consumer has knowingly
consented to receive the message or the call is preceded by a live operator.
Id. 325E.27. Calls to persons with whom the caller has a prior business
relationship are exempt. Id. 325E.26 Subd. 4.
MISSISSIPPI
Calls using delivery of recordings are restricted by two state statutes: Miss.
Code Ann. 77-3-451, 723.
Miss. Code Ann. 77-3-723 establishes that no person or entity who
makes a telephone solicitation to a consumer may use an automated dialing
system that uses a recorded voice message to communicate with a consumer unless
the person or entity has an established business relationship with the consumer
and uses the message to inform the consumer about a new product or service.
Miss. Code Ann. 77-3-723(2).
Miss. Code Ann. 77-3-451 restricts the use of "automatic
dialing announcing devices" and defines them as:
any automatic equipment which incorporate[s] a storage capability of telephone
numbers to be called or a random or sequential number generator capable of
producing numbers to be called and the capability, working alone or in conjunction
with other equipment, to disseminate a prerecorded message the telephone number
called.
Miss. Code Ann. 77-3-451. Calls are allowed if a live person
introduces the message and obtains consent from the person called. Id.
77-3-455(2). Calls to established customers are exempt. Id.
77-3-453(5).
MISSOURI
Missouri requires recorded calls to promptly at the beginning of the call
inform the customer that the call is being made by a recorded voice. RS
Mo. 407.1073(1)(5). Calls to established customers are exempt. Id.
407.1085(4)(b).
MONTANA
Montana prohibits using recordings to deliver messages which offer goods
or services for sale, convey information on goods or services in soliciting
sales, solicit information, gather data or statistics, or promote political
campaigns. Mont. Code Anno. 45-8-216. Montana law exempts calls to
persons with whom there is a preexisting business relationship. Id.
45-8-216(2).
NEBRASKA
Nebraska law restricts the use of recordings using the same language as
that found in the Telephone Consumer Protection Act. R.R.S.
Neb. 86-248. Calls are also restricted to between the hours of 8:00
a.m. and 9:00 p.m. Calls exempt if the caller has an established business
relationship with the consumer. Id. 86-248. Permit required. R.R.S.
Neb. 86-250.
NEVADA
Nevada restricts the use of a "device for automatic dialing and
announcing" defined as:
any equipment that:
1. Incorporates a storage capability of telephone numbers to be called and
utilizes a random or sequential number generator producing telephone numbers to
be called; and
2. Is used exclusively, working alone or in conjunction with other equipment,
to disseminate a prerecorded message to the telephone number called to solicit
a person at the telephone number called to purchase goods or services.
Nev. Rev. Stat. Ann. 597.812
These restrictions arguably do not apply if the caller has a prior
existing business relationship with the called person. Nev. Rev. Stat.
Ann. 597.814(3)
NEW HAMPSHIRE
Calls allowed with registration and disclosures. N.H. R.
S. 359-E:1 et seq. New Hampshire exempts calls to consumers
with whom the caller has a preexisting relationship. Id. 359-E:1(II).
NEW JERSEY
The term "automatic dialing device" applies only to equipment which
randomly or sequentially dials telephone numbers and plays a recorded message.
N.J. Stat. 56:8-55. New Jersey’s restrictions do not apply
if the equipment uses predictive dialing technology, rather than random or
sequential dialing.
New Jersey law further provides that a caller within the state of New Jersey
shall not use recorded messages unless placed to consumers with who the caller
has an existing business relationship, or if introduced by a live operator.
N.J. Stat. 48:17-28. New Jersey exempts calls to persons with whom
the caller has an established business relationship. Id. 48:17-28.
NEW MEXICO
Solicitations using recordings are prohibited. N.M. Stat.
Ann. 57-12-22. New Mexico exempts calls if there is an established
business relationship between the caller and the consumer and the consumer
consents to hear the prerecorded message. Id.
NEW YORK
Calls using recorded voices are allowed but random or sequential dialing is
prohibited. NY CLS Gen Bus 399-p. The address and telephone number of the
calling party are to be disclosed. NY CLS Gen Bus 399-p(3).
