State of Illinois
91st General Assembly
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91_SB0349sam002

 










                                           LRB9101743SMdvam06

 1                    AMENDMENT TO SENATE BILL 349

 2        AMENDMENT NO.     .  Amend Senate Bill 349,  AS  AMENDED,
 3    by replacing the title with the following:
 4        "AN ACT regarding telemarketing."; and

 5    by  replacing  everything  after the enacting clause with the
 6    following:

 7        "Section 1.  Short title.  This Act may be cited  as  the
 8    Telemarketing Registration and Fraud Prevention Act.

 9        Section 5.  Definitions.  As used in this Act, unless the
10    context otherwise requires:
11        "Emergency  telephone  number" means any telephone number
12    that accesses or calls a  fire  department,  law  enforcement
13    agency,  ambulance,  hospital, medical center, poison control
14    center, rape crisis center, suicide prevention center, rescue
15    service, or the 911 emergency access number provided  by  law
16    enforcement agencies and police departments.
17        "Investment   opportunity"  means  anything  tangible  or
18    intangible, that is offered for sale, sold, or  traded  based
19    wholly  or  in  part  on  representations,  either express or
20    implied, about past, present, or future  income,  profit,  or
21    appreciation.
 
                            -2-            LRB9101743SMdvam06
 1        "Person"  includes  any individual, group of individuals,
 2    firm, association, corporation, partnership,  joint  venture,
 3    sole proprietorship, or any other business entity.
 4        "Prize" means anything offered or purportedly offered and
 5    given or purportedly given to a person by chance.
 6        "Prize  promotion"  means  a sweepstakes or other game of
 7    chance  or  an  oral   or   written,   express   or   implied
 8    representation  that  a  person has won, has been selected to
 9    receive, or is eligible  to  receive  a  prize  or  purported
10    prize.
11        "Seller"  means  any  person  who,  in  connection with a
12    telemarketing transaction, provides, offers  to  provide,  or
13    arranges  for  others  to  provide  goods  or services to the
14    customer in exchange for consideration.
15        "Solicitation" means a written or  oral  notification  or
16    advertisement that meets any one of the following terms:
17             (1)  The    notification    or    advertisement   is
18        transmitted by or on behalf of  the  seller  and  by  any
19        printed,   audio,   video,   cinematic,   telephone,   or
20        electronic means.
21             (2)  In  the case of a notification or advertisement
22        other  than  by  telephone,  either  of   the   following
23        conditions is met:
24                  (A)  The   notification   or  advertisement  is
25             followed by a telephone call from a telemarketer; or
26                  (B)  The notification or advertisement  invites
27             a  response by telephone, and through that response,
28             a telemarketer attempts to make a sale of  goods  or
29             services.
30        "Telemarketer"  means  any person who, in connection with
31    telemarketing,  initiates  telephone  calls  to  or  receives
32    telephone calls from a person in this State.   "Telemarketer"
33    also  means  any  person  located  within  this State who, in
34    connection  with   telemarketing,   initiates   or   receives
 
                            -3-            LRB9101743SMdvam06
 1    telephone  calls.  "Telemarketer" includes but is not limited
 2    to, any person who is an owner, operator, officer,  director,
 3    or partner to the management activities of a business.
 4        "Telemarketing"  means a plan, program, or campaign which
 5    is conducted to induce the purchase of goods or  services  by
 6    use  of  one  or more telephones and which involves more than
 7    one telephone call.  "Telemarketing"  may  also  include  the
 8    notification  of  a  prize  award.  "Telemarketing"  does not
 9    include political fundraising.

10        Section 10.  Exemptions.  For  purposes  of  registration
11    and bonding under Sections 15 and 20, "telemarketer" does not
12    include any of the following:
13        (1)  Any  securities, commodities, or investment brokers,
14    dealers, or investment advisers or associates of  securities,
15    commodities,  or  investment  brokers, dealers, or investment
16    advisers subject to license or registration by the Securities
17    and  Exchange  Commission,   the  National   Association   of
18    Securities Dealers, or any other self regulatory organization
19    as defined by 15 U.S.C. 78l, or by an agency of this State or
20    any other state, who are soliciting within the scope of their
21    license or registration.
22        (2)  A  person  engaged  in solicitation for a religious,
23    charitable, political, educational,  or  other  noncommercial
24    purpose;  a  person  soliciting  for  a  domestic  or foreign
25    nonprofit corporation that is registered  with  the  Illinois
26    Secretary of State; or the Illinois Attorney General's Office
27    under the Charitable Trust Act.
28        (3)  A business making a sale to another business.
29        (4)  A   person   that  solicits  sales  by  periodically
30    publishing  and  delivering  a  catalog   of   the   person's
31    merchandise to prospective purchasers, if the catalog:
32             (A)  Contains  a written description or illustration
33        of each item offered for sale; and
 
