HB 47 amended an existing law concerning telephone solicitations, KRS 367.46951-.46999. The greatest change is the creation of the zero call list. Any person who chooses to put his or her name on this list (maintained by the Attorney General's Division of Consumer Protection) ensures that no Kentucky unsolicited telephone solicitations will be made to his or her home telephone number. (That sounds like double talk, but the law allows for the possibility that a person on the zero call list might still invite a solicitation call from a particular vendor. For example, Mr. Zero Call could sign a form requesting a call when he visits that vendor's booth at the State Fair.) Once on the zero call list a name remains there until its owner asks to remove it.

The zero call list will be made available at no cost to any company or telemarketing company subject to this law. Once each quarter, the zero call list will be updated and distributed in hard copy and electronic versions. The law requires the electronic version to be searchable. The law also requires that the merchant or telemarketing company may only use this list for the purpose of preventing telephone solicitation calls to persons whose names appear on the list.

Aside from the zero call list, this Act provides dos and don'ts for companies making telephone solicitations. To know whether those rules apply, you need to know what calls come under the definition of "telephone solicitation." That term includes calls that your employees (or hired telemarketers) would make to potential subscribers, where the purpose of the call is to solicit a subscription or obtain information that may be used for the solicitation of a subscription.

The Act then goes on to carve out several examples of telephone calls which would not fall within the definition of "telephone solicitation" and, therefore, would not be subject to the dos and don'ts in the Act.

First, if you mail an unrequested notice to potential subscribers who have not previously subscribed, and a potential customer makes inquiries (for example, by returning a pre-addressed stamped postcard), your telephone call (or facsimile transmission) to respond to those inquiries is not necessarily a "telephone solicitation" under the Act. Your telephone calls are subject to the Act IF the notices the newspaper initially mailed to the potential subscriber contained any of the following:

1. A statement or implication that the potential subscriber has been specially selected to receive the notice or offer contained in the notice;

2. A statement or implication that the potential subscriber will receive a prize or gift if he calls the newspaper or its telemarketer; or

3. A statement or implication that a paid subscription will come with an additional gift or enticement.

If your mailed notification does none of those things, the call you make in answer to the potential customer's response card is not covered by the Act.

The definition of "telephone solicitation" also excludes any telephone call to someone with whom the newspaper "has a prior or existing business relationship" (e.g., current or lapsed subscriber) and any call made in response to an express request of the person called, unless the request was made during a prior telephone solicitation.

If the solicitation call that you want to make does not fall within one of the above categories, your call is covered by the Act. However, the Act does not absolutely prohibit "telephone solicitations." Instead, it contains dos and don'ts for the person making the telephone solicitation. Taken together §2 of the Act (which lists the conduct which is prohibited) with KRS 367.46953 of the existing statute (which lists the affirmative requirements for making telephone solicitations), newspapers soliciting subscriptions by phone must follow these rules:

1. As soon as someone answers the phone, the caller must state his actual name, the newspaper's name, the newspaper's telephone number or address and the city and state where the caller is physically located;

2. Within the first 30 seconds of the call, the caller must ask if the consumer is interested in listening to a sales presentation about the newspaper, and if the consumer says no, the caller must immediately close the conversation;

3. The consumer may not be asked for a credit card number unless several rules are followed. Those rules include: before submitting a charge to the consumer's credit or bank account, the newspaper/telemarketer must receive a signed copy of a written contract or order for the subscription or, if there's no written contract or order, the newspaper must wait until 14 days have elapsed after the delivery of the first newspaper to the consumer and the consumer has not called to cancel the subscription and request his money back.

4. The caller must ask if the person answering is 18 or older and may not solicit a subscription from anyone under 18

5. May not block caller ID;

6. May not let the telephone ring more than 30 seconds;

7. May not call a person who has previously said he does not wish to receive solicitation calls from the newspaper;

8. May not call anyone on the zero call list;

9. May call only between 10 a.m. and 9 p.m. local time at the called person's location

10. May not threaten, intimidate or use profane language or act in a way a reasonable person would consider annoying, abusive or harassing. There are 19 categories of prohibited conduct in the statute. These are the ones that seemed pertinent to newspaper subscription calls. The entire list is found at KRS 367.46955, as amended by HB 47. So long as newspapers comply with the requirements listed above, they may call non-subscribers with whom they have had no recent relationship.

They may call people who accepted the newspaper's direct-mail offer of X weeks free to encourage them to pay to continue the subscription. They may call people to whom they have sent X unsolicited weeks free to encourage them to continue a paid subscription – so long as the newspapers comply with the dos and don'ts in the Act.

If anyone who put her name on the zero call list wishes to complain that she, nevertheless, received a telephone solicitation, the Act requires the complaint to be in writing and verified by the claimant. The claimant can complain to the attorney general or can file a lawsuit. In either case, the Act provides that the newspaper (or merchant or telemarketer) can state as a defense that it has the current zero call list and makes reasonable efforts to avoid calling persons on the list.

The same is true for complaints about violations of the other requirements of the Act, that is, the dos and don'ts of making telephone solicitation calls. If someone accused the newspaper of that, the newspaper could defend on the basis that it has established and carefully implemented reasonable practices and procedures to prevent violations of the Act.

Before HB 47 becomes effective on July 15, every Kentucky newspaper should take care to do two things. First, put into place procedures for making telephone solicitations which comply with the Act.

Second, educate anyone who might make telephone solicitation calls on the newspaper's behalf as to the dos and don'ts set out in this law and the newspaper's procedures for compliance with the Act.

There's strong incentive to comply. The Act provides for civil penalties of up to $5,000 for each violation. The attorney general enforces those penalties and may, according to the Act, compromise the amount of the penalty based upon the gravity of the violation, the number of times that company/telemarketer has been cited, that company's/telemarketer's good faith intent to comply after notification of the violation, and the financial resources of the company/telemarketer.

In addition to the civil penalty, the Act provides for criminal penalties for violations of the zero call list requirements. It is a Class A misdemeanor to use the zero call list for any other than its intended purpose. It is a Class D felony if a company or telemarketer knowingly and willfully makes unsolicited telephone solicitation calls to people on the zero call list three times during one calendar year.

Any newspaper which engages the assistance of a telemarketing firm to assist with telephone solicitations, should also take note of two other sections of the Act. The Act requires a telemarketing company doing business in Kentucky to obtain a license to do business from the Consumer Protection Division of the Office of the Attorney General on an annual basis. The fee to be paid each year is $300. The telemarketing company must also maintain a bond issued by a surety company in the amount of $50,000. The proceeds of the bond would be used to compensate any individual injured by the telemarketing company's violation of the Act.

If you have any questions about HB 47 or telephone solicitation calls in general, don't hesitate to call you Hotline Attorneys:

Jon L. Fleischaker: (502) 540-2319

Kimberly K. Greene: (502) 540-2350

R. Kenyon Meyer: (502) 540-2325

Cheryl R. Winn: (502) 540-2334