Nebraska
State Statutes (as of
6/09/08)
Telemarketing and Prize Promotions Act
Contact:
Nebraska Attorney General
Consumer Protection Office
(402) 471-2811
______________________________________________________________________________________________
Section 86-212
Act, how cited.
Sections
86-212 to 86-235 shall be known and may be cited as the Telemarketing and Prize
Promotions Act.
Source:
Laws 1999, LB 469, ? 1
Laws 2001, LB 165, ? 1
R.S.Supp.,2001, ? 86-2001
Laws 2002, LB 1105, ? 74
~Revised Statutes Cumulative
Supplement, 2006
Section 86-213
Definitions, where found.
For
purposes of the Telemarketing and Prize Promotions Act, the definitions found
in sections 86-214 to 86-223 apply.
Source:
Laws 1999, LB 469, ? 2
R.S.1943, (1999), ? 86-2002
Laws 2002, LB 1105, ? 75
~Revised Statutes Cumulative
Supplement, 2006
Section 86-214
Consumer, defined.
Consumer
means an actual or prospective purchaser, lessee, or recipient of consumer
goods or services bought primarily for use for personal, family, or household
purposes.
Source:
Laws 2002, LB 1105, ? 76
~Revised Statutes Cumulative
Supplement, 2006
Section 86-215
Consumer goods or services, defined.
Consumer
goods or services means any tangible personal property, merchandise, or
services normally used for personal, family, or household purposes and not for
resale or for use or consumption in trade or business.
Source:
Laws 2002, LB 1105, ? 77
~Revised Statutes Cumulative
Supplement, 2006
Section 86-216
Consumer telephone call, defined.
Consumer
telephone call means a telephone call made by a seller for the purpose of
soliciting a sale of any consumer goods or services to the person called, for
the purpose of soliciting an extension of credit for consumer goods or services
to the person called, or for the purpose of obtaining information that may be
used for the direct solicitation of a sale of consumer goods or services to the
person called or an extension of credit for such purposes.
Source:
Laws 2002, LB 1105, ? 78
~Revised Statutes Cumulative
Supplement, 2006
Section 86-217
Prize, defined.
Prize
means anything offered, or purportedly offered, and given, or purportedly
given, to a person by chance. Prize does not include an item offered in a
promotion for a book, recording, video, multimedia, or similar club in
compliance with 16 C.F.R. part 425, as such regulations existed on January 1,
2002, or a continuity plan or single sale of merchandise or service where there
is no minimum purchase required.
Source:
Laws 2002, LB 1105, ? 79
~Revised Statutes Cumulative
Supplement, 2006
Section 86-218
Prize promotion, defined.
Prize
promotion means (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.
Source:
Laws 2002, LB 1105, ? 80
~Revised Statutes Cumulative
Supplement, 2006
Section 86-219
Seller, defined.
Seller
means any person or organization who individually or through salespersons
initiates unsolicited consumer telephone calls in order to (1) sell, lease, or
rent consumer goods or services, (2) offer gifts or prizes with the intent to
sell, lease, or rent consumer goods or services, or (3) represent to a consumer
that the consumer has won or will receive a prize by telephonic means or by
written notice sent through the mail in which the goods and services and all
the material terms of the transaction are not fully described and which require
that the consumer contact the seller by telephone to learn about or initiate
the transaction. Seller does not include a telecommunications company as
defined in section 86-119 when the telecommunications company is offering
telecommunications service of any kind which are subject to the verification
provisions of (i) the Telephone Consumer Slamming
Prevention Act or (ii) the federal regulations for changing long distance
service under subpart K of 47 C.F.R. part 64, as such regulations existed on
January 1, 2002.
Source:
Laws 2002, LB 1105, ? 81
Cross References:
Telephone Consumer Slamming Prevention Act,see section 86-201.
~Revised Statutes Cumulative
Supplement, 2006
Section 86-220
Solicitor, defined.
Solicitor
means any person, who is not the seller offering a prize promotion, who represents to an individual that the individual has won
or will receive a prize.
Source:
Laws 2002, LB 1105, ? 82
~Revised Statutes Cumulative
Supplement, 2006
Section 86-221
Sponsor, defined.
Sponsor
means any person on whose behalf a solicitor gives a prize but who is not the
seller offering a prize promotion.
Source:
Laws 2002, LB 1105, ? 83
~Revised Statutes Cumulative
Supplement, 2006
Section 86-222
Unsolicited consumer telephone call,
defined.
