 (Editor’s note: Gary L. Antoniewicz has been corporate counsel to Wisconsin Independent Businesses for over 20 years. His practice is focused on general business law, business litigation and trade regulation. A partner in the Boardman Law Firm in Madison, Gary has represented many small businesses throughout the Midwest. He has extensive experience in assisting WIB members, business planning, business buying and selling, real estate, business litigation and regulatory issues.)On January 1, 2003, Wisconsin’s “no call” rule went into effect. This rule was promulgated by the Department of Agriculture, Trade and Consumer Protection (DATCP) at the direction of the Legislature under a law enacted in 2001. The law was aimed at registering telemarketers making telephone solicitation into Wisconsin and to provide residential telephone customers a method to be placed on a no call list. The law has been extremely popular with the general public, but the administrative rule is broad and some businesses may inadvertently be found in violation if they do not use caution.
The no call rule may well affect how dealers and other retailers do business and dealers and other retailers are not exempt from its coverage. The rule applies to any person who makes a telephone solicitation to a residential telephone customer in Wisconsin. Telephone solicitation is defined as, “…an unsolicited telephone call for the purpose of encouraging the call recipient to buy property, goods or services.”
Business-to-business calls are not subject to the no call directory and have limited regulation. Neither the rule nor the statute, however, addresses how family farms are treated. For the time being, farm phones should be treated as “residential” unless the number is listed in a local business directory or is listed under the name of a corporation or other type of entity.
Any business making telephone solicitations to residential telephone customers for the sale of property, goods or services must, unless exempt, register with DATCP. Those calls can no longer be made after January 1, 2003 unless the business is registered. No calls can be made to any residential customer who has opted to be placed on DATCP’s no call directory. A copy of the directory will be provided to each registrant. The directory will be updated quarterly. Residential customers had until November 30, 2002 to be included in the initial directory and over 1 million Wisconsin residents chose to be listed.
To register, each business employing a telephone solicitor (no matter how many calls are made) must pay an annual fee of $700 for the first year, and $500 for each year thereafter. There are also additional fees depending on the number and format of directories sought. Registrants are prohibited from sharing the directory with others. If you do not employ a telephone solicitor, but contract with a third party telemarketer, it is the responsibility of the telemarketing firm to obtain the necessary registration. |
As noted, there are exceptions to the rule that exempt businesses falling within the exemptions from the rule’s registration and no-call requirements. These exemptions, however, are very specific and there are no general exemptions based on the size of business or nature of the business, e.g., agricultural. The basic exemptions are:
- Fund-raising by nonprofit organizations or political committees;
- Calls by nonprofits (meeting specified requirements) to sell property, goods or services;
- Calls to call recipients in response to an “affirmative request” to be called (Note: you cannot send a letter saying that you will call unless otherwise notified--this is not an affirmative request.)
- Calls by a person on his or her own behalf and not acting as an employer or agent of another, or selling property, goods or services of another;
- Calls to a current client under a current agreement with the recipient to receive property, goods or services;
- Calls made to numbers in a current business directory;
- One call to see if a former client mistakenly allowed a contract to lapse;
- A call to determine a former client’s level of satisfaction providing the call is not a plan to encourage the client to purchase further property, goods or services; and
- Calls to parties of existing contracts necessary to complete the contracts.
In addition to the registration requirements and the no-call directory, the new law sets forth several prohibited practices applying to telephone solicitations to both residential and nonresidential (business) telephone customers. These prohibitions include:
- Using electronically prerecorded messages without the customer’s consent;
- Failing to disclose, upon request of a residential telephone customer, your DATCP registration number;
- Using caller ID blocking when making telephone solicitations;
- Making a telephone solicitation to a nonresidential number (business) who has notified the solicitor in writing that it does not want to be called. Upon request, every telephone solicitor must provide the recipient with its mailing address within ten days after request.
The new no call law will definitely have an effect on the way things are currently done by small businesses. The huge public response to be placed on the no call list, however, to some extent shows how customers do not want to be constantly called by telemarketers. While dealers and many other retailers do not view themselves as traditional telemarketers, there is no general exemption that applies. They are caught under the broad sweep of the law.
For more information on the rule or registration, you may contact DATCP at (608) 224-4999 or its website,
https://nocall.wisconsin.gov/web/home.asp |