Mo. Rev. Stat. § 407.1070
Section 407.1070 – Definitions
As used in sections 407.1070 to 407.1085, the following terms shall mean:
(1) “Advertisement”, as defined in section 407.010;
(2) “Caller identification service”, a type of telephone service which permits telephone subscribers to see the telephone number of incoming telephone calls;
(3) “Consumer”, a natural person who purchases, may purchase or is solicited for purchase of merchandise or an investment opportunity by a telemarketer through telemarketing;
(4) “Established business relationship”, a prior or existing relationship formed by a voluntary two-way communication between a seller or telemarketer and a consumer with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the consumer regarding products or services offered by such seller or telemarketer, which relationship has not been previously terminated by either party;
(5) “Fictitious name”, any name, other than the legal name, used by a seller or telemarketer;
(6) “Investment opportunity”, anything tangible or intangible that is offered for sale, sold or traded based wholly or in part on representations, either express or implied, about past, present or future income, profit or appreciation;
(7) “Material aspect or element”, any factor likely to significantly influence the consumer’s choice of, or conduct regarding, merchandise;
(8) “Merchandise”, any objects, wares, goods, commodities, intangibles, real estate or services; except that merchandise shall not include any services, goods or memberships given to a contributor by an entity, organized pursuant to Chapter 501 (c) (3) of the United States Internal Revenue Code, while such entity is engaged in fund-raising to support the charitable purpose for which the entity was established provided that a bona fide member of such exempt organization makes the voice communication;
(9) “Prize”, anything offered or purportedly offered or given or purportedly given to a consumer by chance. For purposes of this definition, chance exists if a consumer is guaranteed to receive anything of value and, at the time of the offer or purported offer, the telemarketer does not identify the specific item that the consumer will receive;
(10) “Promptly”, at the beginning of any call initiated by a telemarketer to a consumer;
(11) “Seller”, any person who, in connection with a telemarketing transaction, provides, offers to provide, or arranges for others to provide merchandise to the consumer in exchange for consideration;
(12) “Telemarketer”, any person, or any recorded, computer-generated, electronically generated or other voice communication of any kind, who, in connection with telemarketing, initiates or receives telephone calls to or from a consumer. A telemarketer includes, but is not limited to, any such person that is an owner, operator, officer, director or partner to the management activities of a business;
(13) “Telemarketing”, a plan, program or campaign which is conducted to induce the purchase or lease of merchandise by use of one or more telephones and which involves more than one telephone call.
§ 407.1070, RSMo
L. 2000 S.B. 763
Section 407.1073 – Telemarketers, required disclosures – misrepresentations prohibited
(1) That the purpose of the telephone call is to make a sale;
(2) The telemarketer’s identifiable name and the seller on whose behalf the solicitation is being made;
(3) The nature of the merchandise or investment opportunity being sold;
(4) That no purchase or payment is necessary to be able to win a prize or participate in a prize promotion if a prize promotion is offered. This disclosure shall be made before or in conjunction with the description of the prize to the consumer called; and
(5) If the telephone call is made by any recorded, computer-generated, electronically generated or other voice communication of any kind. When engaged in telemarketing, such voice communication shall, promptly at the beginning of the telephone call, inform the consumer that the call is being made by a recorded, computer-generated, electronically generated or other type of voice communication, as the case may be.
2. Before a consumer pays for merchandise offered for sale through telemarketing, the telemarketer shall disclose, in a clear and conspicuous manner, the following:(1) The seller or telemarketer’s identifiable name and the address or telephone number where the seller or telemarketer can be reached;
(2) The total cost and quantity of the merchandise that is the subject of the telemarketing sales call;
(3) Any material restriction, limitation or condition to purchase, receive or use the merchandise that is the subject of a telemarketing sales call;
(4) Any material aspect of the nature or terms of the refund, cancellation, exchange or repurchase policies, including the absence of such policies;
(5) Any material aspect of an investment opportunity being offered, including benefits, the price of the land or other investment, and the location of the investment;
(a) The odds of being able to receive the prize and, if the odds are not calculable in advance, the factors and methods used in calculating the odds;
(b) That no purchase or payment of any kind is required to win a prize or to participate in a prize promotion;
(c) The no-purchase or no-payment method of participating in the prize promotion, with either instructions on how to participate or an address or local or toll-free telephone number to which consumers may write or call for information on how to participate; and
(d) All material conditions to receive or redeem the prize.
3. A telemarketer shall not misrepresent, directly or by implication, any of the following:
(1) A description of the prize;
(2) Its market value;
(3) The actual number of each prize to be awarded;
(4) The date by which the prize will be awarded.