                            -4-            LRB9101743SMdvam06
 1             (B)  Includes the business or home  address  of  the
 2        person soliciting the sale.
 3        (5)  A  person  who solicits contracts for maintenance or
 4    repair of goods previously purchased from that person or from
 5    the person on whose behalf the solicitation is made.
 6        (6)  A person soliciting a transaction regulated  by  the
 7    Commodity   Futures  Trading  Commission  if  the  person  is
 8    registered or temporarily licensed with the Commodity Futures
 9    Trading Commission under the Commodity Exchange Act (7 U.S.C.
10    1 et seq.), and the person's registration or license  is  not
11    expired, suspended, or revoked.
12        (7)  A   supervised  financial  organization  or  parent,
13    subsidiary,  or   affiliate   of   a   supervised   financial
14    organization,  or  a  licensee under the Consumer Installment
15    Loan Act.
16        (8)  A person licensed as  an  insurance  producer  under
17    Article XXXI of the Illinois Insurance Code.
18        (9)  An  insurance  company  licensed  under the Illinois
19    Insurance Code.
20        (10)  A person soliciting the sale of  services  provided
21    by  a  satellite or cable television system authorized by the
22    federal government or this State to provide services in  this
23    State.
24        (11)  A  telecommunications  carrier or its subsidiary or
25    agent, or other business, regulated by the Illinois  Commerce
26    Commission  under  Article  XIII of the Public Utilities Act,
27    including but not limited to a telecommunications carrier  as
28    defined  at  Section  13-202  of  the Public Utilities Act; a
29    federally licensed cellular telephone service partner or  its
30    agents; or a radio telecommunication service provider.
31        (12)  A  person  soliciting  business from consumers that
32    have  an  existing  business  relationship   with   or   have
33    previously  purchased  from the business enterprise for which
34    the person is soliciting.
 
                            -5-            LRB9101743SMdvam06
 1        (13)  A person operating a retail business  establishment
 2    under the same name as that used in the solicitation:
 3             (A)  Whose  goods  or  services  are  displayed  and
 4        offered for sale at the business establishment; and
 5             (B)  A  majority  of  whose  business  involves  the
 6        consumer  obtaining the goods or services at the business
 7        establishment.
 8        (14)  A person soliciting for the sale of a  magazine  or
 9    newspaper of general circulation.
10        (15)  An  issuer  or  a  subsidiary  of an issuer that is
11    authorized to offer securities for sale in this State.
12        (16)  A seller who offers:
13             (A)  A book, video, record, multimedia  club  offer,
14        contractual  plan,  or  arrangement  along with which the
15        seller provides the consumer with a form the consumer may
16        use to instruct  the  seller  not  to  ship  the  offered
17        merchandise;
18             (B)  A  book,  video, record, multimedia club offer,
19        contractual plan, or arrangement  that  is  regulated  by
20        Part  425  of  the  Federal  Trade  Commission regulation
21        concerning the use of negative option plans by sellers in
22        commerce (16 CFR 425); or
23             (C)  Books, records, videos, multimedia products, or
24        other goods for sale that are not covered by subdivisions
25        (A) or (B) of this item (16), including continuity plans,
26        subscription arrangements, standing  order  arrangements,
27        single  sales,  supplements, or series arrangements under
28        which the seller  periodically  ships  merchandise  to  a
29        consumer  who  has  consented  in  advance to receive the
30        merchandise on a periodic basis.
31        (17)  A real estate salesperson  or  broker  licensed  by
32    this State.
33        (18)  Any  person  that  has provided telemarketing sales
34    services under the same business  name  as,  and  derives  at
 
                            -6-            LRB9101743SMdvam06
 1    least   50%   of  gross  telemarketing  sales  revenues  from
 2    contracts with, persons  exempted  under  this  Section  from
 3    registration requirements.
 4        (19)  A  person  soliciting  the  sale  of  food  or food
 5    products if the solicitation is not intended to and does  not
 6    result in a sale in excess of $100 to a single address.
 7        (20)  A  public  utility or its subsidiary, affiliate, or
 8    agent, or other business regulated by the  Illinois  Commerce
 9    Commission under the Public Utilities Act.

