Wisconsin Legislature: ATCP 127.02(4)(a)

(17) “Purchase” means to buy or lease consumer goods or services.

(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:

(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.

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

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.

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

(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.

(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:

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

(b) An employee or agent of a seller.

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.

(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:

(a) A mass advertisement.

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

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

(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.

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.”

(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.

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.

(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.

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.

Subchapter II — Telephone Solicitations

ATCP 127.02 Definitions. In this subchapter:

(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.

(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.

(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.

(4) “Telephone transaction” means any of the following:

(a) A telephone solicitation.

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

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 Opening disclosures.

(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:

(a) The name of the principal seller.

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.

(b) The name of the individual making the telephone solicitation.

Note: For example, if Mary Smith makes telephone solicitations for the ABC Company, Smith must disclose her individual name. Under sub. (3) (b), Smith may use a fictitious name which uniquely identifies her if the ABC Company keeps a record of that uniquely identifying fictitious name.

(d) The nature of the goods or services which the seller is offering or promoting.

(2) Fictitious names.

(a) A seller may not use any fictitious name under sub. (1) (a) or s. ATCP 127.06 (1) (d), except that a seller may use a trade name if all of the following apply:

1. The seller is widely known by and consistently does business under that name.

2. The name does not have the tendency or capacity to confuse or mislead the consumer as to the seller’s true identity.

(b) An individual making a telephone solicitation as an employee or agent of a seller may disclose a fictitious individual name under sub. (1) (b) if all of the following apply:

1. No other individual making telephone solicitations for the same seller uses the same fictitious name.

2. The seller for whom the individual is making the telephone solicitation keeps records under s. ATCP 127.18 (1) (d) which correlate the fictitious name with the actual name and address of the individual seller.

Note: Subsection (2) (b) balances the needs of consumers against the privacy interests of individuals employed to make solicitations on behalf of a seller.

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

ATCP 127.06 Disclosures prior to sale.

(1) Disclosures required. In a telephone transaction, a seller shall disclose all of the following to a consumer before the consumer enters into any purchase contract, and before the seller takes the consumer’s credit card number or accepts any payment from the consumer:

(a) The nature and quantity of consumer goods or services included in the sale.

(b) The total cost to purchase and receive the consumer goods or services.

(c) All material terms and conditions affecting the sale, receipt, or use of the consumer goods or services, including credit terms if any.

Note: Consumer credit disclosures under par. (c) must comply with applicable requirements under ch. 422, Stats., and federal law.

(d) The name of the principal seller.

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.

(e) At least one of the following:

1. The principal seller’s mailing address.

2. A local or toll-free telephone number, answered during normal business hours, at which the consumer may contact the principal seller and obtain the principal seller’s address.

(f) The seller’s policy related to refunds, cancellations, exchanges, or repurchases if any of the following apply:

1. The seller has a policy that prevents or substantially limits refunds, cancellations, exchanges, or repurchases.

2. The seller makes any claim or representation regarding refunds, cancellations, exchanges, or repurchases.

(2) Form of disclosure. A seller shall make the disclosures under sub. (1) in writing, except that a seller may make the disclosures orally if at least one of the following applies:

(a) The seller confirms the disclosures in writing at or before the time the seller first delivers the consumer goods or services to the consumer, and before the seller submits any credit card sales draft for payment or takes any other payment from the consumer.

(b) The seller does both of the following in writing at or before the time the seller first delivers consumer goods or services to the customer:

1. Confirms the oral disclosures.

2. Discloses, in substance, that the consumer may cancel the sale after the first delivery and obtain a full refund. The seller may specify a cancellation deadline, provided that the deadline is at least 7 days after the first delivery.

(3) Language other than English.

(a) If the primary language used in a telephone solicitation is not English, the seller shall make the disclosures under sub. (1) in the language primarily used.

(b) If the primary language used in a telephone transaction is not English, every written agreement signed by the consumer shall be in English and the language primarily used.

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

ATCP 127.08 Prize promotions.

(1) Illegal lotteries. In a telephone transaction, no seller may use a prize promotion that violates s. 945.02 (3), Stats.

(2) Prize notice; requirements. In a telephone transaction, no seller may use a prize promotion that violates s. 100.171, Stats.

(3) Prize promotions; misrepresentations. No seller may misrepresent the material terms of a prize promotion used in a telephone transaction.

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

ATCP 127.10 Unauthorized payment. No seller in a telephone transaction may obtain or submit for payment any check, draft, or other negotiable instrument drawn on a consumer’s account without that consumer’s express, verifiable authorization. The following authorizations are considered verifiable:

(1) An express written authorization. Express written authorization may include the consumer’s signature on the check, draft, or negotiable instrument.

(2) An express oral authorization if all of the following apply:

(a) The oral authorization is tape recorded and made available upon request to the consumer’s bank.

(b) The oral authorization clearly authorizes payment for the goods and services offered to the consumer.

1. The date and amount of the check, draft, or instrument.

2. The payor’s name.

3. The number of payments, if more than one.

4. A telephone number for consumer inquiries that is answered during normal business hours.

5. The date of the consumer’s oral authorization.

(3) An authorization which the seller confirms in writing, provided that all of the following apply: