Pennsylvania Statutes Title 73 P.S. Trade and Commerce § 2242. Definitions

The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise:

“Consumer goods and services.”  Real or personal property or services used for personal, family or household purposes.

“Do-not-call list.”  A list of residential or wireless telephone subscribers who have notified the list administrator of their desire not to receive telephone solicitation calls.

“Established business relationship.”  A prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential or wireless telephone subscriber, with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the residential or wireless telephone subscriber regarding products or services offered by such persons or entity.  In regard to an inquiry, the person or entity shall obtain the consent of a residential or wireless telephone subscriber to continue the business relationship beyond the initial inquiry.

“List administrator.”  A nonprofit organization, as designated by contract entered into by the Director of the Bureau of Consumer Protection in the Office of Attorney General, that accepts individual names, addresses and telephone numbers of persons who do not wish to receive telephone solicitation calls and that has been in existence for ten or more years.  In the event that the Federal Trade Commission and/or Federal Communications Commission establish a unified national No Call Registry for the purpose of providing consumers with protection from receiving unwanted telephone solicitation calls similar to the protection provided in this act, then the Director of the Bureau of Consumer Protection in the Office of Attorney General may enter into an agreement to utilize the services of the administrator of any such national No Call Registry in lieu of using any nonprofit organization.

“Prize.”  Anything offered, or purportedly offered, and given, or purportedly given, to a person by chance.  For purposes of this definition, chance exists if a person is guaranteed to receive an item and, at the time of the offer or purported offer, the telemarketer does not identify the specific item that the person will receive.

“Prize promotion.”

(1) A sweepstakes or other game of chance;  or

(2) an oral or written express or implied representation that a person has won, has been selected to receive or may be eligible to receive a prize or purported prize.

“Residential telephone subscriber.”  Any natural person residing within this Commonwealth at the billing address of any residential telephone numbers, including both wire line telephone service numbers and wireless telephone service numbers.

“Telemarketer.”  Any person or business which, in connection with telemarketing, initiates or receives telephone calls to or from a consumer in this Commonwealth, or when the person or business acting in connection with telemarketing is located within this Commonwealth when such calls are initiated or received.  For purposes of registration under section 3(a), “telemarketer” does not include any of the following:

(1) A person or business soliciting sales through a catalog which:

(i) Contains a written description or illustration and price of each of the goods or services offered for sale.

(ii) Includes the business address of the seller.

(iii) Includes at least 24 pages of written material or illustration.

(iv) Is distributed in more than one state.

(v) Has been issued not less frequently than once a year.

(vi) Has an annual circulation of not less than 250,000 consumers.

(2) A person or business soliciting without the intent to complete and who does not complete the sales presentation during the telephone solicitation, but completes the sales presentation at a later face-to-face meeting between the solicitor and the prospective purchaser, or who offers to send the purchaser descriptive literature and does not require payment prior to the purchaser's review of the descriptive literature.  However, if a seller, directly following a telephone solicitation, causes an individual whose primary purpose it is to go to the prospective purchaser to collect the payment, this exemption does not apply.

(3) A book, video or record club or contractual plan or agreement:

(i) under which the seller provides the consumer with a form which the consumer may use to instruct the seller not to ship the offered merchandise;

(ii) which is regulated by the Federal Trade Commission trade regulation concerning “use of negative option plans by sellers in commerce”;  or

(iii) which provides for the sale of books, records or videos which are not covered under subparagraph (i) or (ii), including continuity plans, subscription arrangements, standing order arrangements, supplements and series arrangements under which the seller periodically ships merchandise to a consumer who has consented in advance to receive such merchandise on a periodic basis.

(4) A person or business conducting a business-to-business sale where the selling business has been operating continuously for at least three years under the same business name and has at least 50% of its dollar volume consisting of a repeat sales to existing businesses.

(5) A person or business engaged in a business or occupation which is licensed by, certificated by or registered with a Federal or Commonwealth agency while acting within the scope of the business for which licensure, certification or registration is required.

(6) Any of the following organizations unless a professional fundraising counsel or a professional solicitor, who is neither registered nor exempt from registration under this act, is utilized:

(i) Educational institutions, the curricula of which in whole or in part are registered with or approved by the Department of Education, either directly or by acceptance of accreditation by an accrediting body recognized by the Department of Education, and any auxiliary associations, foundations and support groups which are directly responsible to educational institutions.