Unsolicited
consumer telephone call means a consumer telephone call other than a call made:
(1) In
response to an express request of the person called;
(2)
Primarily in connection with an existing debt or contract, for which payment or
performance has not been completed at the time of such a call;
(3) To any
person with whom the seller has a clearly established business relationship; or
(4) By a
magazine or newspaper publisher or such publisher's agent or employee in
connection with such publisher's business.
Source:
Laws 2002, LB 1105, ? 84
~Revised Statutes Cumulative
Supplement, 2006
Section 86-223
Verifiable retail value, defined.
Verifiable
retail value means the price (1) at which the solicitor or sponsor can demonstrate
that a substantial number of prizes have been sold within the prior twelve
months by a person other than the solicitor in the trade area in which the
prize notice is given or (2) no more than one and one-half times the amount the
solicitor or sponsor paid for the prize.
Source:
Laws 2002, LB 1105, ? 85
~Revised Statutes Cumulative
Supplement, 2006
Section 86-224
Payment; consumer's express verifiable
authorization required.
A seller
may not obtain or submit for payment a check, draft, or other form of
negotiable paper drawn on a consumer's checking, savings, share, or similar
account, without that consumer's express verifiable authorization. Such
authorization shall be deemed verifiable if any of the following means are
employed:
(1)
Express written authorization by the consumer, which may include the consumer's
signature on the negotiable instrument;
(2)
Express oral authorization which is tape recorded and made available upon
request to the consumer's financial institution or to the consumer and which
evidences clearly both the consumer's authorization of payment for the goods
and services that are the subject of the sales offer and the consumer's receipt
of all of the following information:
(a) The
date of the check, draft, or other form of negotiable paper;
(b) The
amount of the check, draft, or other form of negotiable paper;
(c) The payor's name;
(d) The
number of check, draft, or negotiable paper payments, if more than one;
(e) A
telephone number for consumer inquiry that is answered during normal business
hours; and
(f) The
date of the consumer's oral authorization; or
(3)
Written confirmation of the transaction, sent to the consumer prior to
submission for payment of the consumer's check, draft, or other form of
negotiable paper that includes:
(a) All of
the information contained in subdivision (2) of this section; and
(b) The
procedures by which the consumer can obtain a refund from the seller in the
event the confirmation is inaccurate.
Source:
Laws 1999, LB 469, ? 3
R.S.1943, (1999), ? 86-2003
Laws 2002, LB 1105, ? 86
~Revised Statutes Cumulative
Supplement, 2006
Section 86-225
Consumer rights.
(1) In
addition to any other right to revoke an offer:
(a) The
consumer obligated for any part of the purchase price may cancel the telephone
sale until midnight of the fifth business day after the day on which the
consumer has received written notice from the seller notifying the consumer of
his or her right to cancel the telephone sale. Written notice shall include all
of the information included in subdivision (2) of section 86-224 and the
procedures by which a consumer may obtain a refund; and
(b) The
seller shall disclose the refund policy to the consumer orally by telephone, in
writing with advertising or promotional material, or with delivery of the
products or services, and shall issue a refund within thirty days after the
date on which the seller receives returned merchandise or notice of
cancellation. A seller who discloses in writing that a sale
is made or provided "satisfaction guaranteed", "with free
inspection", "no-risk guarantee", or similar words or phrases
shall be deemed to meet the requirements of the review and return for refund
policy.
(2)
Subdivision (1)(a) of this section does not apply to a
sale in which the seller at a minimum has a policy of giving the consumer the
right to review goods or services for a period of at least seven days after the
date of delivery, accepting returns or canceling services, and providing a
refund for the return of its unused and undamaged merchandise or canceled
services.
Source:
Laws 1999, LB 469, ? 4
R.S.1943, (1999), ? 86-2004
Laws 2002, LB 1105, ? 87
~Revised Statutes Cumulative Supplement,
2006
Section 86-226
Restriction on obtaining consumer's payment.
It is
unlawful for a seller 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 and can be inspected.
Source:
Laws 1999, LB 469, ? 5
R.S.1943, (1999), ? 86-2005
Laws 2002, LB 1105, ? 88
~Revised Statutes Cumulative
Supplement, 2006
Section 86-227
Restriction on advance payment.
It is
unlawful for a seller to request or receive payment or other consideration, in
advance, from a consumer to recover or otherwise aid in the return of money or
any other item lost by the consumer in a prior telemarketing transaction. This
section does not apply to services provided to a consumer by an attorney
licensed to practice law.
Source:
Laws 1999, LB 469, ? 6
R.S.1943, (1999), ? 86-2006
Laws 2002, LB 1105, ? 89
~Revised Statutes Cumulative
Supplement, 2006
Section 86-228
Prize promotions; information required.
