Chapter ATCP 127

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.

ATCP 127.12(2) (2) No person may employ, solicit, or cause a merchant to violate sub. (1).

ATCP 127.12(3) (3) No seller engaged in a telephone 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 127.12 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99.

ATCP 127.14 ATCP 127.14 Misrepresentations. No seller may do any of the following, directly or by implication, in a telephone transaction:

ATCP 127.14(1) (1) Misrepresent a seller’s identity, affiliation, location, or characteristics.

ATCP 127.14(2) (2) Misrepresent the nature, purpose, or intended length of a solicitation.

ATCP 127.14(3) (3) Misrepresent the nature or terms of a telephone transaction, or any document related to that transaction.

ATCP 127.14(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 127.14(5) (5) Misrepresent the nature, quantity, material characteristics, performance, or efficacy of the goods or services offered or promoted by a seller.

ATCP 127.14(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 127.14(7) (7) Misrepresent the material terms of a seller’s refund, cancellation, exchange, repurchase, or warranty policies.

ATCP 127.14(8) (8) Misrepresent that a seller is offering consumer goods or services free of charge or at a reduced price.

ATCP 127.14(9) (9) Misrepresent that a seller is affiliated with, or endorsed by, any government or 3rd-party organization.

ATCP 127.14(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 127.14(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 127.14(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 127.14(12)(a) (a) The seller first makes all of the opening disclosures under s. ATCP 127.04.

ATCP 127.14(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 127.14(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 127.14(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 127.14(14) (14) Fail to disclose, in connection with every purported offer of free goods or services in a telephone 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 127.14(15) (15) Make any false, deceptive, or misleading representation to a consumer.

ATCP 127.14(16) (16) Cause, either directly or indirectly, any caller identification service to transmit or display misleading or inaccurate caller identification information.

ATCP 127.14 History History: Cr. Register, July, 1999, No. 523, eff. 8-1-99; CR 12-036: cr. (16) Register May 2013 No. 689, eff. 6-1-13.

ATCP 127.16 ATCP 127.16 Prohibited practices. No seller may do any of the following in a telephone transaction:

ATCP 127.16(1) (1) Threaten, intimidate, or harass a consumer.

ATCP 127.16(2) (2) Repeatedly or continuously cause a consumer’s telephone to ring, or repeatedly or continuously engage a consumer in telephone conversation, if the seller knows or reasonably should know that those actions will have the effect of annoying, abusing, or harassing the consumer.

ATCP 127.16(3) (3) Initiate a telephone solicitation to a consumer before 8:00 AM or after 9:00 PM without the prior consent of the consumer. Time, for purposes of this section, is the local time at the place where the consumer resides.

ATCP 127.16(4) (4) Initiate a telephone solicitation to a consumer who has previously stated that he or she does not wish to receive telephone solicitations from the seller for whom the solicitation is being made. A seller does not violate this subsection if all of the following apply:

ATCP 127.16(4)(a) (a) The seller has established and implemented clear written procedures that are reasonably designed to prevent violations.

ATCP 127.16(4)(b) (b) The seller has trained its personnel in the procedures under par. (a).

ATCP 127.16(4)(c) (c) The seller maintains a recorded list of persons who have stated that they do not wish to be called by the seller for whom solicitations are being made.

ATCP 127.16(4)(d) (d) The repeat call is the result of a good faith error, and is not the result of an intentional or systematic disregard of the prohibition under this subsection.

ATCP 127.16(5) (5) 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 127.16(6) (6) 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 127.16(6)(a) (a) Provide a notice under s. 423.203, Stats., of the consumer’s right to cancel.