(ii) Hospitals which are subject to regulation by the Department of Health or the Department of Public Welfare   1 and the hospital foundation, if any, which is an integral part thereof.

(iii) Public nonprofit library organizations which receive financial aid from State and municipal governments and file an annual fiscal report with the State Library System.

(iv) Senior citizen centers and nursing homes which are nonprofit and charitable and which have been granted tax-exempt status under the Internal Revenue Code of 1986 ( Public Law 99-514 , 26 U.S.C. § 1 et seq. ).

(v) Bona fide parent/teacher associations or parent/teacher organizations as recognized in a notarized letter from the school district in which they are located.

(vi) Any corporation established by an act of Congress of the United States that is required by Federal law to submit annual reports of its activities to Congress containing itemized accounts of all receipts and expenditures after being fully audited by the Department of Defense.

(vii) Any charitable organization which receives contributions of $25,000 or less annually.

(7) A person or business soliciting business from prospective purchasers who have previously purchased from the business enterprise for which the person is calling where the business enterprise has been operating continuously for at least three years under the same business name.

(8) A person or business primarily soliciting the sale of a newspaper, magazine or other periodical of general circulation where the business which publishes the newspaper, magazine or other periodical of general circulation has been operating continuously for at least two years under the same business name;  the person soliciting is an employee of the publisher or an employee of an agent of the publisher and the person soliciting discloses the following during the initial contact:  the total costs to purchase, receive or use and the quantity of the newspapers, magazines or other periodicals of general circulation that are the subject of the sales offer.  For the purposes of this paragraph, the term “agent” means a person or business which has entered into a written agreement directly with the publisher.

(9) A person or business, or an agent of such person or business, which has been operating for at least two years a retail business establishment in this Commonwealth under the same name as that used in connection with telemarketing and both of the following occur on a continuing basis:

(i) Either products are displayed and offered for sale or services are offered for sale and provided at the business establishment.

(ii) A majority of the seller's business involves buyers obtaining such products or services at the seller's location.  For the purposes of this paragraph, the term “agent” means a person or business which has entered into a written agreement directly with the retail business establishment.

(10) Any person or business which has been providing telemarketing services continuously for at least five years under the same ownership and control and who derives 75% of its gross telemarketing sales revenues from contracts with persons or businesses exempted in this section.

(11) A person or business soliciting the sale of food or produce if the solicitation is not intended to result and does not result in a sale which costs the purchaser in excess of $500 where the person or business selling the food or produce has been operating continuously for at least two years under the same business name.

(12) An issuer or subsidiary of an issuer that has a class of securities which is subject to section 12 of the Securities Exchange Act of 1934 (48 Stat. 881, 15 U.S.C. § 78l ) and which is either registered or exempt from registration under paragraph A, B, C, E, F, G or H of subsection (g)(2) of that section.

“Telemarketing.”  A plan, program or campaign which is conducted to induce the purchase of goods or services or to solicit contributions for any charitable purpose, charitable promotion or for or on behalf of any charitable organization, by use of one or more telephones and which involves more than one telephone call.  For purposes of this act, the terms “charitable purpose,” “charitable promotion,” “charitable organization,” “professional fundraising counsel,” “professional solicitor” and “solicitation” have the meanings as defined in the act of December 19, 1990 (P.L. 1200, No. 202),  2 known as the Solicitation of Funds for Charitable Purposes Act.

“Telemarketing business.”  A business entity that is or has engaged in the business of telephone solicitations and employs at least one telemarketer.

“Telephone solicitation call.”  A call made to a residential or wireless telephone subscriber for the purpose of soliciting the sale of any consumer goods or services or for the purpose of obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for that purpose.  The term does not include a call made to a residential or wireless telephone consumer:

(1) In response to an express request of the residential or wireless telephone consumer.

(2) In reference to an existing debt, contract, payment or performance.

(3) With whom the telemarketer has an established business relationship within the past 12 months preceding the call.

(4) On behalf of an organization granted tax-exempt status under section 501(c)(3), (5) or (8) of the Internal Revenue Code of 1986 ( Public Law 99-514 , 26 U.S.C. § 1 et seq. ) or a veterans organization chartered by the Congress of the United States and or its duly appointed foundation.

(5) On behalf of a political candidate or a political party.

1 Now Department of Human Services;  see 62 P.S. § 103.
2 10 P.S. § 162.1 et seq.

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