10        Section 15.  Registration of telemarketers.
11        (a)    No  person  shall  act as a seller or telemarketer
12    without first having registered with  the  Attorney  General.
13    The  initial  application  for  registration shall be made at
14    least 60 days prior to offering consumer  goods  or  services
15    and  an  application  for  renewal shall be made on an annual
16    basis thereafter.
17        (b)    The  Attorney  General's   Office   shall   charge
18    reasonable application and renewal fees for administration of
19    the  registration requirements pursuant to this Section.  All
20    fees collected under this Section shall be deposited  in  the
21    State   Treasury    in   the   special   fund  known  as  the
22    Telemarketing Fraud Enforcement Fund and shall be  used  only
23    for the purposes described in Section 75.  The certificate of
24    registration  or  registration  renewal shall expire one year
25    after the date on which it is issued.   The  application  and
26    renewal  fees  and  process  shall be established through the
27    promulgation   of   a   rule   pursuant   to   the   Illinois
28    Administrative Procedure Act.
29        (c)   The application for a certificate  of  registration
30    or  renewal  shall  include,  but  not  be  limited  to,  the
31    following information:
32             (1)  The  true name, date of birth, driver's license
33        number, social  security  number  or  tax  identification
 
                            -7-            LRB9101743SMdvam06
 1        number,   business  address,  and  home  address  of  the
 2        applicant (post office boxes or commercial mail receiving
 3        agencies are not permitted), including  each  name  under
 4        which  the  applicant  intends  to  engage  in  telephone
 5        solicitations.
 6             (2)  Each  business  or occupation engaged in by the
 7        applicant during the 2 years  immediately  preceding  the
 8        date  of  the  application, and the location of each such
 9        business or occupation.
10             (3)  Whether, in a court of  competent  jurisdiction
11        in this State, any other state, or the United States, any
12        principal  or  manager has been convicted of, has pleaded
13        guilty to, has entered a plea of no contest  for,  or  is
14        being   prosecuted   by  indictment  or  information  for
15        racketeering,  any  violation   of   state   or   federal
16        securities law, or a theft offense.
17             (4)  Whether,  in  any  jurisdiction, there has been
18        entered against the applicant an injunction, a  temporary
19        restraining   order,   or  a  final  judgment  or  order,
20        including an agreed judgment or order,  an  assurance  of
21        voluntary  compliance,  or any similar instrument, in any
22        civil or administrative action  involving  fraud,  theft,
23        racketeering,    embezzlement,   fraudulent   conversion,
24        misappropriation of property, or any consumer  protection
25        law  or  telemarketing  law,  or  if there is any pending
26        litigation against the applicant involving these matters.
27             (5)  Whether, in any jurisdiction, the applicant has
28        been arrested for, has been  convicted  of,  has  pleaded
29        guilty  to,  has  entered  a plea of no contest to, or is
30        being prosecuted  by  indictment  or  information  for  a
31        felony and, if so, the nature of the felony.
32             (6)  Whether in a court of competent jurisdiction of
33        this  State,  any  other state, or the United States, the
34        applicant has been convicted of, has pleaded  guilty  to,
 
                            -8-            LRB9101743SMdvam06
 1        has  entered  a  plea  of  no  contest  for,  or is being
 2        prosecuted by indictment or information for engaging in a
 3        pattern of corrupt activity, racketeering, a violation of
 4        federal or state securities law, or a  theft  offense  as
 5        defined  in  Section 16-1 of the Criminal Code of 1961 or
 6        in similar law of any other state or the United States.
 7             (7)  Whether the applicant, at any time  during  the
 8        previous 7 years, has filed for bankruptcy, been adjudged
 9        bankrupt, or been reorganized because of insolvency.
10             (8)  The  true  name,  current home address, date of
11        birth, social security number, and all  others  by  which
12        known or previously known, of each of the following:
13                  (A)  Each  principal  officer, director, owner,
14             or partner of the applicant, and each  other  person
15             participating  in  or responsible for the management
16             of the applicant's business.
17                  (B)  Each  office  manager  or   other   person
18             principally responsible for each location from which
19             the applicant will do business.
20             (9)  The name and address of every institution where
21        banking  or  any  other monetary transactions are done by
22        the seller.
23             (10)  A  copy   of   all   scripts,   outlines,   or
24        presentation  material  the  applicant  will  require  or
25        suggest  be used by a salesperson when soliciting as well
26        as all sales information to be provided by the  applicant
27        to a purchaser in connection with any solicitation.

