Written by attorney Gregg R. Zegarelli

Pennsylvania Telephone Solicitation

If you are tempted to increase business by soliciting people over the telephone, beware of the traps for the unwary businessperson. The Telemarketer Registration Act regulates telemarketing to residential consumers. Telemarketing is defined as "a plan, program or campaign which is conducted to induce the purchase of goods or services or to solicit contributions for any charitable purpose, charitable promotion or for or on behalf of any charitable organization, by use of one or more telephones and which involves more than one telephone call." See 73 P.S. § 2242.

The Act also proscribes various activities including telemarketing prior to 9 a.m. or after 8 p.m. and calling and/or soliciting people by telephone who have previously have stated that they do not wished to be contacted. The company must also keep a list of residential subscribers who do not wish to be contacted.

If the company obtains or submits for payment a check, draft or other form of negotiable paper drawn on a person's checking or savings account, they must first have the person's express verifiable authorization. Verifiable authorization includes express written authorization, express tape-recorded oral authorization, or written confirmation sent to the consumer prior to submitting the negotiable instrument for payment. After confirming a transaction, the telemarketer or telemarketing business must reduce any sale of goods or services to writing and receive the person's signature.

There are exceptions and the Act lists twelve activities that are not covered under the definition of a telemarketer, including soliciting sales through catalogs; soliciting without intent to complete the sale at the phone solicitation stage; book, video or record club contracts; business to business sales under certain conditions; organizations licensed, certified or registered by state or federal government; solicitation of previous purchasers; newspapers, magazines, or general circulation periodicals; retail businesses that have majority of their business in which buyers are obtaining such products or services at the seller's location; solicitation when 75% of sales are to exempt parties; sale of food/produce less than $500; and exempt or registered securities. Additionally, there are another seven activities that are excluded unless a professional fundraising counsel or a professional solicitor, who is neither registered nor exempt from registration under this act, is utilized in the particular activity. These include solicitations involving educational institutions, hospitals, public libraries, senior citizen centers, nursing homes, parent/teacher organizations, corporations audited by Department of Defense, and charitable organizations receiving less than $25,000 annually.

The Telemarketer Registration Act regulates telemarketing activities. The focus is on telephone solicitation calls that are made with the purpose of soliciting sales of any consumer goods or services. This term does not include calls in response to requests by consumers or in relation to consumers in which there is an already existing business relationship including in relation to existing debts, contracts, payments or performance. Telephone solicitation calls concerning political candidates or tax exempt entities are also excluded.

In addition to the Telemarketer Registration Act, the federal government passed legislation, commonly known as the Telephone Consumer Protection Act of 1991, which also regulates commercial speech in the form of advertising. 47 U.S.C. §227 et seq. The Act prohibits companies from sending unsolicited faxes containing advertisements. An unsolicited advertisement is defined as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." See 47 U.S.C. §227(a)(4).

The Act also prohibits automated, prerecorded calls to residences. The Act has survived challenges that it is a violation of one's First Amendment Right of Free Speech to prohibit these activities.

The Act is applicable to both intrastate and interstate fax advertisements. The majority of the States have interpreted the Act as conferring to the States exclusive subject matter jurisdiction over private actions based on the Act. In these private actions brought by individuals, a corporate officer may be held personally liable if they had direct personal involvement. See Texas v. American Blast Fax, Inc., 121 F.Supp.2d 1085 (2000 W.D. Tex).

[IMPORTANT NOTICE: Articles are for general information only. Laws vary in jurisdictions. You should not rely upon this information for your particular situation. The law in this document may not be current, and jurisdictions vary. Always consult an attorney for your particular situation.]

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