§ 17539.5. — 17539.5. (Amended by Stats. 1998, Ch. 599, Sec. 16.)

California § 17539.5.

• Jurisdiction: California
• Code BPC: Business and Professions Code - BPC
• Div. 7.: DIVISION 7. GENERAL BUSINESS REGULATIONS
• Part 3.: PART 3. REPRESENTATIONS TO THE PUBLIC
• Ch. 1.: CHAPTER 1. Advertising
• Art. 2.: ARTICLE 2. Particular Offenses

Text

(a)
For purposes of this section and Sections 17539.55 and 17539.6:
(1)
“Broadcast” means the utilization of radio, television, home videos, movie screens, telephones, or other medium, including the Internet, that does not automatically provide the prospective consumer with a printed or written document he or she can read at leisure.
(2)
“Caller” means a telephone user or end user who calls or may call an
information-access service or who receives a telephonic solicitation that results in the recipient being connected to an information-access service.
(3)
“Carrier” means any regional telephone operating company, interexchange carrier, or local exchange telephone company that provides telecommunications transmission services.
(4)
“Incentive” means any item or service of value, however denominated, including, but not limited to, any prize, award, gift, or money, or any coupon that can be used in whole or in part to obtain a product or service.
(5)
“Information provider” means a person who advertises or sells an information-access service and on whose behalf charges are billed.
(6)
“Information-access service” means any telecommunications service that
permits individuals to access a telephone number, and for which the caller is assessed, by virtue of placing or completing the call, a charge that is greater than, or in addition to, the charge for the transmission of the call. Information-access service includes, but is not limited to, telephone numbers with the prefix 900 or 976.
(7)
“900 number” means any prefixed telephone number used for information-access service and includes, but is not limited to, telephone numbers with the prefix 900 or 976.
(8)
“Prize” means any item of value given to winners in a sweepstakes who have been selected on the basis of lot or chance.
(9)
“Program” means the audio message that the caller hears or receives upon placing or receiving a call and being connected to an information-access service.
(10)
“Sell an information service” means to attempt to cause a caller to act in a manner that causes that caller to be charged for utilizing an information-access service.
(11)
“Solicitation” includes all forms of solicitation for information-access services, including, but not limited to, mailings, advertisements in newspapers and magazines, advertisements broadcast by radio or television, advertisements contained in home videos or appearing on movie screens, telephone solicitations, and advertisements transmitted over the Internet. “Solicitation” does not include simple listings in telephone directories provided those listings are not accompanied by any advertising text.
(12)
“Sweepstakes” means any procedure for the distribution of anything of value by lot or by chance that is not unlawful under other provisions of
law including, but not limited to, the provisions of Section 320 of the Penal Code. Nothing contained in this section shall be deemed to render lawful any activity that otherwise would violate Section 320 of the Penal Code.
(b)
It is unlawful for any person to engage in any of the following acts in order to encourage any caller to utilize an information-access service:
(1)
Soliciting callers by use of an automatic dialing device or a live or recorded outbound telephone message.
(2)
Utilizing signals or tones provided directly or indirectly by the information provider to access the information-access service.
(3)
Requiring callers to call more than one 900 number or to require calling the same 900 number more than one time in order to receive goods or
services represented in the initial solicitation.
(4)
Utilizing a telephone number other than a 900 number from which a caller can be automatically connected to the information-access service.
(5)
Soliciting callers to call a telephone number other than a 900 number, including, but not limited to, an 800 telephone number, when the caller who calls that other number will be referred to a 900 number unless all solicitations for the initial information-access program clearly and conspicuously disclose that a referral will be made and the cost to the caller for calling the 900 number to which the caller will be referred.
(6)
Soliciting callers to call a number other than a 900 number, including, but not limited to, an 800 telephone number, when the caller who calls that number will be asked to accept one or more collect
calls unless all solicitations clearly and conspicuously disclose that the caller will be asked to accept one or more collect calls and the cost to the caller for accepting the collect calls. The cost shall be described as cost per minute and cost per hour.
(7)
Referring a caller from one 900 number to another 900 number unless all solicitations for the initial information-access program clearly and conspicuously disclose that a referral will be made and the cost to the caller for calling the 900 number to which the caller will be referred.
(8)
Advertising that the information-access service is free.
(9)
