Chapter ATCP 127

ATCP 127.70(2) (2) No person may employ, solicit, or cause a merchant to violate sub. (1).

ATCP 127.70(3) (3) No seller engaged in a face-to-face transaction may, by means of a business relationship or affiliation with a merchant, obtain access to a credit card system unless that access is authorized by that merchant’s written agreement with the credit card system operator, or with an acquirer licensed or authorized by the credit card system operator.

ATCP 127.70 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99.

ATCP 127.72 ATCP 127.72 Misrepresentations. No seller may do any of the following, directly or by implication, in a face-to-face transaction:

ATCP 127.72(1) (1) Misrepresent a seller’s identity, affiliation, location, or characteristics.

ATCP 127.72(2) (2) Misrepresent the nature, purpose, or intended length of a face-to-face solicitation.

ATCP 127.72(3) (3) Misrepresent the nature or terms of a face-to-face transaction, or any document related to that transaction.

ATCP 127.72(4) (4) Misrepresent the cost of goods or services offered or promoted by a seller, or fail to disclose material costs payable by the consumer.

ATCP 127.72(5) (5) Misrepresent the nature, quantity, material characteristics, performance, or efficacy of the goods or services offered or promoted by a seller.

ATCP 127.72(6) (6) Misrepresent or fail to disclose material restrictions, limitations, or conditions on the purchase, receipt, use, or return of goods or services offered or promoted by a seller.

ATCP 127.72(7) (7) Misrepresent the material terms of a seller’s refund, cancellation, exchange, repurchase, or warranty policies.

ATCP 127.72(8) (8) Misrepresent that a seller is offering consumer goods or services free of charge or at a reduced price.

ATCP 127.72(9) (9) Misrepresent that a seller is affiliated with, or endorsed by, any government or 3rd-party organization.

ATCP 127.72(10) (10) Represent that the seller has specially selected the consumer unless the representation is true and the seller concurrently discloses to the consumer the specific basis on which the seller makes the representation. The seller may not misrepresent that basis.

ATCP 127.72(11) (11) Represent that the seller is conducting a special sales promotion, is making a special offer limited to a few persons, is making a special offer for a limited period of time, or is authorized to place the offered goods or services in a limited number of homes, unless the representation is true and the seller concurrently discloses to the consumer the specific basis on which the representation is made. The seller may not misrepresent that basis.

ATCP 127.72(12) (12) Represent that the seller is participating in a contest or conducting a survey unless the representation is true and all of the following apply:

ATCP 127.72(12)(a) (a) The seller first makes all of the opening disclosures under s. ATCP 127.62.

ATCP 127.72(12)(b) (b) The seller concurrently discloses the name of the contest or survey sponsor, and the specific terms of the contest or survey.

ATCP 127.72(12)(c) (c) The seller concurrently discloses that the seller is attempting to sell goods or services, or to obtain information to identify sales prospects, if that is the case.

ATCP 127.72(13) (13) Misrepresent any material aspect of a personal investment opportunity offered to the consumer, including any aspect such as risk, liquidity, earnings potential, or profitability.

ATCP 127.72(14) (14) Fail to disclose, in connection with every purported offer of free goods or services in a face-to-face transaction, any costs which the consumer must incur and any conditions which the consumer must meet in order to receive those free goods or services. This does not prohibit a combination offer that is covered by, and complies with, s. 100.18 (2), Stats.

ATCP 127.72(15) (15) Make any false, deceptive, or misleading representation to a consumer.

ATCP 127.72 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99.

ATCP 127.74 ATCP 127.74 Prohibited practices. No seller may do any of the following in a face-to-face transaction:

ATCP 127.74(1) (1) Threaten, intimidate, or harass a consumer.

ATCP 127.74(2) (2) Fail to leave a consumer’s premises upon request.

ATCP 127.74(3) (3) Request or receive payment for seeking or arranging a loan or extension of credit until the consumer actually receives that loan or extension of credit, if the seller has represented that efforts to obtain a loan or extension of credit would likely be successful.

ATCP 127.74(4) (4) Fail to do either of the following if the transaction qualifies as a consumer approval transaction under s. 423.201, Stats., and is not subject to s. 423.202 (4), Stats.:

ATCP 127.74(4)(a) (a) Provide a notice under s. 423.203, Stats., of the consumer’s right to cancel.

ATCP 127.74(4)(b) (b) Honor the consumer’s right to cancel under s. 423.202, Stats.

ATCP 127.74 Note Note: Under s. 423.202, Stats., a consumer may cancel a consumer approval transaction until midnight of the 3rd business day after the seller gives the consumer a required written notice of cancellation rights under s. 423.203, Stats. The consumer’s cancellation rights under s. 423.202, Stats., are in addition to any other cancellation rights which the consumer may have under contract law.

ATCP 127.74 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99.

ATCP 127.76 ATCP 127.76 Record keeping.

