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.
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.
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.
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.
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:
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).
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.
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).
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).
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).
No state statute.
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 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.
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 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.
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 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.
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).
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 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 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.
No state statute.
Calls permitted under Idaho Public Utilities Commission Rules. Idaho Code 31.51.02.000 et seq.
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 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 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 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 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 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 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 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 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.
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 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.
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 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 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 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 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)
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).
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.
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.
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 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 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.
No state statute.
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 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).
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 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 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 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 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.
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 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).
No state statute.
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.
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).
No state statute.
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).
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.