28        Section 20.  Surety bond.
29        (a)  No person shall act as a telemarketer without having
30    first  obtained a surety bond issued by a surety company that
31    holds a certificate of authority to do business in this State
32    issued by the Department  of  Insurance  under  the  Illinois
33    Insurance   Code.   With  regard  to  the  surety  bond,  the
 
                            -9-            LRB9101743SMdvam06
 1    following conditions must be met before a person may act as a
 2    telemarketer:
 3             (1)  A copy of the  bond  must  be  filed  with  the
 4        Attorney General.
 5             (2)  The bond must be in favor of any person, and of
 6        the  State for the benefit of any person, that is injured
 7        by violation of this Act or a rule adopted under this Act
 8        pursuant to the Illinois Administrative Procedure Act.
 9             (3)  The bond must be in the amount of $100,000.
10             (4)  The bond must be maintained and in  effect  for
11        at least 2 years after the date on which the telemarketer
12        ceases to engage in telephone solicitations.
13        (b)  Any  person  making  a  claim  against  the bond for
14    violation of any provision of this Act or rule adopted  under
15    this Act may maintain a civil action against the telemarketer
16    and  the  surety  company.  The surety company is liable only
17    for damages awarded under Section 70 and is  not  liable  for
18    attorney's  fees  awarded  under  Section  70.  The aggregate
19    liability of the surety company to all persons injured  by  a
20    telemarketer's  violation  of  this  Act shall not exceed the
21    amount of the bond.
22        (c)  The registration of any telemarketer shall  be  void
23    upon termination of the bond of the surety company or loss of
24    the  bond  unless,  prior to such termination, a new bond has
25    been filed with the Attorney General's Office.   The  surety,
26    for  any  cause,  may  cancel  the  bond upon giving a 60 day
27    written notice  to  the  telemarketer  and  to  the  Attorney
28    General.   Unless  the  bond  is  replaced by that of another
29    surety  before  the  expiration  of  the  60  day  notice  of
30    cancellation, the registration of the telemarketer  shall  be
31    treated  as lapsed.  For 2 years after the cancellation takes
32    effect, a person may make a claim  against  the  bond  for  a
33    violation that occurred while the bond was in effect.
34        (d)  Any  person  required  under this Act to file a bond
 
                            -10-           LRB9101743SMdvam06
 1    with a registration application may  file,  in  lieu  of  the
 2    bond,  a  certificate of deposit, in cash or government bond,
 3    in the amount of $100,000.
 4        (e)  The  Attorney   General   shall   hold   the   cash,
 5    certificate  of  deposit, or government bond for 2 years from
 6    the period the telemarketing business ceases  to  operate  or
 7    registration  lapses  in order to pay out claims made against
 8    the telemarketing business during its period of operation.

 9        Section 25.  Record keeping requirements.
10        (a)  Any telemarketer shall keep,  for  a  period  of  24
11    months  from  the  date the record is produced, the following
12    records:
13             (1)  All  substantially  different   advertisements,
14        brochures, and other promotional materials.
15             (2)  The  name  and last known address of each prize
16        recipient and the  prize  awarded  for  prizes  that  are
17        represented to have a value of $25 or more.
18             (3)  The   name  and  last  known  address  of  each
19        consumer, the goods or services purchased, the date  such
20        goods  or  services  were  shipped  or  provided, and the
21        amount paid by the consumer for the goods or services.
22             (4)  The name, last known  home  address,  telephone
23        number,   and  job  title  for  all  current  and  former
24        employees directly involved in telephone sales.
25             (5)  All  written  confirmations  required   to   be
26        provided or received under this Act.
27        (b)  In  the  event  of any dissolution or termination of
28    the  telemarketer's   business,   the   principal   of   that
29    telemarketer  shall  maintain  all  records as required under
30    this Section.  In the event of any sale, assignment, or other
31    change in ownership of the seller's business,  the  purchaser
32    shall maintain all records required under this Section.
 
