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90_HB2631
SEE INDEX
Amends the Telephone Solicitations Act. Repeals all of
existing provisions except the short title. Provides that
telephone solicitations shall be regulated by the Illinois
Commerce Commission (Commission). Provides that telephone
solicitors shall identify themselves and request consent for
solicitation upon making a call. Establishes the "no sales
solicitation calls" list to be maintained by the Commission
which includes, for a fee, any residential, mobile, or
telephonic paging device telephone subscriber who does not
wish to receive unsolicited telephonic sales calls. Creates
the Telephone Solicitations Act Fund to be derived from the
fees and used by the Commission to administer this Act.
Provides that no telephone solicitor may call someone on the
"no sales solicitation calls" list, with some exceptions.
Establishes when a telephonic sales contract is enforceable.
Restricts the use of automated dialing systems and recorded
messages and the hours of telephone sales solicitation.
Provides for enforcement of the Act by the Commission, the
Attorney General, and consumers. Provides for attorney's
fees and costs and requires the Commission to inform
consumers about the provisions of this Act. Amends the State
Finance Act to create the new fund.
LRB9008933SMdv
LRB9008933SMdv
1 AN ACT regarding telephone sales calls.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The State Finance Act is amended by adding
5 Section 5.480 as follows:
6 (30 ILCS 105/5.480 new)
7 Sec. 5.480. The Telephone Solicitations Act Fund.
8 Section 10. The Telephone Solicitation Act is amended by
9 adding Sections 105, 110, 115, 120, 125, 130, 135, 140, 145,
10 150, 155, and 160 as follows:
11 (815 ILCS 413/105 new)
12 Sec. 105. Definitions. As used in this Act:
13 "Commission" means the Illinois Commerce Commission.
14 "Consumer" means an actual or prospective purchaser,
15 lessee, or recipient of consumer goods or services.
16 "Consumer goods or services" means any real property or
17 any tangible or intangible personal property which is
18 normally used for personal, family, or household purposes,
19 including, without limitation, any such property intended to
20 be attached to or installed in any real property without
21 regard to whether it is so attached or installed, as well as
22 cemetery lots and timeshare estates, and any services related
23 to such property.
24 "Doing business in this State" refers to businesses who
25 conduct telephonic sales calls from a location in Illinois or
26 from other states or nations to consumers located in
27 Illinois.
28 "Merchant" means a person who, directly or indirectly,
29 offers or makes available to consumers any consumer goods or
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1 services.
2 "Telephonic sales call" means a call made by a telephone
3 solicitor to a consumer, for the purpose of soliciting a sale
4 of any consumer goods or services, or for the purpose of
5 soliciting an extension of credit for consumer goods or
6 services, or for the purpose of obtaining information that
7 will or may be used for the direct solicitation of a sale of
8 consumer goods or services or an extension of credit for such
9 purposes.
10 "Telephone solicitor" means any natural person, firm,
11 organization, partnership, association, or corporation, or a
12 subsidiary or affiliate thereof, doing business in this
13 State, who makes or causes to be made a telephonic sales
14 call, including, but not limited to, calls made by use of
15 automated dialing or recorded message devices.
16 "Unsolicited telephonic sales call" means a telephonic
17 sales call other than a call made:
18 (1) in response to an express request of the person
19 called;
20 (2) primarily in connection with an existing debt or
21 contract, payment or performance of which has not been
22 completed at the time of the call;
23 (3) to any person with whom the telephone solicitor has
24 a prior or existing business relationship; or
25 (4) by a newspaper publisher or his or her agent or
26 employee in connection with his or her business.
27 (815 ILCS 413/110 new)
28 Sec. 110. Identification of solicitor; request for
29 consent to solicitation. Any telephone solicitor who makes
30 an unsolicited telephonic sales call to a residential,
31 mobile, or telephonic paging device telephone number shall
32 identify himself or herself by his or her true first and last
33 names and the business on whose behalf he or she is
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1 soliciting immediately upon making contact by telephone with
2 the person who is the object of the telephone solicitation
3 and shall inquire at the beginning of the call whether the
4 person called consents to the solicitation.
5 (815 ILCS 413/115 new)
6 Sec. 115. "No sales solicitation calls" listing; fees;
7 fund established.
8 (a) Any residential, mobile, or telephonic paging device
9 telephone subscriber desiring to be placed on a "no sales
10 solicitation calls" listing indicating that the subscriber
11 does not wish to receive unsolicited telephonic sales calls
12 may notify the Commission and be placed on that listing upon
13 receipt by the Commission of a $10 initial listing charge.
14 This listing shall be renewed by the Commission annually for
15 each consumer upon receipt of a renewal notice and a $5
16 assessment.
17 (b) The Commission shall update its "no sales
18 solicitation calls" listing upon receipt of initial consumer
19 subscriptions or renewals and provide this listing for a fee
20 to telephone solicitors upon request.