NORTH CAROLINA
North Carolina law prohibits using recordings to make unsolicited telephone
calls unless the caller is a charitable, civic, political, or opinion polling
organization, the caller clearly identifies the nature of the call and the name
and address of the calling organization, and the call does not contain a
telephone solicitation for a donation, sale of goods or services, or to
encourage participation in a contest, sweepstakes, raffle, or lottery. N.C.
Gen. Stat. 75-104. Calls announced by live operators are exempt from
the restriction as are calls regarding an existing debt or contract. Id.
75-104(b)(2).
NORTH DAKOTA
North Dakota law prohibits the use of automatic dialing-announcing devices
without the consumers consent or without the use of a live operator.
N.D. Cent. Code 51-28-02.
Calls to consumers with whom the caller has a "current business
relationship" are exempt. Id.
North Dakotas Attorney General currently interprets this clause to
not include past purchasers.
OHIO
No state statute.
OKLAHOMA
Calls which provide information regarding goods or services are restricted.
15 Okl. St. 755.1. Calls are allowed to established customers
regarding goods previously purchased. 15 Okl. St. 755.1(c),
21 Okl. St. 1847a.
OREGON
Oregon permits calls only between 9 a.m. and 9 p.m.
ORS 646A.372(4). All calls must be disconnected within 10 seconds of
termination of the call. Id. 646A.372(1). Calls to subscribers on the
state "do-not-call" list are prohibited, but calls made pursuant to
an established business relationship are exempt from this ban. Id.
646A.372(2), (3).
PENNSYLVANIA
The use of automatic dialing announcing devices is banned except with the
express consent of the called party or if the message is preceded by an
announcement stating that the call is recorded, the name, address, and
telephone number of the caller, and the purpose of the message. No calls are
allowed to emergency numbers, and calls are banned on Sundays, or outside of
the hours of 9 a.m. to 9 p.m. on other days. 52 P.S. 63.60.
RHODE ISLAND
Rhode Island requires that "telephonic sellers" only deliver
recordings if the subscriber has knowingly consented to receive the call or the
message is immediately preceded by a live operator. R.I. Gen.
Laws 5-61-3.4(a).
However, the term "telephonic seller" is defined to only include a
person who causes a solicitation to occur and represents that:
A telephone solicitation or attempted telephone solicitation where the telephone
seller initiates or engages in telephonic contact with a prospective purchaser
and represents or implies one or more of the following:
(A) That a prospective purchaser who buys one or more items will also receive
additional or other items, whether or not of the same type as purchased,
without further cost. For the purposes of this
subdivision, further cost does not include actual postage or common
carrier delivery charges, if any;
(B) That a prospective purchaser will receive a prize or gift, if the person
also encourages the prospective purchaser to purchase or rent any goods or
services or pay any money, including, but not limited to, a delivery or
handling charge;
(C) That a prospective purchaser who buys office equipment or supplies will,
because of some unusual event or imminent price increase, be able to buy these
items at prices which are below those that are usually charged or will be
charged for the items;
(D) That the seller is a person other than the person he or she is;
(E) That the items for sale are manufactured or supplied by a person other than
the actual manufacturer or supplier;
(F) That the seller is offering to sell the prospective purchaser any gold,
silver, or other minerals, or any interest in oil, gas, or mineral field, wells,
or exploration sites.
R.I. Gen. Laws 5-61-2(8)(i). Calls to previous purchasers are
exempt. Id. 5-61-2(8)(vi).
SOUTH CAROLINA
South Carolina law prohibits calls using recordings for the purpose of
soliciting a sale of consumer goods or services or for the purpose of
soliciting an extension of credit or for the purpose of obtaining information
that will or may be used for a direct solicitation of sale of consumer goods or
an extension of credit. S.C. Code Ann. 16-17-446(B). Calls to persons
with whom the caller has an established business relationship are exempt. Id.
16-17-446(B)(3).
SOUTH DAKOTA
South Dakota allows the use of automatic telephone dialing systems to place
telephone solicitations but requires registration with the Public Utilities
Commission. S.D. Codified Laws 37-30-25. "Telephone
solicitation" is defined as "an unsolicited initiation of a telephone
call to a residential telephone customer for the purpose of encouraging a
person to purchase property, goods, or services or soliciting donations of
money, property, goods, or services." S.D. Codified
Laws 37-30-24. Calls to established customers are exempt. Id.