                            -11-           LRB9101743SMdvam06
 1        Section 30.  Mandatory disclosures.
 2        (a)  The  telemarketer  shall  disclose promptly and in a
 3    clear and conspicuous manner to a consumer during a telephone
 4    solicitation:
 5             (1)  The identity of the seller.
 6             (2)  That the purpose of the call is to  sell  goods
 7        or services.
 8             (3)  The nature of the goods or services.
 9        (b)  Before  a  consumer  pays  for the goods or services
10    offered  for  sale  or  provides  any  financial  or  payment
11    information  to  a  telemarketer,  the   telemarketer   shall
12    disclose,  clearly  and conspicuously, the following material
13    information:
14             (1)  The total cost to purchase, receive, or use the
15        consumer goods or services that are the  subject  of  the
16        telemarketing communication.
17             (2)  The  quantity of the consumer goods or services
18        that are the subject of the telemarketing solicitation.
19             (3)  All  material  restrictions,  limitations,   or
20        conditions  to  purchase,  receive,  or  use the consumer
21        goods  or  services  that  are   the   subject   of   the
22        telemarketing solicitation.
23             (4)  All  material aspects of the nature or terms of
24        the telemarketer's  refund,  cancellation,  exchange,  or
25        repurchase policies.
26             (5)  In any prize promotion:
27                  (A)  A  statement of all material conditions to
28             receive or redeem the prize.
29                  (B)  The odds of receiving a prize, and if  the
30             odds  are not calculable in advance, the factors and
31             methods used in calculating the odds.
32                  (C)  A clear statement that the consumer is not
33             required to make any purchase  to  win  a  prize  or
34             participate  in  the  prize  promotion,  including a
 
                            -12-           LRB9101743SMdvam06
 1             statement that the consumer is not required  to  pay
 2             any shipping or handling costs.
 3                  (D)  A     clear     explanation     of     the
 4             no-purchase/no-payment  method  of  participating in
 5             the prize promotion.

 6        Section 35.  Do not call list.  It is an unlawful act  or
 7    practice  and  violation  of this Act for any telemarketer to
 8    initiate  a  telephone  solicitation  to   a   consumer   who
 9    previously  has  requested  the  telemarketer to refrain from
10    calling the consumer.  Compliance with  Section  310.4(b)  of
11    the Federal Trade Commission's Telemarketing Sales Rule shall
12    constitute compliance with this Section.

13        Section 40.  Written confirmation.
14        (a)  Except  as provided in subsection (c), (d), and (e),
15    the telemarketer shall furnish  the  consumer,  in  the  same
16    language  as that principally used in the sales presentation,
17    a written confirmation.
18        (b)  The written confirmation furnished under  subsection
19    (a)  shall be mailed using first class mail, postage prepaid,
20    no later than 10 days  after  the  telemarketing  sale.   The
21    written  confirmation  shall  be in 12 point type; shall be a
22    separate  document  for  the  purpose   of   confirming   the
23    telemarketing   sale;   and   shall   contain  the  following
24    information:
25             (1)  The name and address of the seller.
26             (2)  The total costs to purchase, receive,  or  use,
27        and  the  quantity of, any goods or services that are the
28        subject of the sale.
29             (3)  All  material  restrictions,  limitations,   or
30        conditions  to  purchase,  receive,  or  use the goods or
31        services that are the subject of the sale.
32             (4)  If the  seller  has  a  policy  of  not  making
 
