Wisconsin Legislature: ATCP 127.01

Ch. ATCP 127 Note Note: This chapter is adopted under authority of s. 100.20 (2), Stats., and is administered by the Wisconsin department of agriculture, trade and consumer protection. Violations of this chapter may be prosecuted under s. 100.20 (6) and s. 100.26 (3) or (6), Stats. A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under s. 100.20 (5), Stats., and may recover twice the amount of the loss, together with costs and reasonable attorneys' fees. Subchapter V is also adopted under authority of s. 100.52, Stats. A telephone solicitation to a residential telephone customer included on the “no-call" list under subch. V does not, by itself, result in a monetary loss for which the customer may seek recovery under s. 100.20(5), Stats., unless the residential telephone customer sustains an actual monetary loss as a result of another violation of this chapter.

Ch. ATCP 127 Note Note: Chapter Ag 127 was renumbered ch. ATCP 127 under s. 13.93 (2m) (b) 1., Stats., Register, April, 1993, No. 448. Chapter ATCP 127 as it existed on July 31, 1999 was repealed and a new chapter ATCP 127 was created effective August 1, 1999.

subch. I of ch. ATCP 127 Subchapter I — Definitions

ATCP 127.01 ATCP 127.01 Definitions. In this chapter:

ATCP 127.01(1) (1) “Acquirer" means a financial institution or other person who, under a license or authorization granted by a credit card system operator, authorizes merchants to honor credit cards and submit credit card sales drafts for payment through the credit card system.

ATCP 127.01(2) (2) “Consumer" means an individual to whom a seller advertises, offers to sell, sells, or promotes the sale of consumer goods or services. “Consumer" does not include an individual who purchases consumer goods or services in a business capacity, or for resale to others.

ATCP 127.01(3) (3) “Consumer goods or services" means goods or services typically used for personal, family, or household purposes. “Consumer goods or services" includes personal investment opportunities, personal business opportunities, and personal training courses but does not include any of the following:

ATCP 127.01(3)(a) (a) Investment opportunities, business opportunities, and training courses when offered to a business, rather than a consumer.

ATCP 127.01(3)(b) (b) Real estate, other than cemetery lots or timeshares as defined in s. 707.02 (24), Stats.

ATCP 127.01(3)(c) (c) Pay-per-call services sold in compliance with s. 196.208, Stats.

ATCP 127.01(3)(d) (d) A newspaper subscription that the consumer may cancel at any time without penalty.

ATCP 127.01(4) (4) “Credit" means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.

ATCP 127.01(5) (5) “Credit card" means any card or other device which entitles an authorized holder to obtain goods, services, or other things of value on credit.

ATCP 127.01(6) (6) “Credit card sales draft" means any record or evidence of a credit card transaction.

ATCP 127.01(7) (7) “Credit card system" means the system through which credit card transactions, using credit cards issued or licensed by the credit card system operator, are processed for payment.

ATCP 127.01(8) (8) “Credit card system operator" means a person who operates a credit card system, or who licenses others to operate a credit card system.

ATCP 127.01(9) (9) “Department" means the state of Wisconsin department of agriculture, trade and consumer protection.

ATCP 127.01(10) (10) “Disclose" means to make a clear and conspicuous statement which is reasonably designed to be noticed and readily understood by the consumer.

ATCP 127.01(11) (11) “Individual" means a natural person.

ATCP 127.01(12) (12) “Investment opportunity" means anything, tangible or intangible, that is offered, sold, or traded based wholly or in part on representations, either express or implied, about past, present, or future income, profit, or appreciation. “Investment opportunity" does not include a security sold in compliance with ch. 551, Stats., or a franchise investment sold in compliance with ch. 553, Stats.

ATCP 127.01(13) (13) “Mass advertisement" means a solicitation which a seller publishes or makes accessible to an unrestricted mass audience. “Mass advertisement" includes a solicitation published in a newspaper, magazine, radio broadcast, television broadcast, or internet home page. “Mass advertisement" does not include a solicitation which a seller addresses to an individual consumer, to a consumer's residence, or to a gathering of consumers invited by means of telephone, mail, or face-to-face solicitations under this chapter.

ATCP 127.01(14) (14) “Merchant" means a person who is authorized, under a written agreement with an acquirer, to honor credit cards and submit credit card sales drafts to the acquirer for payment and processing through the credit card system.

ATCP 127.01(15) (15) “Person" means an individual, corporation, partnership, cooperative, limited liability company, trust, or other legal entity.

ATCP 127.01(16) (16) “Prize promotion" means any of the following:

ATCP 127.01(16)(a) (a) A sweepstakes or other game of chance.

ATCP 127.01(16)(b) (b) A seller's express or implied representation that a consumer has won, has been selected to receive, may be eligible to receive, or may have a chance to receive a prize.

ATCP 127.01(16)(c) (c) Any communication from a seller to a consumer in which the seller is required to give the consumer a prize notice under s. 100.171, Stats.

ATCP 127.01(17) (17) “Purchase" means to buy or lease consumer goods or services.

ATCP 127.01(18) (18) “Purchase contract" means an agreement to purchase consumer goods or services, regardless of whether that agreement is subject to a later right of cancellation. “Purchase contract" does not include the following agreements, but does include a purchase commitment which arises under any of those agreements as a result of the consumer's subsequent action or omission:

ATCP 127.01(18)(a) (a) An agreement authorizing the trial delivery of consumer goods or services which the consumer has not yet agreed to purchase, provided that the agreement includes no minimum purchase requirement.

