September 25, 2018, Introduced by Rep. Phelps and referred to the Committee on Commerce and Trade.
A bill to amend 1971 PA 227, entitled
"An act to prescribe the rights and duties of parties to home
solicitation sales; to regulate certain telephone solicitation; to
provide for the powers and duties of certain state officers and
entities; and to prescribe penalties and remedies,"
by amending sections 1, 1a, 1b, 1c, 1d, and 1e (MCL 445.111,
445.111a, 445.111b, 445.111c, 445.111d, and 445.111e), section 1 as
amended by 2009 PA 93, section 1a as amended and sections 1b, 1d,
and 1e as added by 2002 PA 612, and section 1c as amended by 2006
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. As used in this act:
(a) "Home solicitation sale" means a sale of goods or services
more than $25.00 in which the seller or
a person an individual
who is acting for the seller engages in a personal, telephonic, or
written solicitation of the sale, the solicitation is received by
the buyer at a residence of the buyer, and the buyer's agreement or
to purchase is there given to the seller or
a person an
individual who is acting for the seller. Home solicitation sale
does not include any of the following:
(i) A sale
made pursuant to in which payment is made using a
preexisting revolving charge account.
(ii) A sale
made pursuant to that is the result of prior
negotiations between the parties at a business establishment at a
fixed location where goods or services are offered or exhibited for
(iii) A sale or solicitation of insurance by an insurance
licensed by the commissioner of insurance.who is licensed
under the insurance code of 1956, 1956 PA 218, MCL 500.100 to
(iv) A sale made at a fixed location of a business
establishment where goods or services are offered or exhibited for
(v) A sale made
pursuant to on the terms included in a printed
advertisement in a publication of general circulation.
(vi) A sale of services by a real estate broker or salesperson
by the department of consumer and industry services.under
article 25 of the occupational code, 1980 PA 299, MCL 339.2501 to
(vii) A sale of agricultural or horticultural equipment and
machinery that is demonstrated to the consumer by the vendor at the
request of either or both of the parties.
(b) "Fixed location" means a place of business where the
seller or an agent, servant, employee, or solicitor of that seller
primarily engages in the sale of goods or services of the same kind
as would be sold at the residence of a buyer.
(c) "Business day" means Monday through Friday and does not
include Saturday, Sunday, or the following business holidays: New
day, Day, Martin Luther King's birthday, Washington's
King Jr. Day, Presidents'
Day, Memorial day, Day,
day, Day, Labor day, Day, Columbus day, Day, Veterans'
Day, Thanksgiving day, Day, and
(d) "Federally insured depository institution" means a state
or national bank, state or federal savings bank, state or federal
savings and loan association, or state or federal credit union that
holds deposits insured by an agency of the United States.
(e) As used in only the definition of home solicitation sales,
"goods or services" does not include any of the following:
(i) A loan, deposit account, or trust account lawfully offered
or provided by a federally insured depository institution or a
subsidiary or affiliate of a federally insured depository
(ii) An extension of credit that is subject to any of the
acts, as defined in section 2 of
the consumer financial services act, 1988 PA 161, MCL 487.2052.
The mortgage brokers, lenders, and servicers licensing
1987 PA 173, MCL 445.1651 to 445.1684.
The secondary mortgage loan act, 1981 PA 125, MCL 493.51
The regulatory loan act, 1939 PA 21, MCL 493.1 to 493.24.
The consumer financial services act, 1988 PA 161, MCL
1984 PA 379, MCL 493.101 to 493.114.
The motor vehicle sales finance act, 1950 (Ex Sess) PA 27,
492.101 to 492.141.
(iii) A sale of a security or interest in a security that is
the uniform securities act, 1964 PA 265, MCL 451.501 to
or the uniform securities act
(2002), 2008 PA 551, MCL
451.2101 to 451.2703.
(f) "Written solicitation" means a postcard or other written
notice delivered to a buyer's residence that requests that the
buyer contact the seller or seller's agent by telephone to inquire
about a good or service, unless the postcard or other written
notice concerns a previous purchase or order or specifies the price
of the good or service and accurately describes the good or
"ADAD" or "automatic "Automatic dialing and
device" means any device or system of devices that is used, whether
alone or in conjunction with other equipment, for the purpose of
automatically selecting or dialing telephone numbers.
"Commission" means the public service commission.