                            -13-           LRB9101743SMdvam06
 1        refunds,  cancellations,  exchanges,  or  repurchases,  a
 2        statement   informing  the  customer  that  this  is  the
 3        seller's policy; or, if the seller or telemarketer  makes
 4        a  representation about a refund, cancellation, exchange,
 5        or repurchase policy, a statement of all  material  terms
 6        and conditions of the policy.
 7             (5)  A  toll-free number to call should the consumer
 8        wish to cancel the telemarketing sale.
 9        (c)  A  written  confirmation  is  not  required  if  the
10    telemarketing sale is regulated by  other laws of the State.
11        (d)  A sale is not subject to the  requirements  of  this
12    Section if the seller, at a minimum, has a policy of:
13             (1)  accepting  returns  or  cancelling  services in
14        connection with the return of unused and undamaged  goods
15        or  cancelled  services  for  a period of not less than 7
16        days after the date  of  delivery  to  the  consumer  and
17        providing  a cash refund for a cash purchase or issuing a
18        credit for a credit purchase applied to the account  that
19        was debited;
20             (2)  disclosing   the  seller's  refund  and  return
21        policy  to  the  consumer  by  telephone  or  in  writing
22        included with advertising  or  promotional  material,  or
23        with the delivery of the goods or services; and
24             (3)  restoring  payments or issuing credits pursuant
25        to subdivision (d)(1), within 30 days after the  date  on
26        which the seller receives the returned goods or notice of
27        cancellation  of  services.   A  seller  who discloses in
28        writing  that  a  sale  is   subject   to   "satisfaction
29        guaranteed", "free inspection", "a no risk guarantee", or
30        similar  words or phrases shall be considered to have met
31        the review and return for refund policy  requirements  of
32        this subsection.
33        (e)  A  written  confirmation  is  not  required  if  the
34    telemarketing  sale  results  in a written contract signed by
 
                            -14-           LRB9101743SMdvam06
 1    the consumer.

 2        Section 45.  Acts and practices not  covered  under  this
 3    Act.   The following acts and practices are not covered under
 4    this Act:
 5        (1)  Telephone calls  in  which  the  sale  of  goods  or
 6    services  is  not  completed, and payment or authorization of
 7    payment  is  not  required,  until   after   a   face-to-face
 8    presentation by the seller.
 9        (2)  Telephone calls initiated by a consumer that are not
10    the result of any telephone solicitation by a telemarketer.
11        (3)  Telephone  calls made by an autodialer as defined in
12    the Automatic Telephone Dialers Act.
13        (4) Telephone calls initiated by a consumer  in  response
14    to  a  direct  mail solicitation that clearly, conspicuously,
15    and truthfully discloses all material information  listed  in
16    subsection  (b)  of  Section  30  for any item offered in the
17    direct  mail  solicitation;  provided,  however,  that   this
18    exemption  does not apply to calls initiated by a consumer in
19    response to a direct  mail  solicitation  relating  to  prize
20    promotions,   investment  opportunities,  goods  or  services
21    described in subdivisions (a)(9) and (a)(12) of  Section  50,
22    or  direct  mail  solicitations that guarantee or represent a
23    high likelihood of success  in  obtaining  or  arranging  for
24    extensions  of  credit,  if  payment  of a fee is required in
25    advance of obtaining the extension of credit.
26        (5)  Telephone calls initiated by a consumer in  response
27    to an advertisement through any media, other than direct mail
28    solicitations; provided however, that this exemption does not
29    apply  to  calls  initiated  by  a consumer in response to an
30    advertisement relating to investment opportunities, goods, or
31    services described in  subdivisions  (a)(9)  and  (a)(12)  of
32    Section  50,  or advertisements that guarantee or represent a
33    high likelihood of success  in  obtaining  or  arranging  for
 
                            -15-           LRB9101743SMdvam06
 1    extensions  of  credit,  if  payment  of a fee is required in
 2    advance of obtaining the extension of credit.
 3        (6)  Telephone  calls  made  by   a   collection   agency
 4    registered  with  the  Department  of Professional Regulation
 5    under the Illinois Collection Agency Act.
 6        (7)  Telephone calls  related  to  the  personal  service
 7    relationship  between  a  retail business establishment and a
 8    consumer who has had or has a business relationship with that
 9    retailer.