ATCP 127.76(1) (1) Records required. A seller engaged in face-to-face transactions shall keep all of the following records related to those transactions:

ATCP 127.76(1)(a) (a) Copies of all advertising, brochures, sales scripts, seller training materials, sales and promotional materials, and documents provided to consumers in face-to-face transactions. This paragraph does not require a seller to keep duplicate copies of substantially identical documents.

ATCP 127.76(1)(b) (b) The following records related to each prize which the seller offers or awards to consumers if the seller represents to any consumer, directly or by implication, that the prize has a value of $25 or more:

ATCP 127.76(1)(b)1. 1. An identification of the prize.

ATCP 127.76(1)(b)2. 2. The name and last known address of every consumer who received the prize.

ATCP 127.76(1)(c) (c) The name and last known address of every consumer who purchased goods or services in a face-to-face transaction with the seller, the date on which the consumer purchased those goods or services, the date on which the seller provided those goods or services to the consumer, and the amount which the consumer paid for those goods or services.

ATCP 127.76(1)(d) (d) The following information related to every individual who has made face-to-face solicitations as the seller’s employee or agent:

ATCP 127.76(1)(d)1. 1. The individual’s name, last known address, and telephone number.

ATCP 127.76(1)(d)2. 2. Every fictitious name which the individual has used when making face-to-face solicitations. No seller may permit more than one employee or contract agent to use the same fictitious name.

ATCP 127.76(1)(d)3. 3. The individual’s job title or titles.

ATCP 127.76(1)(e) (e) All written authorizations required under s. ATCP 127.68.

ATCP 127.76(2) (2) Keeping records.

ATCP 127.76(2)(a) (a) A seller shall keep each record required under sub. (1) for at least 2 years after the seller creates that record.

ATCP 127.76 Note Note: A seller may keep records required under sub. (1) in the form, manner, format, and place in which the seller would normally keep those records in the ordinary course of business.

ATCP 127.76(2)(b) (b) The department, pursuant to an investigation of possible violations of this subchapter, may ask a seller to provide copies of records under sub. (1) that are reasonably relevant to that investigation. The seller shall provide the requested copies within a reasonable time specified by the department.

ATCP 127.76 Note Note: See ss. 93.15 and 93.16, Stats.

ATCP 127.76(2)(c) (c) An agent engaged in face-to-face transactions on behalf of a principal seller need not keep duplicate copies of records which that principal seller keeps according to this section. A principal seller who contracts to have an agent keep records for the principal seller need not keep duplicate copies of records which that agent keeps according to that contract and this section. An employee need not keep duplicate copies of records that his or her employer keeps according to this section.

ATCP 127.76 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99; CR 16-012: am. (title) Register August 2016 No. 728, eff. 9-1-16.

ATCP 127.78 ATCP 127.78 Assisting violations. No person may knowingly assist any seller to engage in any activity or practice in violation of this subchapter.

ATCP 127.78 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99.

subch. V of ch. ATCP 127 Subchapter V — Telephone Solicitations; State Do-Not-Call Registry

ATCP 127.80 ATCP 127.80 Definitions. In this subchapter:

ATCP 127.80(1) (1) “Basic local exchange service” has the meaning given in s. 196.01 (1g), Stats.

ATCP 127.80 Note Note: Under s. 196.01 (1g), Stats., a “basic local exchange service” only includes service provided to residential customers.

ATCP 127.80(2) (2) “Client” means a person who has a current agreement to receive, from the telephone caller or the person on whose behalf the call is made, property, goods, or services of the type promoted by the telephone call.

ATCP 127.80(3) (3) “Commercial mobile service” has the meaning given in s. 196.01 (2i), Stats.

ATCP 127.80(4) (4) “Covered telephone customer” means an individual in this state who receives basic local exchange service or commercial mobile service from a telecommunications utility.

ATCP 127.80(5) (5) “National do-not-call registry” means the national database established by the federal trade commission under 47 USC 227 (c) (3) that consists of telephone numbers of residential customers who object to receiving telephone solicitations.

ATCP 127.80(6) (6) “Noncovered telephone customer” means a person, other than a covered customer, who receives telecommunications service from a telecommunications utility.

ATCP 127.80(6m) (6m) “Short Message Service (SMS)” means a commonly used system for transmitting data over cellular telephone networks.

ATCP 127.80(6r) (6r) “State do-not-call registry” means the portion of the national do-not-call registry that consists of numbers with Wisconsin area codes.

ATCP 127.80(7) (7) “Telephone call” means a voice communication over any part of the electromagnetic spectrum to customer premises equipment or through the use of commercial mobile service.

ATCP 127.80 Note Note: If a telecommunications provider initiates a voice communication with a customer during a telephone conversation between the customer and a third party, the telecommunications provider has initiated a “telephone call” as that term is used in this subchapter.

ATCP 127.80(8) (8) “Telephone line” means a circuit or channel, including a voice grade equivalent channel, that is derived from a line, cable, or digital facility, and that may be used to make a telephone call or send a text message.

