(a)For the purposes of this section:
(1)“Express oral authorization” means that a consumer has explicitly authorized an electronic funds transfer from his or her financial account for goods or services offered by a telemarketer:
(A)during a telephone call in which the telemarketer has clearly stated that the consumer is authorizing the transfer from his or her account and has further stated the consumer’s name, a description of the specific goods or services offered, any material terms of the transaction, the date on or after which the account will be debited, the amount of the transfer, a telephone number for consumer inquiries that is answered during normal business hours, and the date of the authorization; and
(B)where the telemarketer has either tape-recorded the entire telemarketi
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(a) For the purposes of this section:
(1) “Express oral authorization” means that a consumer has explicitly authorized an electronic funds transfer from his or her financial account for goods or services offered by a telemarketer:
(A) during a telephone call in which the telemarketer has clearly stated that the consumer is authorizing the transfer from his or her account and has further stated the consumer’s name, a description of the specific goods or services offered, any material terms of the transaction, the date on or after which the account will be debited, the amount of the transfer, a telephone number for consumer inquiries that is answered during normal business hours, and the date of the authorization; and
(B) where the telemarketer has either tape-recorded the entire telemarketing call on which the consumer has authorized the transaction and not disposed of the recording until at least four years after the authorization or has provided written notice to the consumer, prior to the settlement date of the transfer, confirming the terms of the authorization as described in subdivision (A) of this subdivision (1) and has not disposed of the written notice until at least four years after the notice was created. Isolated and inadvertent failure to comply with this record-keeping requirement shall not give rise to liability under this subsection, provided that the telemarketer has in place reasonable procedures designed to comply with this requirement.
(2) “Financial account” means a checking, savings, share, or other depository account.
(3) “Process” includes printing a check, draft, or other form of negotiable instrument drawn on or debited against a consumer’s financial account, formatting or transferring data for use in connection with the debiting of a consumer’s account by means of such an instrument or an electronic funds transfer, or arranging for such services to be provided to a telemarketer.
(4) “Telemarketer” means any person who initiates telephone calls to, or who receives telephone calls from, a consumer in connection with a plan, program, or campaign to market goods or services. The term “telemarketer” does not include:
(A) a federally insured depository institution or its subsidiary when it obtains or submits for payment a check, draft, or other form of negotiable instrument drawn on or debited against a person’s checking, savings, share, or other depository account at that institution;
(B) any person that submits a payment when the consumer authorizing the submission has, prior to July 1, 1997, entered into a written contract with the person for the issuance of a charge or credit card;
(C) any person who initiates telephone calls to or who receives telephone calls from a consumer in connection with collection of an amount due for goods or services previously provided to the consumer;
(D) any company registered with and regulated by the Public Utility Commission;
(E) any other category of persons that the Attorney General may exempt by rule consistent with the purposes of this section.
(b) It is an unfair and deceptive act and practice in commerce for any telemarketer directly or through an agent:
(1) to procure the services of any third-party delivery, courier, or other pickup service to obtain a consumer’s payment for goods, unless the goods are delivered at the time that the consumer’s payment is obtained by the courier;
(2) to obtain or submit for payment a check, draft, or other form of negotiable instrument drawn on a person’s financial account without the consumer’s prior written authorization or to dispose of the written authorization until at least four years after the authorization; or
(3) to obtain funds from a person’s financial account by means of an electronic funds transfer unless:
(A)(i) the consumer has initiated the telephone call to the telemarketer; or
(ii) the telemarketer and the consumer have a current written agreement for the provision of goods or services or the consumer has purchased goods or services from the telemarketer within the previous two years; and
(B) the telemarketer has obtained the consumer’s express oral authorization to the transfer prior to initiating the debit.
(c) It is an unfair and deceptive act and practice in commerce for a party other than a federally insured depository institution to process for payment from a consumer’s financial account, in connection with a telemarketer’s transaction with the consumer:
(1) a check, draft, or other form of negotiable instrument drawn on or debited against such account without the consumer’s prior written authorization; or
(2) an electronic funds transfer from such account for goods or services offered by a telemarketer, unless:
(A)(i) the consumer has initiated the telephone call to the telemarketer; or
(ii) the telemarketer and the consumer have a current written agreement for the provision of goods or services or the consumer has purchased goods or services from the telemarketer within the previous two years; and
(B) the telemarketer has obtained the consumer’s express oral authorization to the transfer prior to initiating the debit.
(d) In addition to the legal liability described in subsection (c) of this section, it is an unfair and deceptive act and practice in commerce for any person, including a third-party delivery, courier, or other pickup service, or the telemarketer’s financial institution as defined in 8 V.S.A. § 10202(5), but not including the consumer’s financial institution as defined in 8 V.S.A. § 10202(5), to provide substantial assistance to a telemarketer in violation of subsection (b) of this section when the person or the person’s authorized agent knows or consciously avoids knowing that the telemarketer is engaging in an unfair or deceptive act or practice in commerce.
(e) It is an unfair and deceptive act and practice in commerce for a party other than a federally insured depository institution who processes a telemarketing transaction for payment from a consumer’s financial account to:
(1) fail to obtain, before processing the transaction, any prior written authorization required by subdivision (b)(2) of this section or any tape recording or copy of a written confirmation required by subdivision (b)(3) of this section as part of the consumer’s express oral authorization; or
(2) dispose of a document required by subdivision (1) of this subsection, or of telemarketer applications or agreements, records of payments processed or returned, electronic communications relating to telemarketers, consumer complaints, or any other category of record that the Attorney General may prescribe by rule, until at least four years after the records were created. (Added 1997, No. 42, § 2; amended 2005, No. 5, § 1; 2007, No. 134 (Adj. Sess.), §§ 2-5.)