Chapter ATCP 127

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.

ATCP 127.81 ATCP 127.81 Telephone solicitors; registration.

ATCP 127.81(1) (1) Registration required.

ATCP 127.81(1)(a) (a) No person may employ or contract with any individual to make telephone solicitations to covered telephone customers unless one of the following applies:

ATCP 127.81(1)(a)1. 1. That person is currently registered with the department under this section. This registration covers telephone solicitations made by individuals acting as employees or agents of the registrant.

ATCP 127.81(1)(a)2. 2. The telephone solicitations are covered by a registration under par. (b).

ATCP 127.81(1)(b) (b) A person who sells property, goods, or services may register under this section on behalf of a person who employs or contracts with individuals to make telephone solicitations promoting the purchase of property, goods, or services from the registrant. This registration covers telephone solicitations that those individuals make for that purpose. It does not cover telephone solicitations promoting the purchase of property, goods, or services from persons other than the registrant.

ATCP 127.81 Note Note: For example, an insurance company may register under par. (b) on behalf of a self-employed insurance agent whose employees telemarket that company’s insurance. But that registration does not cover the agent’s employees when they telemarket another company’s insurance.

ATCP 127.81(1)(c) (c) No individual may make a telephone solicitation to a covered telephone customer unless the telephone solicitation is covered by a registration under this section.

ATCP 127.81(2) (2) Annual registration. To register under this section, a person shall complete an annual registration form provided by the department. The registrant shall file, with the registration form, all quarterly fee installments required under sub. (3m). The registration form shall include all the following:

ATCP 127.81(2)(a) (a) The registrant’s correct legal name, and all trade names under which the registrant does business.

ATCP 127.81(2)(b) (b) The registrant’s principal business address and telephone number. The business address shall include street address, zip code, state or province, and nation.

ATCP 127.81(2)(c) (c) The registrant’s federal tax identification (FEIN) number.

ATCP 127.81(2)(d) (d) The name and address of the registrant’s registered agent in this state, if any.

ATCP 127.81(2)(e) (e) The name and address of a person who will accept service of process on behalf of the registrant, if other than a registered agent under par. (d).

ATCP 127.81(2)(f) (f) The name, address, and telephone number of a person who may respond, on behalf of the registrant, to department notices and inquiries.

ATCP 127.81(2)(g) (g) The number of telephone lines that will be used to make telephone solicitations under the registration.

ATCP 127.81(2)(h) (h) The telephone number assigned to each telephone line counted under par. (g).

ATCP 127.81(2)(i) (i) The number of individuals who will make telephone solicitations under the registration. The registrant shall provide the names of the individuals if the department requests those names. A person who registers under sub. (1) (b) on behalf of another person shall identify that other person.

ATCP 127.81(2)(j) (j) The registrant’s valid subscription access number (SAN) for the national do-not-call registry.

ATCP 127.81(3) (3) Fees. A person registering under sub. (2) shall pay the following annual fees, or an annual fee of $20,000, whichever is less:

ATCP 127.81(3)(a) (a) A basic annual registration fee of $700 for the first year of registration, and $500 for each subsequent year.

ATCP 127.81(3)(b) (b) A supplementary annual fee of $75 for each telephone line identified under sub. (2) (g). This fee does not apply if the registrant identifies fewer than 4 telephone lines under sub. (2) (g).

ATCP 127.81(3m) (3m) Quarterly installments. A registrant shall pay the annual fees under sub. (3) in quarterly installments, as follows:

ATCP 127.81(3m)(a) (a) The first quarterly installment is due by the first day of the registration year, or on the date of initial registration, whichever is later.

ATCP 127.81(3m)(b) (b) The second quarterly installment is due on March 1 of the registration year, or on the date of initial registration, whichever is later.

ATCP 127.81(3m)(c) (c) The third quarterly installment is due on June 1 of the registration year, or on the date of initial registration, whichever is later.

ATCP 127.81(3m)(d) (d) The fourth quarterly installment is due on September 1 of the registration year, or on the date of initial registration, whichever is later.

ATCP 127.81(4) (4) Registration expires. A registration under this section expires on November 30 of each year.

ATCP 127.81(5) (5) Reduction or waiver of quarterly installments. The department may reduce or waive one or more quarterly installments under sub. (3m) if the department’s projected fiscal-year-end cash balance in the appropriation under s. 20.115 (8) (jm), Stats., exceeds the department’s projected fiscal year expenditures from that appropriation during that fiscal year by at least 15%. A reduction or waiver, if any, shall apply to all registrants. A reduction, if any, shall be a uniform percentage reduction in the quarterly installment that a registrant would otherwise pay. A reduction or waiver of a quarterly installment reduces, by the amount of that reduction or waiver, the annual fee required under sub. (3).

ATCP 127.81(6) (6) Updated information. A registrant shall do all the following whenever there is a material change in the information provided under sub. (2) during a registration year:

ATCP 127.81(6)(a) (a) Notify the department of the change.