"Do-not-call list" means a
do-not-call list of
and their residential telephone numbers maintained by the
by a vendor designated by the commission, or by an
of the federal government, under section 1a.the National Do
Not Call Registry maintained by the Federal Trade Commission under
16 CFR 310.4.
"Existing customer" means
an individual who has
purchased goods or services from a person, who is the recipient of
a voice communication from that person, and who either paid for the
goods or services within the 12 months preceding the voice
communication or has not paid for the goods and services at the
time of the voice communication because of a prior agreement
between the person and the individual.
"Person" means an
corporation, limited liability company, association, governmental
entity, or other legal entity.
( l ) "Residential telephone subscriber" or
a person residing in this state who has residential telephone
service."Telephone consumer" means an
individual who is a resident
of this state and has home or mobile telephone service.
means any voice communication
over a telephone for the purpose of encouraging the recipient of
the call to purchase, rent, or invest in goods or services during
that telephone call. Telephone solicitation does not include any of
(i) A voice communication to a
telephone consumer with that subscriber's telephone
express invitation or permission
to given before
the voice communication is made.
(ii) A voice communication to an existing customer of the
person on whose behalf the voice communication is made, unless the
existing customer is a consumer who has requested that he or she
not receive calls from or on behalf of that person under section
(iii) A voice communication to a
telephone consumer in which the caller requests a face-
meeting with the
residential telephone subscriber telephone
consumer to discuss a purchase, sale, or rental of, or investment
goods or services but does not urge the
telephone consumer to make a decision to purchase, sell,
rent, invest, or make a deposit on that good or service during the
means any person doing business
who that makes or causes to be made a telephone
solicitation from within or outside of this state, including, but
limited to, calls made by use of
automated automatic dialing
announcing devices or made by a live
"Vendor" means a person designated by the commission to
a do-not-call list under section 1a. The term may include
Sec. 1a. (1) A person shall not make a home solicitation sale
not be made by telephonic
solicitation using in whole or in
part a recorded message.
(2) A person shall not make a telephone solicitation that
consists in whole or in part of a recorded message.
Within 120 days after the effective date of the amendatory
that added this subsection, the commission shall do 1 of the
Establish a state do-not-call list. All of the following apply
if the commission establishes a do-not-call list under this
( i ) The commission shall publish the do-not-call list
for use by telephone solicitors.
( ii ) The do-not-call list fund is created in the state
Money received from fees under subparagraph ( iii ) shall
credited to the fund. The state treasurer shall direct the
of the fund. The state treasurer shall credit to the
interest and earnings from fund investments. Money remaining
the fund at the end of a fiscal year shall be carried over in
fund to the next and succeeding fiscal years. Money in the fund
be appropriated to the commission to cover the costs of
the do-not-call list, but may not be appropriated to
or reimburse a vendor designated under subdivision (b)
maintain a do-not-call list under that subdivision.
( iii ) The commission shall establish and collect 1 or
following fees to cover the costs to the commission for
the do-not-call list:
Fees charged to telephone solicitors for access to the do-
Fees charged to residential telephone subscribers for
on the do-not-call list. The commission shall not charge
residential telephone subscriber a fee of more than $5.00 for a
( iv ) The commission shall maintain the do-not-call list
1 year. After 1 year, the commission may at any time elect to
a vendor to maintain a do-not-call list under subdivision (b),
in which case subdivision (b) shall apply.
Designate a vendor to maintain a do-not-call list. All of
following apply to a vendor designated to maintain a do-not-
list under this subdivision:
( i ) The commission shall establish a procedure or
procedure for the submission of bids by vendors to
a do-not-call list under this subdivision.
( ii ) The commission shall establish a procedure or
procedure for the selection of the vendor to maintain the
list. In selecting the vendor, the commission shall
at least all of the following factors:
The cost of obtaining and the accessibility and frequency
publication of the do-not-call list to telephone solicitors.
The cost and ease of registration on the do-not-call list
consumers who are seeking inclusion on the do-not-call list.
( iii ) The commission may review its designation and make
designation under this subdivision if the commission
that another person would be better than the designated
in meeting the selection factors established under
( ii ) or
if the designated vendor engages in activities
commission considers contrary to the public interest.
( iv ) If the commission does not establish a state
under subdivision (a), the commission shall comply with the
requirements of this subdivision for at least 1 year.