37-30-24.
TENNESSEE
Tennessee law prohibits the use of calls using recorded messages "for
the purpose of advertising or offering for sale, lease, rental or as a gift any
goods, services or property, either real or personal, primarily for personal,
family or household use" without written consent. Tenn. Code
Ann. 47-18-1502. Calls regarding previously purchased goods are exempt.
Id. 47-18-1507.
The term "advertising" is not defined in the statute.
TEXAS
Calls are permitted but are subject to the following restrictions:
1. Must disconnect within 5 seconds after called party hangs up. If the device
cannot disconnect during that time period, a live operator must introduce the
call and receive the called persons oral consent before delivering
the message. Tex. Util. Code 55.125
2. Message must be shorter than 30 seconds or dialer must have the capability
to recognize a telephone answering device and terminate the call within 30
seconds. Id. 55.128.
3. Curfew restriction: 9:00 a.m. to 9:00 p.m. Monday through Saturday; 12:00
p.m. to 9:00 p.m. Sunday. Id. 55.125.
4. Within the first 30 seconds of the call, the message must clearly state the
nature of the call, the identity of the business, and the telephone number or
address of the business initiating the call. Id. 55.127.
5. Entire message must be delivered in a single language. Id.
Permit for use of dialing equipment is required from the Public Utilities
Commission (http://www.puc.state.tx.us/telecomm/forms/index.cfm). Tex.
Utilities Code 55.129. The term "automatic dialing announcing
device" is defined as:
automated equipment used for telephone solicitation or collection that can:
1. store telephone numbers to be called or produce numbers to be called through
use of a random or sequential number generator; and
2. convey, alone or in conjunction with other equipment, a prerecorded or
synthesized voice message to the number called without the use of a live
operator.
Tex. Utilities Code 55.121. There is a $50.00 fee for this permit.
UTAH
Utah restricts the use of automatic dialing systems for telephone
solicitations. Utah Code Ann. 13-25a-103(1). Calls to consumers with
whom the business has an established business relationship are exempt. Id.
13-25a-103(2)(b).
VERMONT
No state statute.
VIRGINIA
Calls made using recorded voices are banned for initial sales contacts. Va.
Code Ann. 18.2-425.1. Calls to previous customers or persons with
whom the caller has a previous existing business relationship could be exempt.
WASHINGTON
Automatic dialing and announcing devices used for commercial solicitation
are prohibited. The term "commercial solicitation" is defined as
"the unsolicited initiation of a telephone conversation for the purpose of
encouraging a person to purchase property, goods or services."
ARCW 80.36.400(1).
An "automatic dialing and announcing device" is defined as "a
device which automatically dials telephone numbers and plays a recorded message
once a connection is made." ARCW 80.36.400(1)(a).
WEST VIRGINIA
No state statute.
WISCONSIN
Wisconsin prohibits telephone solicitations using recorded messages
without consent. Wis. Stat. 100.52; Wis. Admin. Code
ATCP 127.83(2)(b). "Telephone solicitation" is defined as
"a telephone conversation for the purpose of encouraging a person to
purchase property, goods or services." Id. 100.52(1)(i).
WYOMING
Calls using recordings are prohibited if they offer goods or services for sale,
convey information on goods or services in soliciting sales of purchases,
solicit information, or gather data or statistics. Wyo.
Stat. 6-6-104; 40-12-303.
As in all your messages, general consumer protection law prohibits misleading
or deceptive information to consumers. It is always important to remember for
all your messages, regardless of medium of delivery, that the script cannot be
deceptive or misleading. The government will often use the "least
sophisticated consumer" standard with regard to this test. Thus,
your clients script should not be ambiguous or deceptive in any way.
Also, the TCPA requires that all telemarketers maintain a copy of a
"do-not-call" policy available "upon demand." This policy
is compliant with the TCPA and should be provided to any consumer who requests
it. You are required to provide this policy within thirty days of any request.