Using any printing style, graphic, layout, text, color, or format which states or implies that the solicitation originates from, or was issued by or on behalf of a governmental agency, a public utility, a nonprofit
organization, an insurance company, a credit reporting agency, a collection company, or a law firm unless the same is true.
(c)
It is unlawful for any person to solicit or sell an information-access service unless the following information is clearly and conspicuously disclosed in all solicitations:
(1)
An accurate description of the information-access service.
(2)
The name, address, and non-900 telephone number of the information provider.
(3)
The cost of the call, which shall be disclosed as follows:
(A)
If the call is billed at a fixed rate, the total cost of the call.
(B)
If the call is billed on a usage-sensitive basis,
the cost per minute or other unit of time, and including:
(i)
In broadcast solicitations, the average cost of the call.
(ii)
In print solicitations, the average cost or length of the call, except that print solicitations directed to persons in this state shall disclose the average cost of the call.
(C)
Solicitations in which the length of the program cannot reasonably be determined because the length of the program depends upon the skill of, or the selections or responses made by, the caller, shall be exempt from the cost disclosure provisions of this paragraph.
(D)
Solicitations that are oral shall include a voice announcement of the cost of the call in clear and understandable language that is clearly audible and articulated at a volume equal to that
used to announce the 900 number. The cost of the call shall be stated immediately prior to or immediately after the 900 number is stated.
(E)
Solicitations that are broadcast visually shall include, in clear, visible, easily readable, and conspicuously presented letters and numbers, set against a contrasting background, the cost of calling the 900 number. The visual disclosure of the cost of the call shall be displayed directly above, below, or adjacent to the number to be called whenever the number is displayed in the commercial. The visual disclosure of the cost of the call shall be a distinct disclosure and shall not be combined in the same paragraph with any other disclosure required to be made pursuant to this section. The lettering of the visual disclosure shall be no less than 18 scan lines high and shall be displayed for as long as the number is displayed. Broadcast solicitations shall also include a voice announcement of the cost of
the call in clear and understandable language that is clearly audible and articulated at a volume equal to that used to announce the 900 number. The cost of the call shall be stated immediately prior to or after the 900 number is stated.
(F)
Solicitations that appear in print shall include, in clear, visible, easily readable, and conspicuously presented letters and numbers, the cost of calling the 900 number. The printed disclosure of the cost of the call shall be displayed directly above, below, or adjacent to the number. The lettering of the cost disclosure shall be in no less than 10-point type.
(4)
If the information-access service is aimed at or likely to be of interest to minors, solicitations that appear in print shall contain a statement, in at least the same size print as that used to disclose the 900 number, that persons under the age of 18 years should obtain parental
consent before calling. If the solicitation is through a broadcast, this statement shall be of the same audibility as that used to disclose the 900 number.
(d)
It shall be unlawful for any person to solicit or sell an information-access service in any manner related to a sweepstakes.
(e)
Solicitations made to persons in this state offering the opportunity to participate in a sweepstakes shall, with respect to each prize offered, set forth clearly, conspicuously, and in easily readable letters the odds of receiving that prize, described in whole Arabic numerals in a format such as: “1 chance in 100,000” or “1:100,000.” If the odds depend upon the number of entries and the number of persons solicited is controlled by the sponsor of the promotion, the solicitation shall set forth the reasonable expectation of entries. If the odds depend upon the number of entries received and the
number of persons solicited is not controlled by the sponsor of the sweepstakes, a statement to the effect that the odds depend on the number of entries received shall be sufficient. If more than one prize is offered, the odds shall be separately stated for each prize. The disclosure required to be made pursuant to this subdivision shall be made immediately adjacent to the first identification of the prize to which it relates or in a separate section entitled “Consumer Disclosure” or “Official Rules.” These titles shall be printed in no less than 10-point boldface type. The consumer disclosure section shall be clearly and conspicuously disclosed in the solicitation. There shall be a statement referring the recipient of the solicitation to the consumer disclosure section in the main text of the solicitation in close proximity to the description of the prizes, and the odds shall be disclosed within the top 25 percent of the consumer disclosure section. If the consumer disclosure section does not appear on the