10        Section 50.  Unlawful acts or practices.
11        (a)  It is an unlawful act or practice and a violation of
12    this Act for any telemarketer  to  engage  in  the  following
13    conduct:
14             (1)  To  obtain  a  certificate  of  registration or
15        registration renewal  through  any  false  or  fraudulent
16        representation  or make any material misrepresentation in
17        any registration or registration renewal application.
18             (2)  To fail to  maintain  a  valid  certificate  of
19        registration or registration renewal.
20             (3)  To provide inaccurate or incomplete information
21        to  the Attorney General when making an application for a
22        certificate of registration or registration renewal.
23             (4)  To misrepresent that a person is registered  or
24        that a person has a valid certificate number.
25             (5)  To  misrepresent,  directly  or by implication,
26        any of the following information:
27                  (A)  The total cost to  purchase,  receive,  or
28             use, and the quantity of, any goods or services that
29             are the subject of a solicitation.
30                  (B)  A  material  restriction,  limitation,  or
31             condition  to  purchase,  receive,  or  use goods or
32             services that are the subject of a solicitation.
33                  (C)  A  material  aspect  of  the  performance,
 
                            -16-           LRB9101743SMdvam06
 1             efficacy, nature, or  characteristics  of  goods  or
 2             services that are the subject of a solicitation.
 3                  (D)  A  material  aspect of the nature or terms
 4             of the seller's refund, cancellation,  exchange,  or
 5             repurchase policies.
 6                  (E)  A  material  aspect  of a prize promotion,
 7             including, but not limited to,  the  odds  of  being
 8             able  to receive a prize, the nature of a prize, the
 9             actual number of each prize to be awarded or  given,
10             or  that  a  purchase  or  payment  of  any  kind is
11             required to win a prize or participate  in  a  prize
12             promotion.
13                  (F)  A   material   aspect   of  an  investment
14             opportunity, including, but not  limited  to,  risk,
15             liquidity, earnings potential, or profitability.
16                  (G)  The  telemarketer's  affiliation  with  or
17             endorsement   by   any   government  or  third-party
18             organization.
19             (6)  To make a  false  or  misleading  statement  to
20        induce a consumer to pay for goods or services.
21             (7)  To  fail  to notify the Attorney General within
22        15 days if, in a court of competent jurisdiction of  this
23        State  or  any  other  state  or  the  United States, the
24        telemarketer is convicted of, pleads guilty to, or enters
25        a plea of no contest for a felony, engaging in a  pattern
26        of corrupt activity, racketeering, a violation of federal
27        or state securities law, or a theft offense.
28             (8)  To  advertise or represent that registration as
29        a telemarketer is an endorsement or approval by the State
30        or any governmental agency of the State.
31             (9)  To request or receive payment  of  any  fee  or
32        consideration for goods or services represented to remove
33        derogatory  information from or improve a person's credit
34        history, credit record, or credit rating until:
 
                            -17-           LRB9101743SMdvam06
 1                  (A)  The time frame in which  the  telemarketer
 2             has represented all of the goods or services will be
 3             provided to that person has expired; and
 4                  (B)  The  telemarketer  has provided the person
 5             with documentation in the form of a consumer  report
 6             from  a consumer reporting agency demonstrating that
 7             the promised results have been achieved, such report
 8             having been issued more  than  6  months  after  the
 9             results were achieved.
10             (10)  Obtain  or  submit for payment a check, draft,
11        or other form of negotiable paper  drawn  on  a  person's
12        checking,  savings,  bond,  or  other account without the
13        consumer's express written authorization.
14             (11)  To procure the services  of  any  professional
15        delivery,  courier,  or  other  pick-up service to obtain
16        immediate receipt and possession of a consumer's  payment
17        unless:
18                  (A)  Such service is requested by the consumer;
19             and
20                  (B)  The   consumer  is  actually  afforded  an
21             opportunity to inspect the goods or  services  prior
22             to payment.
23             (12)  To  request or receive payment in advance from
24        a consumer to recover or otherwise aid in the  return  of
25        money  or  any other item lost by the consumer in a prior
26        telemarketing transaction.
27             (13)  To  misrepresent  the  requirements  of   this
28        Section.
29             (14)  To  assist,  support,  or  provide substantial
30        assistance to any telemarketer when the seller  knows  or
31        should  know  that the telemarketer is engaged in any act
32        or practice which violates this Section or Section 30.
33             (15)  To make or cause to be made a  telephone  call
34        to any emergency telephone number.
 
                            -18-           LRB9101743SMdvam06
 1             (16)  To  request  or  receive payment of any fee or
 2        consideration in advance of obtaining  a  loan  or  other
 3        extension  of  credit when the seller or telemarketer has
 4        guaranteed or represented a high likelihood of success in
 5        obtaining or arranging  a  loan  or  other  extension  of
 6        credit for a consumer.