1 year, the commission may at any time elect to establish and
a do-not-call list under subdivision (a), in which case
(a) shall apply. ( v ) Unless the vendor is a governmental entity, a
by the commission under this subdivision is not a
agency and is not an agent of the commission in
a do-not-call list.
( vi ) The commission and a vendor designated under this
shall execute a written contract. The contract shall
the vendor's agreement to the requirements of this section
any additional requirements established by the commission.
( vii ) The commission shall not use state funds to
reimburse a vendor designated under this subdivision. The vendor
receive compensation or reimbursement for maintaining a
do-not-call list under this subdivision only from 1 or
of the following:
Fees charged by the vendor to telephone solicitors for
to the do-not-call list.
Fees charged by the vendor to residential telephone
for inclusion on the do-not-call list. A designated
shall not charge a residential telephone subscriber a fee of
than $5.00 for a 3-year period.
( viii ) The designee do-not-call list fund is created in
treasury. If the vendor is a department or agency of this
money received from fees under subparagraph ( vii ) by that
shall be credited to the fund. The state treasurer shall
the investment of the fund. The state treasurer shall credit
the fund interest and earnings from fund investments. Money
in the fund at the end of a fiscal year shall be carried
in the fund to the next and succeeding fiscal years. Money in the
fund may be appropriated to that vendor to cover the costs of
the do-not-call list.
In determining whether to establish a state do-not-call
under subsection (2)(a) or designate a vendor under subsection
and in designating a vendor under subsection (2)(b), the
shall consider comments submitted to the commission from
telephone solicitors, or any other person.
Beginning 90 days after the commission establishes a
list under subsection (2)(a) or designates a vendor to
a do-not-call list under subsection (2)(b), a A telephone
shall not make a telephone solicitation to a
subscriber telephone consumer
whose name and residential
number is home or mobile
telephone number or numbers are
the then-current version of
that the do-not-call list.
Notwithstanding any other provision of this section, if an
of the federal government establishes a federal do-not-call
within 120 days after the establishment of the federal do-
list, the commission shall designate the federal list as
state do-not-call list. The federal list shall remain the state
list as long as the federal list is maintained. A
solicitor shall not make a telephone solicitation to a
telephone subscriber whose name and residential
number is on the then-current version of the federal
A telephone solicitor shall not use
a the do-not-call
list for any purpose other than meeting the requirements of
(4) or (5).(3). (7)
The commission or a vendor shall not sell or transfer the
list to any person for any purpose unrelated to this
1b. (1) At the beginning of a telephone solicitation,
the organization or other
person on whose behalf the call
initiated shall ensure that the individual who is making
solicitation to a
residential telephone subscriber
telephone consumer shall state his or her name and the full name of
the organization or other person on whose behalf the call was
initiated and provide a telephone number of the organization or
person on request.
A natural person must be The organization
or other person shall ensure that an individual is available to
answer the telephone number at any time when the organization or
person is making telephone
are being made.
The person An organization
or other person described in
subsection (1) shall ensure that the individual answering the
number required under subsection (1)
residential telephone subscriber telephone consumer
calling the telephone number with information describing the
organization or other person on whose behalf the telephone
was made to the
residential telephone subscriber
telephone consumer and describing the telephone solicitation.
(3) A telephone solicitor shall not intentionally block or
otherwise interfere with the caller ID function on the telephone of
residential telephone subscriber telephone consumer to whom a
telephone solicitation is made so that the telephone number of the
is not displayed on the telephone of the
Sec. 1c. (1) It is an unfair or deceptive act or practice and
a violation of this act for a telephone solicitor to do any of the
(a) Misrepresent or fail to disclose, in a clear, conspicuous,
and intelligible manner and before payment is received from the
consumer, all of the following information:
(i) Total purchase price to the consumer of the goods or
to be received.sold to him
(ii) Any restrictions, limitations, or conditions to purchase
or to use the goods or services that are the subject of an offer to
sell goods or services.
(iii) Any material term or condition of the seller's refund,
cancellation, or exchange policy, including a consumer's right to
cancel a home solicitation sale under section 2 and, if applicable,
that the seller does not have a refund, cancellation, or exchange
(iv) Any material costs or conditions related to receiving a
prize, including the odds of winning the prize, and if the odds are
not calculable in advance, the factors used in calculating the
odds, the nature and value of a prize, that no purchase is
necessary to win the prize, and the "no purchase required" method
of entering the contest.