In the
case of prize promotions, it is unlawful for a seller to fail to provide the
following information:
(1) The
odds of winning or receiving the prize and, if the odds are not calculable in
advance, the factors used in calculating the odds;
(2) That
no purchase and no payment is necessary to win;
(3) All
material costs or conditions to receive or redeem a prize that is the subject
of the prize promotion;
(4) The no-purchase
or no-payment method of participating in the prize promotion, with either
instructions on how to participate or an address or local or toll-free
telephone number to which customers may write or call for information on how to
participate;
(5) The
true name and address of the solicitor, sponsor, or seller offering a prize
when the consumer is told he or she has won or will receive a prize; and
(6) The
verifiable retail value of each prize the consumer is told he or she has won or
will receive.
Source:
Laws 1999, LB 469, ? 7
R.S.1943, (1999), ? 86-2007
Laws 2002, LB 1105, ? 90
~Revised Statutes Cumulative
Supplement, 2006
Section 86-229
Solicitor, sponsor, or seller; prohibited acts.
A
solicitor, sponsor, or seller shall not:
(1)
Misrepresent the source of any written prize notice;
(2)
Represent directly or by implication that the number of individuals
eligible for the prize is limited or that an individual has won or will receive
a particular prize unless that representation is true;
(3)
Misrepresent the value of a prize; or
(4)
Request or accept any payment, or create an impression that any payment is
required, from an individual prior to the receipt of a written prize notice by
such individual if the solicitor, sponsor, or seller represents to such
individual that he or she has won or will receive a prize. A written prize
notice under this subdivision shall contain all the information required in
section 86-228.
Source:
Laws 1999, LB 469, ? 8
Laws 2001, LB 165, ? 2
R.S.Supp.,2001, ? 86-2008
Laws 2002, LB 1105, ? 91
~Revised Statutes Cumulative
Supplement, 2006
Section 86-230
Records required.
Sellers
shall maintain records for twenty-four months in compliance with 16 C.F.R. 310.5, as such regulation existed on January 1, 2002.
Source:
Laws 1999, LB 469, ? 9
R.S.1943, (1999), ? 86-2009
Laws 2002, LB 1105, ? 92
~Revised Statutes Cumulative
Supplement, 2006
Section 86-231
Burden of proof.
In any
civil proceeding alleging a violation of the Telemarketing and Prize Promotions
Act, the burden of proving an exemption from the act or an exemption from a
definition in the act is upon the person claiming it. In any criminal
proceeding alleging a violation of the act, the burden of producing evidence
pertaining to a definition or an exemption is upon the person claiming it.
Source:
Laws 1999, LB 469, ? 10
R.S.1943, (1999), ? 86-2010
Laws 2002, LB 1105, ? 93
~Revised Statutes Cumulative
Supplement, 2006
Section 86-232
Act; how construed.
The
Telemarketing and Prize Promotions Act shall not be construed to limit the
remedies available to consumers, the Attorney General, or any county attorney
under the Uniform Deceptive Trade Practices Act or any other state or federal
law.
Source:
Laws 1999, LB 469, ? 11
R.S.1943, (1999), ? 86-2011
Laws 2002, LB 1105, ? 94
Cross References:
Uniform Deceptive Trade Practices Act,see section 87-306.
~Revised Statutes Cumulative
Supplement, 2006
Section 86-233
Consumer; remedies.
Any
consumer that suffers a loss or harm as a result of a violation of the Telemarketing
and Prize Promotions Act may recover actual damages, attorney's fees, court
costs, and any other remedies provided by law. The state, on behalf of its
residents who have suffered a loss or harm as a result of a violation of the
act, may seek actual damages or other remedies provided by law.
Source:
Laws 1999, LB 469, ? 12
R.S.1943, (1999), ? 86-2012
Laws 2002, LB 1105, ? 95
~Revised Statutes Cumulative
Supplement, 2006
Section 86-234
Violation; penalty.
A
violation of the Telemarketing and Prize Promotions Act is a Class I
misdemeanor.
Source:
Laws 1999, LB 469, ? 13
R.S.1943, (1999), ? 86-2013
Laws 2002, LB 1105, ? 96
~Revised Statutes Cumulative
Supplement, 2006
Section 86-235
Violation; civil penalty.
Any person
who violates the Telemarketing and Prize Promotions Act shall be subject to a
civil penalty of not more than two thousand dollars for each violation. The
Attorney General, acting in the name of the state, may seek recovery of such
civil penalties in a civil action.
Source:
Laws 2001, LB 165, ? 3
R.S.Supp.,2001, ? 86-2014
Laws 2002, LB 1105, ? 97
~Revised Statutes Cumulative
Supplement, 2006