ATCP 127.81(6)(b) (b) Pay any additional fees owed for that registration year as a result of the change.

ATCP 127.81 History History: CR 02-036: cr. Register November 2002 No. 563, eff. 12-1-02; CR 10-045: am. (1) (a), (c) Register December 2010 No. 660, eff. 1-1-11; EmR1413: emerg. r. and recr. (2) (j), r. (3) (c) to (e), eff. 8-1-14; CR14-050: r. and recr. (2) (j), r. (3) (c) to (e) Register April 2015 No. 712, eff. 5-1-15.

ATCP 127.82 ATCP 127.82 Do-not-call registry.

ATCP 127.82(1) (1) Obtaining the registry. Registered telephone solicitors must obtain and use a current state do-not-call registry from the national do-not-call registry website at least once every 31 days.

ATCP 127.82 Note Note: The state do-not-call registry can be obtained at this website http://telemarketing.donotcall.gov/. Registration with the FTC and a valid Subscriber Access Number are required.

ATCP 127.82(2) (2) Solicitations prohibited. No person may make a telephone solicitation, either directly or through an employee or agent, to a covered telephone customer whose telephone number appears on the current state do-not-call registry. A telephone solicitation made in violation of this subsection does not, by itself, result in a monetary loss for which a current telephone customer may seek recovery under s. 100.20 (5), Stats., unless that customer sustains an actual monetary loss as a result of another violation of this chapter.

ATCP 127.82(3) (3) State do-not-call registry not open to public inspection. The department may not release a state do-not-call registry, except that the department may release a state do-not-call registry as necessary to enforce this subchapter, or to comply with a subpoena or judicial process, subject to any protective orders that may be necessary to ensure the confidentiality of the list.

ATCP 127.82 History History: CR 02-036: cr. Register November 2002 No. 563, eff. 12-1-02; CR 10-045: am. (1), (2), (3) (a), (b), (6) Register December 2010 No. 660, eff. 1-1-11; EmR1413: emerg. r. and recr. (title) and (1), am. (2), r. (3) to (7), r. and recr. (8) eff. 8-1-14; CR14-050: r. and recr. Register April 2015 No. 712, eff. 5-1-15.

ATCP 127.83 ATCP 127.83 Telephone solicitation practices.

ATCP 127.83(1) (1) Persons making telephone solicitations shall comply with applicable requirements in subchapter II.

ATCP 127.83(2) (2) No person may do any of the following:

ATCP 127.83(2)(a) (a) Make a telephone solicitation in violation of s. ATCP 127.81 or 127.82.

ATCP 127.83(2)(b) (b) Use an electronically prerecorded message in a telephone call for the purpose of encouraging a covered or noncovered telephone customer to purchase property, goods, or services, without first obtaining a written agreement that contains the telephone number and signature of the customer to be called. The agreement shall disclose in writing that the customer is not required to sign the agreement as a condition of making a purchase and, by signing the agreement, the customer authorizes telemarketing calls from that person. This paragraph does not apply if that person meets the provisions of s. ATCP 127.80 (10) (a) or (b).

ATCP 127.83 Note Note: A written agreement and disclosures may be in an electronic form as provided in s. 137.15, Stats.

ATCP 127.83(2)(c) (c) Make a telephone solicitation to a noncovered telephone customer if the noncovered telephone customer has notified the person by mail including electronic mail that the noncovered telephone customer does not wish to receive telephone solicitations.

ATCP 127.83(2)(d) (d) Require, instruct, or authorize any person to violate this subchapter, or knowingly facilitate any person’s violation of this subchapter.

ATCP 127.83(2)(e) (e) Use caller-ID blocking when making a telephone solicitation.

ATCP 127.83(2)(f) (f) Falsify any information required under this subchapter.

ATCP 127.83(3) (3) A person making a telephone solicitation to a covered telephone customer shall give the call recipient, at the call recipient’s request, the number of the registration under s. ATCP 127.81 that covers the telephone solicitation.

ATCP 127.83(4) (4) A person making a telephone solicitation to a noncovered telephone customer shall give the call recipient, at the call recipient’s request, a mailing address or email address to which the noncovered telephone customer may submit a written notice under sub. (2) (c). The person shall provide the mailing address or email address within 10 days after the call recipient requests it.

ATCP 127.83 History History: CR 02-036: cr. Register November 2002 No. 563, eff. 12-1-02; CR 10-045: am. (2) (b), (c), (3), (4) Register December 2010 No. 660, eff. 1-1-11; CR14-050: am. (2) (b), (c), (4) Register April 2015 No. 712, eff. 5-1-15.

ATCP 127.84 ATCP 127.84 Record keeping.

ATCP 127.84(1) (1) Records required. Persons who employ or contract with individuals to make telephone solicitations shall keep all of the following records:

ATCP 127.84(1)(a) (a) The telephone numbers and SMS accesses to make telephone solicitations.

ATCP 127.84(1)(b) (b) Each written agreement provided pursuant to s. ATCP 127.80 (10) (c) and s. ATCP 127.83 (2) (b).