21 (c) The Telephone Solicitations Act Fund is created as a
22 special fund in the State Treasury. All fee revenues
23 received by the Commission under this Act shall be deposited
24 into the Telephone Solicitations Act Fund. All money in the
25 Telephone Solicitations Act Fund shall be used, subject to
26 appropriation by the General Assembly, for the administration
27 of this Act by the Commission.
28 (815 ILCS 413/120 new)
29 Sec. 120. No sales calls to numbers on the "no sales
30 solicitation calls" list; exception. No telephone solicitor
31 shall make or cause to be made any unsolicited telephonic
32 sales call to any residential, mobile, or telephonic paging
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1 device telephone number if the number for that telephone
2 appears in the then-current quarterly listing published by
3 the Commission. Any telephone solicitor or person who offers
4 for sale any consumer information which includes residential,
5 mobile, or telephonic paging device telephone numbers, except
6 directory assistance and telephone directories sold by
7 telephone companies and organizations exempt under Section
8 501(c)(3) or Section 501(c)(6) of the Internal Revenue Code,
9 shall screen and exclude those numbers which appear on the
10 Commission's then-current "no sales solicitation calls" list.
11 This Section does not apply to any person licensed pursuant
12 to the Real Estate License Act of 1983 who calls an actual or
13 prospective seller or lessor of real property when such call
14 is made in response to a yard sign or other form of
15 advertisement placed by the seller or lessor.
16 (815 ILCS 413/125 new)
17 Sec. 125. Enforceable telephonic sales contracts;
18 contracts not covered.
19 (a) A contract made pursuant to a telephonic sales call
20 is not valid and enforceable against a consumer unless made
21 in compliance with this Section.
22 (b) A contract made pursuant to a telephonic sales call:
23 (1) shall be reduced to writing and signed by the
24 consumer;
25 (2) shall comply with all other applicable laws and
26 rules;
27 (3) shall match the description of goods or
28 services as principally used in the telephone
29 solicitations;
30 (4) shall contain the name, address, and telephone
31 number of the seller, the total price of the contract,
32 and a detailed description of the goods or services being
33 sold;
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1 (5) shall contain, in bold, conspicuous type,
2 immediately preceding the signature, the following
3 statement:
4 "You are not obligated to pay any money unless
5 you sign this contract and return it to the
6 seller."; and
7 (6) may not exclude from its terms any oral or
8 written representations made by the telephone solicitor
9 to the consumer in connection with the transaction.
10 (c) The provisions of this Section do not apply to
11 contractual sales regulated under other provisions of the
12 Illinois Compiled Statutes, or to the sale of financial
13 services, security sales, or sales transacted by companies or
14 their wholly owned subsidiaries or agents, which companies
15 are regulated by Article XIII of the Public Utilities Act, or
16 to any sales where no prior payment is made to the merchant
17 and an invoice accompanies the goods or services allowing the
18 consumer 7 days to cancel or return without obligation for
19 any payment.
20 (815 ILCS 413/130 new)
21 Sec. 130. Requirement of signed contract before customer
22 charged; exceptions.
23 (a) A merchant who engages a telephone solicitor to make
24 or cause to be made a telephonic sales call shall not make or
25 submit any charge to the consumer's credit card account or
26 make or cause to be made any electronic transfer of funds
27 until after the merchant receives from the consumer a copy of
28 the contract, signed by the purchaser, which complies with
29 this Act.
30 (b) The provisions of this Section do not apply to a
31 transaction:
32 (1) made in accordance with prior negotiations in
33 the course of a visit by the consumer to a merchant
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1 operating a retail business establishment which has a
2 fixed permanent location and where consumer goods are
3 displayed or offered for sale on a continuing basis;
4 (2) in which the consumer may obtain a full refund
5 for the return of undamaged and unused goods or a
6 cancellation of services notice to the seller within 7
7 days after receipt by the consumer, and the seller will
8 process the refund within 30 days after receipt of the
9 returned merchandise by the consumer;
10 (3) in which the consumer purchases goods or
11 services pursuant to an examination of a television,
12 radio, or print advertisement or a sample, brochure, or
13 catalog of the merchant that contains:
14 (A) the name, address, and telephone number of
15 the merchant;
16 (B) a description of the goods or services
17 being sold; and
18 (C) any limitations or restrictions that apply
19 to the offer; or
20 (4) in which the merchant is a bona fide charitable
21 organization or a newspaper as defined in the Newspaper
22 Legal Notice Act.
23 (815 ILCS 413/135 new)
24 Sec. 135. Restrictions on use of automated dialing
25 systems and recorded messages.
26 (a) No person shall make or knowingly allow a telephonic
27 sales call to be made if the call involves an automated
28 system for the selection or dialing of telephone numbers or
29 the playing of a recorded message when a connection is
30 completed to a number called.