4. A telemarketer shall not misrepresent any material aspect of the performance, quality, efficacy, nature or basic characteristics of merchandise that is the subject of a telemarketing sales call.
§ 407.1073, RSMo
L. 2000 S.B. 763
Section 407.1076 – Unlawful telemarketing acts or practices
It is an unlawful telemarketing act or practice for any seller or telemarketer to engage in the following conduct:
(1) Misrepresent any material fact required pursuant to section 407.1073. It is a defense to this subdivision if a seller or telemarketer shows, by a preponderance of the evidence, that the misrepresentation resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid the error, and no civil penalties shall be imposed if this defense is met;
(2) Threaten, intimidate or use profane or obscene language;
(3) Cause the telephone to ring or engage any consumer in telephone conversation repeatedly or continuously in a manner a reasonable consumer would deem to be annoying, abusive or harassing;
(4) Knowingly and willfully initiate a telemarketing call to a consumer, or transfer or make available to others for telemarketing purposes a consumer’s telephone number when that consumer has stated previously that he or she does not wish to receive solicitation calls by or on behalf of the seller unless such request has been rescinded;
(5) Engage in telemarketing to a consumer’s residence at any time other than between 8:00 a.m. and 9:00 p.m. local time at the called consumer’s location;
(6) Request or receive payment in advance to remove derogatory information from or improve a consumer’s credit history, credit record or credit rating;
(7) Request or receive payment in advance from a consumer to recover or otherwise aid in the return of money or any other item lost by the consumer in a prior telemarketing transaction, except that this provision shall not apply to services provided by a licensed attorney;
(8) Obtain or submit for payment a check, draft or other form of negotiable paper drawn on a consumer’s checking, savings, share or similar account without the consumer’s express written or oral authorization. Such authorization shall be deemed verifiable if any of the following means are employed:
(a) Express written authorization by the consumer, which may include the consumer’s signature on the negotiable instrument;
(b) Express oral authorization which is tape-recorded and made available upon request to the consumer’s bank and which evidences clearly both the consumer’s authorization of payment for the merchandise that is the subject of the sales offer and the consumer’s receipt of all of the following information:
a. The date of the draft or drafts;
b. The amount of the draft or drafts;
c. The payor’s name;
d. The number of draft payments;
e. A telephone number for consumer inquiry that is answered during normal business hours; and
f. The date of the consumer’s oral authorization; or
(c) Written confirmation of the transaction, sent to the consumer prior to submission for payment of the consumer’s check, draft or other form of negotiable paper, which shall include:
a. All of the information contained in paragraph (b) of this subdivision; and
b. The procedures by which the consumer can obtain a refund from the seller or telemarketer in the event that the confirmation is inaccurate;
(9) Procure the services of any professional delivery, courier or other pick-up service to obtain immediate receipt or possession of a consumer’s payment, unless the merchandise or investment opportunity is delivered with the opportunity to inspect before any payment is collected;
(10) Knowingly provide assistance or support to any telemarketer when that person knows or consciously avoids knowing that the telemarketer is engaged in any act in violation of sections 407.1070 to 407.1085; or
(11) Knowingly utilize any method to block or otherwise circumvent a consumer’s use of a caller identification service.
§ 407.1076, RSMo
Section 407.1079 – Telemarketers required to keep certain records
1. A seller or telemarketer shall keep for a period of twenty-four months from the date the record is produced all verifiable authorizations and records as required in sections 407.1070 to 407.1085, in the form, manner, format or place as they keep such records in the ordinary course of business, including but not limited to:
(1) All substantially different advertising, brochures, telemarketing scripts and promotional materials;
(2) For any prize with a value of twenty-five dollars or greater, the name and last known address of each prize recipient and the prize awarded;
(3) The name and last known address of each consumer, the merchandise purchased, the date such merchandise was shipped or provided and the amount paid by the consumer for the merchandise;
(4) The name, any fictitious name used, the last known home address and telephone number, and the job title for all current and former employees directly involved in telephone sales, provided, that if the seller permits fictitious names to be used by employees, each fictitious name must be traceable to only one specific employee; and
(5) All written authorizations required to be provided or received pursuant to sections 407.1070 to 407.1085.
2. For offers of consumer credit products subject to The Truth in Lending Act, 15 U.S.C. et seq., and Regulation Z, 12 CFR 226, compliance with the record-keeping requirements pursuant to The Truth in Lending Act and Regulation Z shall constitute compliance with subdivision (3) of subsection 1 of this section.
3. The seller and the telemarketer calling on behalf of the seller may, by written agreement, allocate responsibility between themselves for the record keeping required by this section. When a seller and telemarketer have entered into such an agreement, the terms of the agreement shall govern, and the seller or telemarketer, as the case may be, need not keep records that duplicate those of the other. If the agreement is unclear as to who must maintain any required record, or if no such agreement exists, the seller shall be responsible for complying with subdivisions (1) , (2) , (3) and (5) of subsection 1 of this section and the telemarketer shall be responsible for complying with subdivision (4) of subsection 1 of this section.
