Chapter ATCP 127

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.

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.