ATCP 127.80(9) (9) “Telecommunications service” has the meaning given in s. 196.01 (9m), Stats.

ATCP 127.80(10) (10) “Telephone solicitation” means an unsolicited telephone call or text message for the purpose of encouraging the recipient to buy property, goods, or services, or that is part of a plan or scheme to encourage the recipient to buy property, goods, or services. “Telephone solicitation” does not include any of the following:

ATCP 127.80(10)(a) (a) A telephone call or text message encouraging the recipient to buy property, goods, or services from a nonprofit organization if all of the following apply:

ATCP 127.80(10)(a)1. 1. The nonprofit organization complies with subch. II of ch. 202, Stats., if applicable.

ATCP 127.80(10)(a)2. 2. Sale proceeds, if any, are exempt from Wisconsin sales tax and federal income tax.

ATCP 127.80 Note Note: The definition of “telephone solicitation” applies to phone calls promoting sales, not charity donations. But it may cover charity solicitations that are really part of a plan or scheme to sell property, goods, or services. Subchapter II of ch. 202, Stats., regulates charitable solicitations.

ATCP 127.80 Note Telephone calls promoting sales by nonprofit organizations are exempt if the sale proceeds are exempt from Wisconsin sales tax and federal income tax. Section 77.54 (7m), Stats., defines the scope of the Wisconsin sales tax exemption for sales by nonprofit organizations. Federal income tax laws require an otherwise exempt nonprofit organization to pay income tax on “unrelated business taxable income” as defined in 26 CFR 1.512(a)-1.

ATCP 127.80(10)(b) (b) A telephone call or text message made by an individual acting on his or her own behalf, and not as an employee or agent for any other person. This exemption does not apply to a person that calls or sends a text message who does any of the following:

ATCP 127.80(10)(b)1. 1. Sells or promotes the sale of property, goods, or services for another person.

ATCP 127.80 Note Note: For example, self-employed insurance agents are not exempt from this subchapter when they or their employees make telephone calls to promote the sale of insurance policies offered by insurance companies. But an insurance company may register under s. ATCP 127.81(1)(b) on behalf of self-employed insurance agents and their employees who telemarket the company’s insurance.

ATCP 127.80(10)(b)2. 2. Sells or promotes the sale of goods that the person who calls or sends a text message buys from another person who controls or limits the sales methods of the person who calls or sends a text message.

ATCP 127.80(10)(c) (c) A telephone call or text message made in response to the recipient’s affirmative request for that call or text message.

ATCP 127.80 Note Note: A failure to respond to a negative option (“we will call unless you say no”) is not an “affirmative request” under par. (c).

ATCP 127.80(10)(d) (d) A telephone call or text message made to a current client.

ATCP 127.80 Note Note: See definition of “client” under sub. (2).

ATCP 127.80(10)(e) (e) A telephone call or text message made to a number listed in the current local business telephone directory.

ATCP 127.80(10)(f) (f) One telephone call or text message to determine whether a former client mistakenly allowed a contractual relationship to lapse.

ATCP 127.80(10)(g) (g) A telephone call or text message made to determine a former client’s level of satisfaction, unless the call or text message is part of a plan or scheme to encourage the former client to purchase property, goods, or services.

ATCP 127.80(10)(i) (i) A telephone call or text message, made to a party to an existing contract, that is necessary to complete the contract.

ATCP 127.80(11) (11) “Telecommunications utility” has the meaning given in s. 196.01 (10), Stats. “Telecommunications utility” includes an “alternative telecommunication utility” as defined in s. 196.01 (1d), Stats., and a commercial mobile radio service provider as defined in s. 196.01 (2g), Stats.

ATCP 127.80(12) (12) “Text message” means an electronic text or graphic message sent to a cellular telephone, pager, or similar wireless device that is equipped with SMS or similar capability. “Text message” includes messages originated using SMS, e-mail, or similar electronic communication.

ATCP 127.80 History History: CR 02-036: cr. Register November 2002 No. 563, eff. 12-1-02; CR 10-045: renum. (3), (5), (6), (9) to be (6), (4), (7), (10) and am., cr. (3), renum. (4), (7), (8) to be (5), (8), (9) Register December 2010 No. 660, eff. 1-1-11; (10), as renumbered, is renumbered (11) under s. 13.92 (4) (b) 1., Stats., Register December 2010 No. 660; CR: 12-036: cr. (6m), am. (8), (10) (intro.), (a) (intro.), (b) (intro.), 2., (c) to (i), cr. (12) Register May 2013 No. 689, eff. 6-1-13; correction in (10) (a) 1. made under s. 13.92 (4) (b) 7., Stats., Register May 2013 No. 689; correction in (10) (a) 1. made under s. 13.92 (4) (b) 7., Stats., Register December 2013 No. 696; EmR1413: emerg. r. and recr. (5), cr. (6r), am. (10) (c), eff. 8-1-14; CR14-050: am. r. and recr. (5), cr. (6r), am. (10) (c) Register April 2015 No. 712, eff. 5-1-15.