4. In the event of any dissolution or termination of the telemarketer’s business, the telemarketer shall maintain all records as required pursuant to this section. In the event of any sale, assignment or other change in ownership of the seller’s business, the successor shall maintain all records required pursuant to this section.
§ 407.1079, RSMo
Section 407.1082 – Penalties – criminal penalties – civil damages
1. It is unlawful pursuant to section 407.020 to violate any provision of sections 407.1070 to 407.1085 or to misrepresent or omit the required disclosures of section 407.1073 or 407.1076, and pursuant to sections 407.010 to 407.130, the violator shall be subject to all penalties, remedies and procedures provided in sections 407.010 to 407.130. The remedies available in this section are cumulative and in addition to any other remedies available by law.
2. Any person who willfully and knowingly engages in any act or practice declared to be unlawful by any provision of subdivisions (2) to (5) of section 407.1076 shall be guilty of a class A misdemeanor. Any person who willfully and knowingly engages in any act or practice declared to be unlawful by any provision of subdivision (1) of section 407.1076, or of subdivisions (6) to (11) of section 407.1076, shall be guilty of a class E felony. Any person previously convicted of a class E felony pursuant to this subsection shall, for each subsequent conviction, be guilty of a class E felony punishable by the term of years set out for a class E felony, but with a fine of not more than five thousand dollars or a fine equal to triple the gain, with no limit on the amount recoverable pursuant to any triple-the-gain penalty. Any person who willfully and knowingly fails to keep the records required in section 407.1079 shall be guilty of a class A misdemeanor.
3. In addition to the remedies already provided in sections 407.1070 to 407.1085, any consumer that suffers a loss or harm as a result of any unlawful telemarketing act or practice pursuant to section 407.1076 may recover actual and punitive damages, reasonable attorney’s fees, court costs and any other remedies provided by law.
§ 407.1082, RSMo
Section 407.1085 – Exemptions – attorney general to receive complaints
1. The following acts or practices are exempt from the provisions of sections 407.1070 to 407.1082:
(1) Telephone calls in which the sale of merchandise is not completed, and payment or authorization of payment is not required, until after a face-to-face sales presentation by the telemarketer or seller; or
(2) Telephone calls in which the sale of merchandise is completed and a written contract is forwarded to the consumer so long as the consumer may return the merchandise within fourteen days of receipt of the merchandise and receive a refund of any moneys paid except for any coverage, fees or services earned; provided that the telemarketer shall inform the consumer at the time of the call that:
2. The office of the attorney general shall receive telemarketing complaints by means of a toll-free telephone number, by a notice in writing or by electronic means. Complaints against entities who are licensed, certificated or permitted and whose telemarketing practices are regulated by the same state or federal agency and which agency has rules regulating telemarketing practices shall be forwarded for investigation by the office of the attorney general to such agency. All other complaints shall be handled by the office of the attorney general.
§ 407.1085, RSMo
Section 407.1090 – Required disclosures for entities soliciting contributions
When any entity is paid for soliciting contributions via telephone calls, and the pay is based on contributions received as a result of the phone call, the entity making the calls must disclose immediately to all called parties the net percentage of contributions that go to the organization for which the contribution is solicited.
§ 407.1090, RSMo
Section 407.1095 – Definitions
As used in sections 407.1095 to 407.1110, the following words and phrases mean:
(1) “Caller identification service”, a type of telephone service which permits telephone subscribers to see the telephone number of incoming telephone calls;
(2) “Residential subscriber”, a person who, for primarily personal and familial use, has subscribed to residential telephone service, wireless service or similar service, or the other persons living or residing with such person;
(3) “Telephone solicitation”, any voice, facsimile, short messaging service (SMS) , or multimedia messaging service (MMS) , for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services, but does not include communications:
(a) To any residential subscriber with that subscriber’s prior express invitation or permission;
§ 407.1095, RSMo
L. 2000 S.B. 763, A.L. 2012H.B. 1549.
Section 407.1098 – Telephone solicitation of member on no-call list prohibited
No person or entity shall make or cause to be made any telephone solicitation to any residential subscriber in this state who has given notice to the attorney general, in accordance with rules promulgated pursuant to section 407.1101 of such subscriber’s objection to receiving telephone solicitations.
§ 407.1098, RSMo
Section 407.1101 – Attorney general to create no-call list database – rules – inclusion of national database – database not a public record – no cost to subscribers
1. The attorney general shall establish and provide for the operation of a database to compile a list of telephone numbers of residential subscribers who object to receiving telephone solicitations. Such list is not intended to include any telephone number primarily used for business or commercial purposes.
