Kansas Session Laws Chapter 156

CHAPTER 156 SUBSTITUTE FOR SENATE BILL No. 573
An Act concerning telecommunications; relating to telephone solicitations and telemarket-
ing; amending K.S.A. 50-640 and 50-673 and K.S.A. 1997 Supp. 50-670 and repealing
the existing sections.

Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 50-640 is hereby amended to read as follows: 50-
640. (a) Except as provided in subsection (c)(1)(C), in addition to any
right otherwise to revoke, a consumer has the right to cancel a door-to-
door sale made within this state until midnight of the third business day
after the day on which the consumer signs an agreement or offer to pur-
chase which includes the disclosures required by this section.

(b) In connection with any door-to-door sale made within this state,
it constitutes an unfair and deceptive act or practice within the meaning
of K.S.A. 50-626, and amendments thereto, for any supplier to:

(1) Fail to furnish the consumer with a fully completed receipt or
copy of any contract pertaining to such sale at the time of its execution,
which is in the same language, Spanish for example, as that principally
used in the oral sales presentation and which shows the date of the trans-
action and contains the name and address of the supplier, and in imme-
diate proximity to the space reserved in the contract for the signature of
the consumer or on the front page of the receipt if a contract is not used
and in boldface type of a minimum size of 10 points, a statement in
substantially the following form:

``YOU THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY
TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AF-
TER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED
NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF
THIS RIGHT.'' For purposes of the required notices under this section,
the term ``buyer'' shall have the same meaning as the term ``consumer.''

(2) Fail to furnish each consumer, at the time the consumer signs the
door-to-door sales contract or otherwise agrees to buy consumer property
or services from the supplier, a completed form in duplicate, captioned
``NOTICE OF CANCELLATION,'' which shall be attached to the con-
tract or receipt and be easily detachable, and which shall contain in 10-
point boldface type the following information and statements in the same
language, Spanish for example, as that used in the contract:

NOTICE OF CANCELLATION
(Enter date of transaction)
____________________ YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PEN-
ALTY OR OBLIGATION, WITHIN THREE BUSINESS DAYS FROM
THE ABOVE DATE.

IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAY-
MENTS MADE BY YOU UNDER THE CONTRACT OR SALE, AND
ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU WILL BE
RETURNED WITHIN 10 BUSINESS DAYS FOLLOWING RE-
CEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE,
AND ANY SECURITY INTEREST ARISING OUT OF THE TRANS-
ACTION WILL BE CANCELED.

IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE
SELLER AT YOUR RESIDENCE, IN SUBSTANTIALLY AS GOOD
CONDITION AS WHEN RECEIVED, ANY PROPERTY DELIV-
ERED TO YOU UNDER THIS CONTRACT OR SALE; OR YOU
MAY, IF YOU WISH, COMPLY WITH THE INSTRUCTIONS OF
THE SELLER REGARDING THE RETURN SHIPMENT OF THE
PROPERTY AT THE SELLER'S EXPENSE AND RISK.

IF YOU DO MAKE THE PROPERTY AVAILABLE TO THE
SELLER, AND IF THE SELLER DOES NOT PICK SUCH PROP-
ERTY UP WITHIN 20 DAYS OF THE DATE OF YOUR NOTICE OF
CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE
PROPERTY WITHOUT ANY FURTHER OBLIGATION. IF YOU
FAIL TO MAKE THE PROPERTY AVAILABLE TO THE SELLER,
OR IF YOU AGREE TO RETURN THE PROPERTY TO THE
SELLER AND FAIL TO DO SO, THEN YOU REMAIN LIABLE FOR
PERFORMANCE OF ALL OBLIGATIONS UNDER THE CON-
TRACT.

TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A
SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE
OR ANY OTHER WRITTEN NOTICE, OR SEND A TELEGRAM,
TO ____________ AT ____________________________
(Name of Seller) (Address of Seller's Place of Business)
NOT LATER THAN MIDNIGHT OF ____________.(date)
I HEREBY CANCEL THIS TRANSACTION.

_______________________________________________________
(Date) (Buyer's Signature)
(3) Fail, before furnishing copies of the ``notice of cancellation'' to
the consumer, to complete both copies by entering the name of the sup-
plier, the address of the supplier's place of business, the date of the trans-
action, and the date, not earlier than the third business day following the
date of the transaction, by which the consumer may give notice of can-
cellation.

(4) Include in any door-to-door sale contract or receipt any confession
of judgment or any waiver of any of the rights to which the consumer is
entitled under this section including specifically such consumer's right to
cancel the sale in accordance with the provisions of this section.

(5) Fail to inform each consumer orally, at the time such consumer
signs the contract or purchases the property or services, of such con-
sumer's right to cancel.

