As used in this part 3, unless the context otherwise
requires:
(1) Commercial telephone seller or seller means a person who, in the
course of such person's business, vocation, or occupation, on the person's own
behalf or on behalf of another person, causes or attempts to cause a commercial
telephone solicitation to be made; except that commercial telephone seller or
seller does not include the following:
(a) A person offering or selling a security as defined in section 11-51-201 (17),
C.R.S., if:
(I) The security is either registered with the securities commissioner under
section 11-51-303 or 11-51-304, C.R.S., exempt from registration under section 11-51-307, C.R.S., or the transaction in the security is exempt under section 11-51-308,
C.R.S.; and
(II) The person is licensed by the securities commissioner as a broker-dealer
as defined in section 11-51-201 (2), C.R.S., unless expressly excluded from such
definition, or as a sales representative as defined in section 11-51-201 (14), C.R.S.,
unless expressly excluded from such definition, or such person is exempted from
licensing under section 11-51-402, C.R.S.;
(b) (I) A person soliciting the sale of any newspaper, magazine, or other
periodical of general circulation if such sales constitute a majority of such person's
business and business revenues; or
(II) A person soliciting the sale of any book, record, audio tape, compact disc,
or video if the person allows the purchaser to review the merchandise without
obligation for at least seven days and provides a full refund for the return of
undamaged merchandise within thirty days or if the person solicits such sale on
behalf of a membership club operating in conformity with 16 CFR 425;
(c) A person making telephone calls to a residential customer for the sole
purpose of polling or soliciting the expression of ideas, opinions, or votes, or a
person soliciting solely for a political or religious cause or purpose;
(d) A paid solicitor or charitable organization that is required to and has
complied with the registration, notice, and filing requirements of sections 6-16-104.6 and 6-16-104, respectively, or a person who is excluded from such notice and
reporting requirements by section 6-16-103 (7);
(e) A supervised financial organization, as defined in section 5-1-301 (45),
C.R.S., and its employees, when acting within the scope of their employment;
(f) A supervised lender, as defined in section 5-1-301 (46), C.R.S., and its
employees, when acting within the scope of their employment;
(g) A person selling insurance, as defined in section 10-1-102 (12), C.R.S., in
compliance with the requirements of title 10, C.R.S.;
(h) A person soliciting without the intent to complete and who does not in
fact complete the sales transaction during the telephone solicitation or another
telephone solicitation and who only completes the sales transaction at a later face-to-face meeting between the solicitor and the prospective purchaser, excluding a
face-to-face meeting, the sole purpose of which is to collect the payment or deliver
any item purchased, or a person soliciting a purchaser with whom the person has
had a previous face-to-face meeting in the course of such person's business;
(i) Any governmental entity or employee thereof, acting in the employee's
official capacity;
(j) A person soliciting telephone service, or licensed or franchised cable
television service, which is billed and paid on a daily, weekly, or monthly basis and
which can be canceled at any time without further obligation to the purchaser;
(k) A person or an affiliate of a person whose business is regulated by the
public utilities commission;
(l) A person or an affiliate of a person whose business is regulated by the
real estate commission;
(m) A person whose conduct is within the exclusive jurisdiction of the federal
commodity futures trading commission as granted under the federal Commodity
Exchange Act, as amended;
(n) A seller of food for immediate consumption when the sale to one
purchaser does not exceed three hundred dollars;
(o) A person who initially contacts the purchaser with a retail sales catalog
requesting a telephone call response, when the person allows the purchaser to
review the merchandise without obligation for at least seven days and provides a
full refund for the return of undamaged merchandise within thirty days after receipt
of the returned merchandise;
(p) An issuer or a subsidiary of an issuer that has a class of securities which
is subject to section 12 of the federal Securities Exchange Act of 1934, 15 U.S.C.
sec. 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;
(q) A person who has been operating for at least three years a retail business
establishment in Colorado under the same name as that used in connection with the
solicitation of sales by telephone if, on a continuing basis, the majority of the
seller's business involves the purchaser receiving the seller's goods and services at
the seller's business location;
(r) A person who has conducted business for at least three years under the
same name and in the same state and offers potential purchasers satisfaction
guaranteed by the sending of the product or providing the service and the
purchaser has an unqualified right to review and return or cancel for at least thirty
days;
(s) Any telephone marketing service company which provides telemarketing
sales services under written contract to sellers and has been operating
continuously for at least five years under the same business name and seventy-five
percent or more of its services are performed on behalf of sellers exempt from this
section. Nothing in this paragraph (s) shall be construed to exempt any seller that
contracts with a telephone marketing service company for telemarketing sales
services from the requirements set forth in section 6-1-303 or from the prohibitions
set forth in section 6-1-304.
(t) A person soliciting business solely from business purchasers who have
previously purchased identical or similar goods or services from the business
enterprise on whose behalf the person is calling.
(2) Commercial telephone solicitation means:
(a) Unsolicited telephone calls to a person initiated by a commercial
telephone seller or salesperson, or an automated dialing machine with or without a
recorded message device, for the purpose of inducing the person to purchase or
invest in goods, services, or property or offering an extension of credit; or
(b) Any other communication by a commercial telephone seller in which:
(I) A gift, award, or prize is offered and a telephone call response from the
intended purchaser is invited; or
(II) A loan, credit card, or other extension of credit is offered to a purchaser
who has not previously purchased from the person initiating the communication,
and a telephone call response from the intended purchaser is invited; or
(III) A sale is to be completed or an agreement to purchase is to be entered
into during the course of the telephone call response; or
(c) Any other communication by a commercial telephone seller which
includes representations about the price, quality, or availability of goods, services,
or property and which invites a response by telephone, including pay-per-call
service calls, or which is followed by a telephone call to the intended purchaser by
a salesperson.
(3) Pay-per-call means the use of a telephone number with a 900 prefix or
any other prefix under which liability for the service or product provided attaches to
the telephone bill of the individual calling such number.
(4) Principal means an owner, an officer of a corporation, a general partner
of a partnership, the sole proprietor of a sole proprietorship, a trustee of a trust, or
any other individual with similar supervisory functions with respect to any person.
(5) Purchaser means a person who receives or responds to a commercial
telephone solicitation.
(6) Salesperson means any person employed or authorized by a
commercial telephone seller to cause or attempt to cause a commercial telephone
solicitation to be made.
(7) Telephone sales transaction means any payment of money by a
purchaser in exchange for the promise of goods, services, property, or an extension
of credit by a commercial telephone seller and includes all communications which
precede such payment of money.