(v) Any material aspect of an investment opportunity the
seller is offering, including, but not limited to, risk, liquidity,
earnings potential, market value, and profitability.
(vi) The quantity and any material aspect of the quality or
basic characteristics of any goods or services offered.
(vii) The right to cancel a sale under this act, if any.
(b) Misrepresent any material aspect of the quality or basic
characteristics of any goods or services offered.
(c) Make a false or misleading statement with the purpose of
inducing a consumer to pay for goods or services.
(d) Request or accept payment from a consumer or make or
submit any charge to the consumer's credit or bank account before
the telephone solicitor or seller receives from the consumer an
express verifiable authorization. As used in this subdivision,
"verifiable authorization" means a written authorization or
confirmation, an oral authorization recorded by the telephone
solicitor, or confirmation through an independent third party.
(e) Offer to a consumer in this state a prize promotion in
which a purchase or payment is necessary to obtain the prize.
(f) Fail to comply with the requirements of section 1a or 1b.
(g) Make a telephone solicitation to a consumer in this state
who has requested that he or she not receive calls from the
organization or other person on whose behalf the telephone
solicitation is made.
(h) While making a telephone solicitation, misrepresent in a
message left for a consumer on his or her answering machine or
voice mail that the consumer has a current business matter or
transaction or a current business or customer relationship with the
telephone solicitor or another person and request that the consumer
call the telephone solicitor or another person to discuss that
matter, transaction, or relationship.
Except as provided in this subsection,
beginning 210 days
the effective date of the amendatory act that added this
a person who that knowingly
or intentionally violates this
section is guilty of a misdemeanor punishable by imprisonment for
6 months 180
days or a fine of not more than
or both. This subsection does not prohibit a person from being
charged with, convicted of, or punished for any other crime
including any other violation of law arising out of the same
transaction as the violation of this section. This subsection does
not apply if the violation of this section is a failure to comply
the requirements of section 1a(1),
(4), or (5) (2), or (3) or
A person Subject to
subsections (4) and (5), an individual
who suffers loss as a result of violation of this section may bring
an individual or class action to recover actual damages or $250.00,
whichever is greater, together with reasonable attorney fees. This
does not prevent the
his or her rights under this act if the telephone solicitation
results in a home solicitation sale, or asserting any other rights
consumer may have individual
has under applicable
state or federal law.
(4) If a consumer whose name and home or mobile telephone
number is on the then-current version of the do-not-call list
receives a telephone solicitation that consists in whole or in part
of a recorded message, the consumer may notify the telephone
solicitor in writing that it has violated section 1a and provide
with the notice the time and date of the solicitation and evidence
that the consumer is on the do-not-call list. A telephone solicitor
that receives notification from a consumer under this subsection
shall pay the consumer $1.00 for each telephone solicitation it
made to the consumer within 30 days after it receives notification
under this subsection. If the telephone solicitor does not pay the
consumer the amount owed under this subsection within that time
period, the consumer may proceed under subsection (3), and the
amounts owed to the consumer under this subsection are considered
the consumer's actual damages for the violation or violations of
(5) The attorney general may bring a class action on behalf of
consumers described in subsection (3) or (4) to enforce this act,
in the manner provided in section 10 of the Michigan consumer
protection act, 1976 PA 331, MCL 445.910.
Beginning 210 days after the effective date of
amendatory act that added this section, if If a telephone
directory includes residential telephone numbers, a person that
publishes a new telephone directory shall include in the telephone
directory a notice describing the do-not-call list and how to
enroll on the do-not-call list.
210 days after the effective date of the
act that added this section, October
27, 2003, each
provider that provides
service to telephone consumers shall include a notice describing
the do-not-call list and how to enroll on the do-not-call list with
1 of that telecommunication provider's bills for telecommunication
a residential telephone subscriber the telephone
If the federal
communication commission or any
federal agency establishes a federal "do not call" list, the
shall also describe that list and how to enroll on that
As used in this subsection,
means that term as defined in section 102 of the Michigan
telecommunications act, 1991 PA 179, MCL 484.2102.
Sec. 1e. Sections 1a, 1b, 1c, and 1d do not apply to a person
that is subject to any of the following:
(a) The charitable organizations and solicitations act, 1975
PA 169, MCL 400.271 to 400.294.
(b) The public safety solicitation act, 1992 PA 298, MCL
14.301 to 14.327.
(c) Section 527 of the internal revenue code of 1986, 26 USC
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.