(6) Misrepresent in any manner the consumer's right to cancel.

(7) Fail or refuse to honor any valid notice of cancellation by a con-
sumer and within 10 business days after the receipt of such notice, to (i)
refund all payments made under the contract or sale; (ii) return any prop-
erty traded in, in substantially as good condition as when received by the
supplier; (iii) cancel and return any negotiable instrument executed by
the consumer in connection with the contract or sale and take any action
necessary or appropriate to terminate promptly any security interest cre-
ated in the transaction.

(8) Negotiate, transfer, sell, or assign any note or other evidence of
indebtedness to a finance company or other third party prior to midnight
of the fifth business day following the day the contract was signed or the
property or services were purchased.

(9) Fail, within 10 business days of receipt of the consumer's notice
of cancellation, to notify the consumer whether the supplier intends to
repossess or to abandon any shipped or delivered property.

(c) For the purposes of this section the following definitions shall
apply:

(1) ``Door-to-door sale'' means a sale, lease or rental of consumer
property or services with a purchase price of $25 or more, whether under
single or multiple consumer transactions, in which the supplier or the
supplier's representative personally solicits the sale, including those in
response to or following an invitation by the consumer, and the con-
sumer's agreement or offer to purchase is made at a place other than the
place of business of the supplier. The term ``door-to-door sale'' does not
include a transaction:

(A) Made pursuant to prior negotiations in the course of a visit by
the consumer to a retail business establishment having a fixed permanent
location where the property is exhibited or the services are offered for
sale on a continuing basis; or

(B) in which the consumer is accorded the right of rescission by the
provisions of the consumer credit protection act (15 USCS 1635) or reg-
ulations issued pursuant thereto; or

(C) in which the consumer has initiated the consumer transaction and
the property or services are needed to meet a bona fide immediate per-
sonal emergency of the consumer, and the consumer furnishes the sup-
plier with a separate dated and signed personal statement in the con-
sumer's handwriting describing the situation requiring immediate remedy
and expressly acknowledging and waiving the right to cancel the sale
within three business days; or

(D) conducted and consummated entirely by mail or telephone; and
without any other contact between the consumer and the supplier or its
representative prior to delivery of the property or performance of the
services; or

(E) in which the consumer has initiated the transaction and specifi-
cally requested the supplier to visit the consumer's home for the purpose
of repairing or performing maintenance upon the consumer's real or per-
sonal property. If in the course of such a visit, the supplier sells the
consumer the right to receive additional services or property other than
replacement parts necessarily used in performing the maintenance or in
making the repairs, the sale of the additional property or services would
not fall within this exclusion; or

(F) pertaining to the sale or rental of real property, to the sale of
insurance or to the sale of securities or commodities by a broker-dealer
registered with the securities and exchange commission; or

(G) that occurs on the state fairgrounds during the annual Kansas
state fair between a consumer and a vendor who has been authorized by
the state fair management to do business on the state fairgrounds.

(2) ``Place of business'' means the main or permanent branch office
of a supplier.

(3) ``Purchase price'' means the total price paid or to be paid for the
consumer property or services, including all interest and service charges.

(4) ``Business day'' means any calendar day except Sunday, or any
legal holiday as defined by K.S.A. 60-206 and amendments thereto.

Sec. 2. K.S.A. 1997 Supp. 50-670 is hereby amended to read as fol-
lows: 50-670. (a) As used in this section:

(1) ``Consumer telephone call'' means a call made by a telephone
solicitor to the residence of a consumer for the purpose of soliciting a
sale of any property or services to the person called, or for the purpose
of soliciting an extension of credit for property or services to the person
called, or for the purpose of obtaining information that will or may be
used for the direct solicitation of a sale of property or services to the
person called or an extension of credit for such purposes;

(2) ``unsolicited consumer telephone call'' means a consumer tele-
phone call other than a call made:

(A) In response to an express request of the person called;

(B) primarily in connection with an existing debt or contract, payment
or performance of which has not been completed at the time of such call;

(C) to any person with whom the telephone solicitor or the telephone
solicitor's predecessor in interest ~~has~~ had an existing business relationship
if the solicitor is not an employee, a contract employee or an independent
contractor of a provider of telecommunications services; or

(D) by a newspaper publisher or such publisher's agent or employee
in connection with such publisher's business;

(3) ``telephone solicitor'' means any natural person, firm, organiza-
tion, partnership, association or corporation who makes or causes to be
made a consumer telephone call, including, but not limited to, calls made
by use of automatic dialing-announcing device;

(4) ``automatic dialing-announcing device'' means any user terminal
equipment which:

(A) When connected to a telephone line can dial, with or without
manual assistance, telephone numbers which have been stored or pro-
grammed in the device or are produced or selected by a random or se-
quential number generator; or

(B) when connected to a telephone line can disseminate a recorded
message to the telephone number called, either with or without manual
assistance;

(5) ``negative response'' means a statement from a consumer indicat-
ing the consumer does not wish to listen to the sales presentation or
participate in the solicitation presented in the consumer telephone call.