same page as the statement referring the recipient of the solicitation to this section, the statement shall indicate where the consumer disclosure section is located. If the odds appear in the section entitled “Consumer Disclosure” or “Official Rules,” there shall be a clear and conspicuous statement in the main text of the solicitation in close proximity to the description of the prizes that the odds to the recipient of obtaining the prize or prizes will be found elsewhere, and the statement shall set forth where they will be found. It is not a violation of this section to reference the official rules and the odds in the same statement as long as the statement referencing the official rules and the odds is in the main text of the solicitation in close proximity to the description of the prizes. For example, a statement such as: “See official rules (on (reference to location of rules if not on same page)) for odds and other details” or a similar statement meets the requirements of this provision. This
provision shall not apply to broadcast solicitations for sweepstakes in which the winners will be selected in a random drawing in which the odds depend on the number of entries received, provided that those solicitations shall disclose where the official rules are available and the official rules shall set forth the odds of winning in accordance with this subdivision.
(f)
If any incentive is offered in a solicitation for an information-access service, the solicitation shall clearly and conspicuously disclose all restrictions, qualifications, and deadlines that must be complied with in order to obtain the incentive being offered.
(g)
No person soliciting callers for an information-access service shall represent directly or by implication that the person being solicited is part of a significantly limited group selected to receive an incentive, unless that is true and the number of
recipients who will be receiving the solicitation is clearly and conspicuously set forth in the solicitation.
(h)
It is unlawful for any person to solicit or sell an information-access service to any person in the following manner:
(1)
The solicitation offers to persons in this state who respond to the solicitation by calling a 900 number any incentive that:
(A)
Requires the recipient to purchase goods or services from the information provider in order to utilize the incentive. However, this subparagraph does not apply to offers where the incentive is a “cents-off” coupon that is usable only for the purchase of the offeror’s own brand name product or products, the total value of the “cents-off” coupon offered is clearly and conspicuously disclosed in the offer, the total value of the “cents-off” coupon does not
exceed five dollars ($5), the “cents-off” coupon is to be utilized to reduce the price of those products at retail stores in the recipient’s area, and at least 60 percent of the revenue per month of the offeror is derived from the sale of the product or products being purchased without the use of the “cents-off” coupons.
(B)
Requires the recipient to purchase goods or services from any third party in order to utilize the incentive unless:
(i)
The fact that a purchase or payment is required in order to utilize the incentive is disclosed in the solicitation.
(ii)
A representative sample of the establishments at which the incentive may be redeemed is disclosed in the solicitation.
(iii)
If the incentive entitles the recipient to save money on the purchase
of goods or services, the incentive is described as a cents-off, discount coupon, or similar term that clearly indicates that it is redeemable only for savings on purchases of goods or services.
(2)
The solicitation states or implies that the caller is likely to receive one of the prizes offered, by representing in the solicitation that other named persons have already won the other prizes being offered in the solicitation and that the recipient of the solicitation is therefore likely to receive the prize that has not been won by the other persons named in the solicitation, unless the recipient’s odds of receiving the remaining prize are clearly and conspicuously disclosed in the solicitation in close proximity to the list of the other named persons.
(i)
Nothing contained in this section shall be deemed to render lawful any activity that otherwise would violate Section 17537.
(j)
No information-access service shall offer a game of skill in which the cost of the call is billed on a usage-sensitive basis and in which answers to multiple choice questions of increasing difficulty are required in order to win, unless the solicitation clearly and conspicuously discloses the percentage of contestants anticipated to answer all questions correctly based on prior experience or, if the game is being operated for the first time, based on a good faith estimate.
(k)
This section does not apply to a regional telephone operating company, interexchange carrier, or local telephone company operating in those capacities, that in good faith telecommunicates an information-access program without knowledge that the program or related advertising violates any provision of this section, Section 17539.55, or Section 17539.6.
(
l
)
Neither this section, Section 17539.55, nor Section 17539.6 applies to the California State Lottery.

Legislative History

Amended by Stats. 1998, Ch. 599, Sec. 16. Effective January 1, 1999.