ATCP 127.01(18)(b) (b) A negative option plan that is covered by and complies with 16 CFR 425.

ATCP 127.01 Note Note: Some direct marketers offer trial delivery plans in which the consumer agrees to receive trial deliveries of goods which the consumer has not yet agreed to purchase. Under these agreements, a consumer is typically free to reject or return any trial delivery without purchasing that delivery. But under the trial delivery agreement, the seller may bill the consumer for the delivered goods if the consumer fails to reject or return the delivery within a specified time. Although the consumer's initial agreement to receive trial deliveries is not itself a “purchase contract" (unless it includes a minimum purchase commitment), the consumer effectively enters into a “purchase contract" for a particular delivery when the consumer fails to return or reject that delivery according to the trial delivery agreement.

ATCP 127.01(19) (19) “Sale" means the passing of an ownership or leasehold interest in consumer goods or services to a consumer for a price.

ATCP 127.01(20) (20) “Sell" means to engage in the sale of consumer goods or services, or to accept payment pursuant to a purported sale of consumer goods or services.

ATCP 127.01(21) (21) “Seller" means a person, other than a bank, savings bank, savings and loan association, credit union, insurance company, public utility, or telecommunications carrier engaged in exempt activities under s. 93.01 (1m), Stats., who is engaged in the business of selling, offering to sell, or promoting the sale of consumer goods or services to consumers. “Seller" includes all of the following:

ATCP 127.01(21)(a) (a) A person who accepts payment for a purported sale of consumer goods or services to a consumer.

ATCP 127.01(21)(b) (b) An employee or agent of a seller.

ATCP 127.01(21)(c) (c) A person who makes solicitations under arrangement with a seller.

ATCP 127.01 Note Note: For example, a telemarketing firm that makes telephone solicitations on behalf of a “seller" is also a “seller" for purposes of this chapter. Individual employees of the telemarketing firm are also “sellers," for purposes of this chapter, when making telephone solicitations to consumers.

ATCP 127.01(22) (22) “Solicitation" means a communication received by a consumer at a place other than the seller's regular place of business, in which a seller offers or promotes the sale of consumer goods or services to a consumer, or which is part of a seller's plan or scheme to sell consumer goods or services to a consumer. “Solicitation" does not include any of the following:

ATCP 127.01(22)(a) (a) A mass advertisement.

ATCP 127.01(22)(b) (b) A telephone, mail, or electronic communication initiated by the consumer, unless prompted by the seller's prior solicitation to the consumer.

ATCP 127.01 Note Note: Paragraph (b) does not except a face-to-face communication.

ATCP 127.01(22)(c) (c) A written communication that invites a consumer to the seller's regular place of business.

ATCP 127.01(22)(d) (d) A communication initiated by a consumer at an established public market, unless that communication was prompted by the seller's prior solicitation to the consumer.

ATCP 127.01 Note Note: For example, a routine transaction at a farmers market is not a “solicitation" under this chapter, even though it occurs at a place other than the seller's “regular place of business."

ATCP 127.01(22)(e) (e) The delivery, to a consumer, of goods or services sold to the consumer in a transaction other than a telephone, mail, or face-to-face transaction under this chapter.

ATCP 127.01 Note Note: A “solicitation" under sub. (22) is covered by this rule even though it is not the first communication between the seller and the consumer.

ATCP 127.01(23) (23) “Written" or “in writing," as applied to a seller's disclosure to a consumer, means legibly printed on paper or another tangible nonelectronic medium that is delivered to the consumer, or legibly printed in an electronic form that the consumer can electronically retrieve, store, or print for future reference.

ATCP 127.01 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99; CR 02-036: am. (15), Register November 2002 No. 563, eff. 12-1-02; CR 04-005: am. (21) (c) Register October 2004 No. 586, eff. 11-1-04.

subch. II of ch. ATCP 127 Subchapter II — Telephone Solicitations

ATCP 127.02 ATCP 127.02 Definitions. In this subchapter:

ATCP 127.02(1) (1) “Caller identification information" means information provided by a caller identification service regarding the telephone number, name, or other information regarding the seller originating a telephone solicitation.

ATCP 127.02(2) (2) “Caller identification service" means any service or device designed to provide the user of the service or device with the telephone number, name, or other information regarding the origination of a telephone solicitation.

ATCP 127.02(3) (3) “Telephone solicitation" means a solicitation, under s. ATCP 127.01 (22), that a seller makes to a consumer by telephone, videoconferencing, or other interactive electronic voice communications.

ATCP 127.02(4) (4) “Telephone transaction" means any of the following:

ATCP 127.02(4)(a) (a) A telephone solicitation.

ATCP 127.02(4)(b) (b) Purchase contracts and other dealings that result from a telephone solicitation.

ATCP 127.02 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99; CR 12-036: renum. (1), (2) to be (3), (4), cr. (1), (2) Register May 2013 No. 689, eff. 6-1-13.

ATCP 127.04 ATCP 127.04 Opening disclosures.

ATCP 127.04(1) (1) Disclosures required. A seller making a telephone solicitation shall disclose all of the following to the consumer before asking any questions or making any statements other than an initial greeting:

ATCP 127.04(1)(a) (a) The name of the principal seller.

ATCP 127.04 Note Note: For example, a telemarketing firm making solicitations on behalf of another company must disclose the name of the company for which it is acting as agent. The telemarketing firm may also disclose its own identity, but is not required to do so.