(b) Any telephone solicitor who makes an unsolicited consumer tel-
ephone call to a residential telephone number shall:

(1) Identify themselves;

(2) identify the business on whose behalf such person is soliciting;

(3) identify the purpose of the call immediately upon making contact
by telephone with the person who is the object of the telephone solici-
tation;

(4) ~~immediately~~ promptly discontinue the solicitation if the person
being solicited gives a negative response at any time during the consumer
telephone call; and

(5) hang up the phone, or in the case of an automatic dialing-an-
nouncing device operator, disconnect the automatic dialing-announcing
device from the telephone line within 25 seconds of the termination of
the call by the person being called.

(c) A telephone solicitor shall not withhold the display of the tele-
phone solicitor's telephone number from a caller identification service
when that number is being used for telemarketing purposes and when
the telephone solicitor's service or equipment is capable of allowing the
display of such number.

(d) A telephone solicitor shall not transmit any written information
by facsimile machine or computer to a consumer after the consumer
requests orally or in writing that such transmissions cease.

(e) A telephone solicitor shall not obtain by use of any professional
delivery, courier or other pickup service receipt or possession of a con-
sumer's payment unless the goods are delivered with the opportunity to
inspect before any payment is collected.

~~(e)~~ (f) Local exchange carriers and telecommunications carriers shall
not be responsible for the enforcement of the provisions of this section.

~~(f)~~ (g) Any violation of this section is an unconscionable act or practice
under the Kansas consumer protection act.

~~(g)~~ (h) This section shall be part of and supplemental to the Kansas
consumer protection act.

Sec. 3. K.S.A. 50-673 is hereby amended to read as follows: 50-673.
The provisions of K.S.A. 50-671 through 50-674 and amendments thereto
do not apply to a transaction:

(a) That has been made in accordance with prior negotiations in the
course of a visit by the consumer to a merchant operating a business
establishment that has a fixed permanent location and where consumer
goods or services are displayed or offered for sale on a continuing basis;

(b) in which the business establishment, or the establishment's pred-
ecessor in interest, making the solicitation has made a prior sale to the
consumer, is establishing a business to business relationship or has a clear,
preexisting business relationship with the consumer, provided that rela-
tionship resulted in the consumer becoming aware of the full name, busi-
ness address and phone number of the establishment and is not a pro-
vider of telecommunications services;

(c) in which the consumer purchases goods or services pursuant to
an examination of a television, radio, or print advertisement or a sample,
brochure, catalogue, or other mailing material of the telemarketer that
contains:

(1) The name, address, and telephone number of the telemarketer;

(2) a full description of the goods or services being sold along with a
list of all prices or fees being requested, including any handling, shipping,
or delivery charges; and

(3) any limitations or restrictions that apply to the offer; or

(d) in which the consumer may obtain a full refund for the return of
undamaged and unused goods or a cancellation of services notice to the
seller ~~within seven days after receipt by the consumer~~ after the consumer
has had at least seven days to review the goods or services, and the seller
will process the refund within 30 days after receipt of the returned mer-
chandise by the consumer or the refund for any services not performed
or a pro rata refund for any services not yet performed for the consumer.
The return and refund privilege shall be disclosed to the consumer orally
by telephone or in writing with advertising, promotional material or with
delivery of the product or service. The words ``satisfaction guaranteed,''
``free inspection,'' ``no risk guarantee'' or similar words and phrases meet
the requirements of this act.

(e) Any telemarketer who, pursuant to this section, is exempted from
K.S.A. 50-671 through 50-674 and amendments thereto, impliedly war-
rants the goods or property to be satisfactory to the consumer to the
extent that the consumer shall have the right to choose at any time within
the seven-day refund period, to cancel the sale by notifying the telemar-
keter in writing, provided the consumer returns to the telemarketer the
goods sold in substantially the same condition as when they were received
by the consumer. A telemarketer that has received such notice to cancel
from a consumer shall then, within 30 business days of the receipt of such
notice:

(1) Refund all payments made, including any down payment made
under the agreement;

(2) return any goods or property traded in to the seller on account of
or in contemplation of the agreement, in substantially the same condition
as when received by the telemarketer; and

(3) take any action necessary or appropriate to terminate promptly
any security interest created in connection with the agreement.

Sec. 4. K.S.A. 50-640 and 50-673 and K.S.A. 1997 Supp. 50-670 are
hereby repealed.

Sec. 5. This act shall take effect and be in force from and after its
publication in the statute book.

Approved May 13, 1998

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