Chapter ATCP 127

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.

ATCP 127.04(1)(b) (b) The name of the individual making the telephone solicitation.

ATCP 127.04 Note 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.

ATCP 127.04(1)(c) (c) That the seller is offering or promoting the sale of consumer goods or services.

ATCP 127.04(1)(d) (d) The nature of the goods or services which the seller is offering or promoting.

ATCP 127.04(2) (2) Fictitious names.

ATCP 127.04(2)(a) (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:

ATCP 127.04(2)(a)1. 1. The seller is widely known by and consistently does business under that name.

ATCP 127.04(2)(a)2. 2. The name does not have the tendency or capacity to confuse or mislead the consumer as to the seller’s true identity.

ATCP 127.04(2)(b) (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:

ATCP 127.04(2)(b)1. 1. No other individual making telephone solicitations for the same seller uses the same fictitious name.

ATCP 127.04(2)(b)2. 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.

ATCP 127.04 Note Note: Subsection (2) (b) balances the needs of consumers against the privacy interests of individuals employed to make solicitations on behalf of a seller.

ATCP 127.04 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99.

ATCP 127.06 ATCP 127.06 Disclosures prior to sale.

ATCP 127.06(1) (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:

ATCP 127.06(1)(a) (a) The nature and quantity of consumer goods or services included in the sale.

ATCP 127.06(1)(b) (b) The total cost to purchase and receive the consumer goods or services.

ATCP 127.06(1)(c) (c) All material terms and conditions affecting the sale, receipt, or use of the consumer goods or services, including credit terms if any.

ATCP 127.06 Note Note: Consumer credit disclosures under par. (c) must comply with applicable requirements under ch. 422, Stats., and federal law.

ATCP 127.06(1)(d) (d) The name of the principal seller.

ATCP 127.06 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.

ATCP 127.06(1)(e) (e) At least one of the following:

ATCP 127.06(1)(e)1. 1. The principal seller’s mailing address.

ATCP 127.06(1)(e)2. 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.

ATCP 127.06(1)(f) (f) The seller’s policy related to refunds, cancellations, exchanges, or repurchases if any of the following apply:

ATCP 127.06(1)(f)1. 1. The seller has a policy that prevents or substantially limits refunds, cancellations, exchanges, or repurchases.

ATCP 127.06(1)(f)2. 2. The seller makes any claim or representation regarding refunds, cancellations, exchanges, or repurchases.

ATCP 127.06(2) (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:

ATCP 127.06(2)(a) (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.

ATCP 127.06(2)(b) (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:

ATCP 127.06(2)(b)1. 1. Confirms the oral disclosures.

ATCP 127.06(2)(b)2. 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.

ATCP 127.06(3) (3) Language other than English.

ATCP 127.06(3)(a) (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.

ATCP 127.06(3)(b) (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.

ATCP 127.06 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99.

ATCP 127.08 ATCP 127.08 Prize promotions.

ATCP 127.08(1) (1) Illegal lotteries. In a telephone transaction, no seller may use a prize promotion that violates s. 945.02 (3), Stats.

ATCP 127.08(2) (2) Prize notice; requirements. In a telephone transaction, no seller may use a prize promotion that violates s. 100.171, Stats.

ATCP 127.08(3) (3) Prize promotions; misrepresentations. No seller may misrepresent the material terms of a prize promotion used in a telephone transaction.

ATCP 127.08 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99.

ATCP 127.10 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:

ATCP 127.10(1) (1) An express written authorization. Express written authorization may include the consumer’s signature on the check, draft, or negotiable instrument.

ATCP 127.10(2) (2) An express oral authorization if all of the following apply:

ATCP 127.10(2)(a) (a) The oral authorization is tape recorded and made available upon request to the consumer’s bank.

ATCP 127.10(2)(b) (b) The oral authorization clearly authorizes payment for the goods and services offered to the consumer.

ATCP 127.10(2)(c) (c) The oral authorization clearly indicates that the consumer received information specifying all of the following:

ATCP 127.10(2)(c)1. 1. The date and amount of the check, draft, or instrument.

ATCP 127.10(2)(c)2. 2. The payor’s name.

ATCP 127.10(2)(c)3. 3. The number of payments, if more than one.

ATCP 127.10(2)(c)4. 4. A telephone number for consumer inquiries that is answered during normal business hours.

ATCP 127.10(2)(c)5. 5. The date of the consumer’s oral authorization.

ATCP 127.10(3) (3) An authorization which the seller confirms in writing, provided that all of the following apply:

ATCP 127.10(3)(a) (a) The seller sends the written confirmation to the consumer before the seller submits the check, draft, or other negotiable instrument for payment.

ATCP 127.10(3)(b) (b) The written confirmation includes all of the following information:

ATCP 127.10(3)(b)1. 1. The date and amount of the check, draft, or instrument.

ATCP 127.10(3)(b)2. 2. The payor’s name.

ATCP 127.10(3)(b)3. 3. The number of payments, if more than one.

ATCP 127.10(3)(b)4. 4. A telephone number for consumer inquiries that is answered during normal business hours.

ATCP 127.10(3)(b)5. 5. The date of the consumer’s authorization.

ATCP 127.10(3)(b)6. 6. A procedure by which the consumer can obtain a refund from the seller if the written confirmation is inaccurate.

ATCP 127.10 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99.

ATCP 127.12 ATCP 127.12 Credit card laundering.

ATCP 127.12(1) (1) No merchant may present to or deposit into a credit card system for payment, or cause another person to present to or deposit into a credit card system for payment, any credit card sales draft generated by a telephone transaction that is not a sale by that merchant to the holder of that credit card.