2. The attorney general shall promulgate rules and regulations governing the establishment of a state no-call database as he or she deems necessary and appropriate to fully implement the provisions of sections 407.1095 to 407.1110. The rules and regulations shall include those which:
(1) Specify the methods by which each residential subscriber may give notice to the attorney general or its contractor of his or her objection to receiving such solicitations or revocation of such notice. There shall be no cost to the subscriber for joining the database;
3. If the Federal Communications Commission establishes a single national database of telephone numbers of subscribers who object to receiving telephone solicitations pursuant to 47 U.S.C. Section 227(c) (3) , the attorney general shall include that part of such single national database that relates to Missouri in the database established pursuant to this section.
4. Information contained in the database established pursuant to this section shall be used only for the purpose of compliance with section 407.1098 and this section or in a proceeding or action pursuant to section 407.1107. Such information shall not be considered a public record pursuant to chapter 610.
5. In April, July, October and January of each year, the attorney general shall be encouraged to obtain subscription listings of residential subscribers in this state who have arranged to be included on any national do-not-call list and add those telephone numbers to the state do-not-call list.
6. The attorney general may utilize moneys appropriated from general revenue and moneys appropriated from the merchandising practices revolving fund established in section 407.140 for the purposes of establishing and operating the state no-call database.
7. Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in sections 407.1095 to 407.1110 shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028. This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2000, shall be invalid and void.
§ 407.1101, RSMo
L. 2000 S.B. 763, A.L. 2012H.B. 1549.
Section 407.1104 – Caller identification service, telephone solicitor not to interfere with subscriber’s use of service
1. Any person or entity who makes a telephone solicitation to any residential subscriber in this state shall, at the beginning of such solicitation, state clearly the identity of the person or entity initiating the solicitation.
2. No person or entity who makes a telephone solicitation to a residential subscriber in this state shall knowingly use any method to block or otherwise circumvent any subscriber’s use of a caller identification service.
§ 407.1104, RSMo
Section 407.1107 – Penalties, attorney general to enforce – civil, criminal, injunctive relief – private actions – defenses – statute of limitations
1. The attorney general may initiate proceedings relating to a knowing violation or threatened knowing violation of section 407.1098 or 407.1104. Such proceedings may include, without limitation, an injunction, a civil penalty up to a maximum of five thousand dollars for each knowing violation and additional relief in any court of competent jurisdiction. The attorney general may issue investigative demands, issue subpoenas, administer oaths and conduct hearings in the course of investigating a violation of section 407.1098 or 407.1104.
2. In addition to the penalties provided in subsection 1 of this section, any person or entity that violates section 407.1104 shall be subject to all penalties, remedies and procedures provided in sections 407.010 to 407.130. The remedies available in this section are cumulative and in addition to any other remedies available by law.
3. Any person who has received more than one telephone solicitation within any twelve-month period by or on behalf of the same person or entity in violation of section 407.1098 or 407.1104 may either:
(1) Bring an action to enjoin such violation;
4. It shall be a defense in any action or proceeding brought pursuant to this section that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of section 407.1098 or 407.1104.
5. No action or proceeding may be brought pursuant to this section:
(1) More than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation; or
6. A court of this state may exercise personal jurisdiction over any nonresident or his or her executor or administrator as to an action or proceeding authorized by this section in the manner otherwise provided by law.
7. The remedies, duties, prohibitions and penalties of sections 407.1095 to 407.1107 are not exclusive and are in addition to all other causes of action, remedies and penalties provided by law.
8. No provider of telephone caller identification service shall be held liable for violations of section 407.1098 or 407.1104 committed by other persons or entities.
§ 407.1107, RSMo
L. 2000 S.B. 763 § 407.1110, A.L. 2012H.B. 1549.
Section 407.1110 – Advisory group for consumer protection from telemarketers – publication of information on consumer rights
The attorney general shall establish an advisory group composed of government entities, local telecommunications companies, businesses, and senior citizen and other community advocates to compile and promote a list of educational literature to help consumers understand their options with regard to telephone solicitations. The attorney general shall work with local exchange telecommunications companies to disseminate to their residential subscribers information about the availability of and instructions about how to request educational literature from the attorney general. The attorney general may enter into agreements with those companies for the purpose of dissemination of the educational literature. The attorney general shall include on his or her internet website information that informs residential subscribers of their rights to be placed on a no-call list and the various methods, including notice to the attorney general, of placing their names on this no-call list. The attorney general shall have this literature developed for dissemination to the public no later than January 1, 2001.
§ 407.1110, RSMo