31 (b) Nothing in this Section prohibits the use of an
32 automated telephone dialing system with live messages if the
33 calls are made or messages given solely in response to calls
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1 initiated by the persons to whom the automatic calls or live
2 messages are directed or if the telephone numbers selected
3 for automatic dialing have been screened to exclude any
4 telephone subscriber who is included on the Commission's
5 then-current "no sales solicitation calls" listing or any
6 unlisted telephone number, or if the calls made concern goods
7 or services that have been previously ordered or purchased.
8 (815 ILCS 413/140 new)
9 Sec. 140. Restriction on hours of operation. No person
10 shall place an unsolicited telephonic sales call during the
11 hours between 9 p.m. and 8 a.m.
12 (815 ILCS 413/145 new)
13 Sec. 145. Enforcement by the Commission or Attorney
14 General. The Commission shall investigate any complaints
15 received concerning violations of this Act. If, after
16 investigating any complaint, the Commission finds that there
17 has been a violation of this Act, the Commission or the
18 Attorney General may bring an action to impose a civil
19 penalty and to seek other relief, including injunctive
20 relief, as the court deems appropriate against the telephone
21 solicitor. The civil penalty shall not exceed $10,000 per
22 violation and shall be deposited in the General Revenue Fund.
23 This civil penalty may be recovered in any action brought
24 under this Section by the Attorney General, or the Attorney
25 General may terminate any investigation or action upon
26 agreement by the person to pay a stipulated civil penalty.
27 The Attorney General or the court may waive any civil penalty
28 if the person has previously made full restitution or
29 reimbursement or has paid actual damages to the consumers who
30 have been injured by the violation. Nothing in this Section
31 shall prevent the Attorney General from initiating an
32 investigation and enforcement action.
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1 (815 ILCS 413/150 new)
2 Sec. 150. Enforcement by consumer. Any consumer injured
3 by a violation of this Act may bring an action for the
4 recovery of damages. Judgment may be entered for 3 times the
5 amount at which the actual damages are assessed, plus costs
6 and reasonable attorney's fees.
7 (815 ILCS 413/155 new)
8 Sec. 155. Attorney's fees and costs.
9 (a) In any civil litigation resulting from a transaction
10 involving a violation of this Act, the prevailing party,
11 after judgment in the trial court and exhaustion of all
12 appeals, if any, shall receive his or her reasonable
13 attorney's fees and costs from the nonprevailing party.
14 (b) The attorney for the prevailing party shall submit a
15 sworn affidavit of his or her time spent on the case and his
16 or her costs incurred for all the motions, hearings, and
17 appeals to the trial judge who presided over the civil case.
18 (c) The trial judge shall award the prevailing party the
19 sum of reasonable costs incurred in the action plus a
20 reasonable legal fee for the hours actually spent on the case
21 as sworn to in an affidavit.
22 (d) Any award of attorney's fees or costs shall become a
23 part of the judgment and subject to execution as the law
24 allows.
25 (e) In any civil litigation initiated by the Commission
26 or the Attorney General, the court may award to the
27 prevailing party reasonable attorney's fees and costs if the
28 court finds that there was a complete absence of a
29 justiciable issue of either law or fact raised by the losing
30 party or if the court finds bad faith on the part of the
31 losing party.
32 (815 ILCS 413/160 new)
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1 Sec. 160. Commission to inform consumers regarding Act.
2 The Commission shall by rule ensure that telecommunications
3 companies inform their customers of the provisions of this
4 Act. The notification may be made by:
5 (a) annual inserts in the billing statements mailed to
6 customers; and
7 (b) conspicuous publication of the notice in the
8 consumer information pages of the local telephone
9 directories.
10 (815 ILCS 413/5 rep.)
11 (815 ILCS 413/10 rep.)
12 (815 ILCS 413/15 rep.)
13 (815 ILCS 413/20 rep.)
14 (815 ILCS 413/23 rep.)
15 (815 ILCS 413/25 rep.)
16 Section 15. The Telephone Solicitations Act is amended
17 by repealing Sections 5, 10, 15, 20, 23, and 25.
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1 INDEX
2 Statutes amended in order of appearance
3 30 ILCS 105/5.480 new
4 815 ILCS 413/105 new
5 815 ILCS 413/110 new
6 815 ILCS 413/115 new
7 815 ILCS 413/120 new
8 815 ILCS 413/125 new
9 815 ILCS 413/130 new
10 815 ILCS 413/135 new
11 815 ILCS 413/140 new
12 815 ILCS 413/145 new
13 815 ILCS 413/150 new
14 815 ILCS 413/155 new
15 815 ILCS 413/160 new
16 815 ILCS 413/5 rep.
17 815 ILCS 413/10 rep.
18 815 ILCS 413/15 rep.
19 815 ILCS 413/20 rep.
20 815 ILCS 413/23 rep.
21 815 ILCS 413/25 rep.