 7        Section  55.   Abusive  acts and practices unlawful under
 8    this Act. It is an abusive telemarketing act or practice  and
 9    a violation of this Act for any telemarketer to engage in the
10    following conduct:
11             (1)  Threaten, intimidate, or use profane or obscene
12        language.
13             (2)  Engage  any  person  repeatedly or continuously
14        with behavior  a  reasonable  person  would  deem  to  be
15        annoying, abusive, or harassing.
16             (3)  Initiate an outbound telephone call to a person
17        when  that  person  previously  has stated that he or she
18        does not wish to receive an outbound telephone call  made
19        on behalf of the telemarketer whose goods or services are
20        being offered in compliance with Section 35.
21             (4)  Engage in telemarketing to a person's residence
22        at  any  time  other than between 8 a.m. and 9 p.m. local
23        time, Monday  through  Sunday,  at  the  called  person's
24        location.

25        Section  60.  Enforcement by Attorney General.  Violation
26    of any of the provisions of this Act is an unlawful  practice
27    under  the  Consumer  Fraud  and Deceptive Business Practices
28    Act.  All remedies, penalties, and authority granted  to  the
29    Attorney  General  by  that Act shall be available to him for
30    the enforcement of this Act.

31        Section 65.  Criminal penalties.  A knowing violation  of
 
                            -19-           LRB9101743SMdvam06
 1    Section  15,  20,  25,  30,  35,  40,  50, or 55 is a Class 4
 2    felony.

 3        Section 70.  Private right of action.
 4        (a)   Any person who suffers actual damages as  a  result
 5    of  a violation of this Act committed by any other person may
 6    bring an action against  that  person.   The  court,  in  its
 7    discretion,  may  award  actual economic damages or any other
 8    relief which the court deems proper.
 9        (b)   Such action may be commenced in the county in which
10    the person against  whom  it  is  brought  resides,  has  his
11    principal  place of business, or is doing business, or in the
12    county where the transaction or any  substantial  portion  of
13    the transaction occurred.
14        (c)    In  any  action  brought  by  a  person under this
15    Section,  the  court  may  grant  injunctive   relief   where
16    appropriate and may award, in addition to the relief provided
17    in  this Section, reasonable attorney's fees and costs to the
18    prevailing party.
19        (d)   Upon commencement of any action brought under  this
20    Section,  the plaintiff shall mail a copy of the complaint or
21    other initial pleading to  the  Attorney  General  and,  upon
22    entry  of  any  judgment or order in the action, shall mail a
23    copy of the judgment or order to the Attorney General.
24        (e)   Any action for damages under this Section shall  be
25    forever  barred  unless  commenced  within  3 years after the
26    cause of action accrued; provided that, whenever  any  action
27    is  brought by the Attorney General or a State's Attorney for
28    a violation of this  Act,  the  running  of  the  statute  of
29    limitations,  with  respect  to every private right of action
30    for damages which is based in whole or in part on any  matter
31    complained  of  in  the  action  by  the  Attorney General or
32    State's Attorney, shall be suspended during the  pendency  of
33    the action, and for one year thereafter.
 
                            -20-           LRB9101743SMdvam06
 1        Section 75.  Telemarketing Fraud Enforcement Fund.  There
 2    is  hereby created in the State Treasury the Attorney General
 3    Telemarketing Fraud Enforcement Fund.   The  State  Treasurer
 4    shall  deposit in the fund registration fees paid pursuant to
 5    this Act.  Subject to appropriation by the  legislature,  the
 6    Attorney  General  shall  use  the monies in the fund for the
 7    administration and enforcement of the program of registration
 8    established in this Act and also for  educational  activities
 9    that advance the purposes of this Act.

10        Section  80.  Rules.  The Attorney General may promulgate
11    any rules necessary to implement this Act,  pursuant  to  the
12    Illinois Administrative Procedure Act, which rules shall have
13    the force of law.

14        Section  85.   Construction  of  Act.   This Act shall be
15    liberally construed to effect its purposes.

16        Section 905.  The State Finance Act is amended by  adding
17    Section 5.490 as follows:

18        (30 ILCS 105/5.490 new)
19        Sec.  5.490.   The  Attorney  General Telemarketing Fraud
20    Enforcement Fund.

21        (815 ILCS 413/Act rep.)
22        Section  910.   The  Telephone   Solicitations   Act   is
23    repealed.".

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