4-99-103. Definitions.

4-99-103. Definitions. As used in this chapter: (1) “Caller identification service” means a service offered by a telecommunications provider that provides caller identification information to a device capable of displaying the information; (2) [Repealed.] (3) “Item” means any goods and services and includes coupon books which are to be used with businesses other than the seller's business; (4) “Owner” means a person who owns or controls ten percent (10%) or more of the equity of or otherwise has claim to ten percent (10%) or more of the net income of a telephonic seller; (5) “Person” includes an individual, firm, association, corporation, partnership, joint venture, or any other business entity; (6) “Principal” means an owner, an executive officer of a corporation, a general partner of a partnership, a sole proprietor of a sole proprietorship, a trustee of a trust, or any other individual with similar supervisory functions with respect to any person; (7) “Purchaser” or “prospective purchaser” means a person who is solicited to become or does become obligated to a telephonic seller; (8) “Salesperson” means any individual employed, appointed, or authorized by a telephonic seller, whether referred to by the telephonic seller as an “agent”, “representative”, or “independent contractor”, who attempts to solicit or solicits a sale on behalf of the telephonic seller. The principals of a seller are themselves salespersons if they solicit sales on behalf of the telephonic seller; and (9) “Telephonic seller” or “seller” means a person who on his or her own behalf or through salespersons causes a telephone solicitation or attempted telephone solicitation to occur which meets the criteria specified in subdivision (9)(A) or subdivision (9)(B) of this section, and who is not exempted by subdivision (9)(C) of this section, as follows: (A) A telephone solicitation or attempted telephone solicitation wherein the telephonic seller initiates telephonic contact with a prospective purchaser and represents or implies one (1) or more of the following: (i) That a prospective purchaser who buys one (1) or more items will also receive additional or other items, whether or not of the same type as purchased, without further cost. For purposes of this subdivision (9)(A)(i), “further cost” does not include actual postage or common carrier delivery charges, if any; (ii) That a prospective purchaser will receive a prize or gift if the person also encourages the prospective purchaser to do either of the following: (a) Purchase or rent any goods or services; or (b) Pay any money, including, but not limited to, a delivery or handling charge; (iii) That a prospective purchaser is able to obtain any item or service at a price which the seller states or implies is below the regular price of the item or service offered. This subdivision (9)(A)(iii) shall not apply to retailers who within the previous twelve (12) months have sold a majority of their goods or services through in-person sales at retail stores; (iv) That the seller is a person other than the person he or she is; or (v) That the items for sale are manufactured or supplied by a person other than the actual manufacturer or supplier; (B)(i) A solicitation or attempted solicitation which is made by telephone in response to inquiries generated by unrequested notifications sent by the seller to persons who have not previously purchased goods or services from the seller or who have not previously requested credit from the seller to a prospective purchaser wherein the seller represents or implies to the recipient of the notification that any of the following applies to the recipient: (a) That the recipient has in any manner been specially selected to receive the notification or the offer contained in the notification; (b) That the recipient will receive a prize, gift, or award if the recipient calls the seller; or (c) That, if the recipient buys one (1) or more items from the seller, the recipient will also receive additional or other items, whether or not of the same type as purchased, without further cost or at a cost which the seller states or implies is less than the regular price of such items. (ii) This subdivision (9)(B) does not apply to the solicitation of sales by a catalogue seller who periodically issues and delivers catalogues to potential purchasers by mail or by other means. This exception only applies if the catalogue includes a written description or illustration and the sales price of each item or merchandise offered for sale includes at least twenty-four (24) full pages of written material or illustrations, is distributed in more than one (1) state, and has an annual circulation of no fewer than two hundred fifty thousand (250,000) customers; and (C) As used in this chapter, “telephonic seller” or “seller” does not include any of the following: (i) A person offering or selling a security and who is registered pursuant to § 23-42-301 et seq.; (ii) A person offering or selling insurance and who is licensed pursuant to § 23-64-201 et seq.; (iii) A person primarily soliciting the sale of a newspaper of general circulation, a magazine, or membership in a book or record club whose program operates in conformity with § 4-89-101 et seq. and the Arkansas Mail and Telephone Consumer Product Promotion Fair Practices Act, § 4-95-101 et seq.; (iv) A person soliciting business from prospective purchasers who have previously purchased from the business enterprise for which the person is calling; (v)(a) A person 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. (b) 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 or deliver any item purchased, this exemption does not apply; (vi) Any supervised financial institution or parent, subsidiary, or affiliate thereof. As used in this subdivision (9)(C)(vi), “supervised financial institution” means any commercial bank, trust company, savings and loan association, credit union, industrial loan company, personal property broker, consumer finance lender, commercial finance lender, or insurer, provided that the institution is subject to the supervision of an official or agency of this state or of the United States; (vii) Any burial association operating pursuant to the authority of § 23-78-101 et seq.; (viii) A person or an affiliate of a person whose business is regulated by the Arkansas Public Service Commission; (ix) An issuer or a subsidiary of an issuer that has a class of securities which is subject to and which is either registered or exempt from registration under § 23-42-401 et seq.; (x) A person soliciting a transaction regulated by the United States Commodity Futures Trading Commission if the person is registered or temporarily licensed for this activity with the United States Commodity Futures Trading Commission under the Commodity Exchange Act, 7 U.S.C. § 1 et seq., and the registration or license has not expired or been suspended or revoked; or (xi) A person soliciting a transaction directed to a purchaser holding a permit pursuant to the Arkansas Gross Receipts Act of 1941, § 26-52-101 et seq., and in which the solicitation deals with goods of a type that are subject to resale by the purchaser.