-CITE-

15 USC CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND

ABUSE PREVENTION 01/06/03

-EXPCITE-

TITLE 15 - COMMERCE AND TRADE

CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND ABUSE PREVENTION

.

-HEAD-

CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND ABUSE PREVENTION

-MISC1-

Sec.

6101. Findings.

6102. Telemarketing rules.

(a) In general.

(b) Rulemaking.

(c) Enforcement.

(d) Securities and Exchange Commission rules.

(e) Commodity Futures Trading Commission rules.

6103. Actions by States.

(a) In general.

(b) Notice.

(c) Construction.

(d) Actions by Commission.

(e) Venue; service of process.

(f) Actions by other State officials.

6104. Actions by private persons.

(a) In general.

(b) Notice.

(c) Action by Commission.

(d) Cost and fees.

(e) Construction.

(f) Venue; service of process.

6105. Administration and applicability of chapter.

(a) In general.

(b) Actions by Commission.

(c) Effect on other laws.

6106. Definitions.

6107. Enforcement of orders.

(a) General authority.

(b) Appointment.

(c) Request for appointment.

(d) Termination of authority.

6108. Review.

-CITE-

15 USC Sec. 6101 01/06/03

-EXPCITE-

TITLE 15 - COMMERCE AND TRADE

CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND ABUSE PREVENTION

-HEAD-

Sec. 6101. Findings

-STATUTE-

The Congress makes the following findings:

(1) Telemarketing differs from other sales activities in that

it can be carried out by sellers across State lines without

direct contact with the consumer. Telemarketers also can be very

mobile, easily moving from State to State.

(2) Interstate telemarketing fraud has become a problem of such

magnitude that the resources of the Federal Trade Commission are

not sufficient to ensure adequate consumer protection from such

fraud.

(3) Consumers and others are estimated to lose $40 billion a

year in telemarketing fraud.

(4) Consumers are victimized by other forms of telemarketing

deception and abuse.

(5) Consequently, Congress should enact legislation that will

offer consumers necessary protection from telemarketing deception

and abuse.

-SOURCE-

(Pub. L. 103-297, Sec. 2, Aug. 16, 1994, 108 Stat. 1545.)

-MISC1-

SHORT TITLE OF 2001 AMENDMENT

Pub. L. 107-56, title X, Sec. 1011(a), Oct. 26, 2001, 115 Stat.

396, provided that: ''This section (amending sections 6102 and 6106

of this title and sections 917 and 2325 of Title 18, Crimes and

Criminal Procedure) may be cited as the 'Crimes Against Charitable

Americans Act of 2001'.''

SHORT TITLE OF 2000 AMENDMENT

Pub. L. 106-534, Sec. 1, Nov. 22, 2000, 114 Stat. 2555, provided

that: ''This Act (enacting provisions set out as notes under this

section and section 3732 of Title 42, The Public Health and

Welfare) may be cited as the 'Protecting Seniors From Fraud Act'.''

SHORT TITLE

Section 1 of Pub. L. 103-297 provided that: ''This Act (enacting

this chapter and section 9b of Title 7, Agriculture, and amending

section 52 of this title) may be cited as the 'Telemarketing and

Consumer Fraud and Abuse Prevention Act'.''

CONGRESSIONAL FINDINGS

Pub. L. 106-534, Sec. 2, Nov. 22, 2000, 114 Stat. 2555, provided

that: ''Congress makes the following findings:

''(1) Older Americans are among the most rapidly growing

segments of our society.

''(2) Our Nation's elderly are too frequently the victims of

violent crime, property crime, and consumer and telemarketing

fraud.

''(3) The elderly are often targeted and retargeted in a range

of fraudulent schemes.

''(4) The TRIAD program, originally sponsored by the National

Sheriffs' Association, International Association of Chiefs of

Police, and the American Association of Retired Persons unites

sheriffs, police chiefs, senior volunteers, elder care providers,

families, and seniors to reduce the criminal victimization of the

elderly.

''(5) Congress should continue to support TRIAD and similar

community partnerships that improve the safety and quality of

life for millions of senior citizens.

''(6) There are few other community-based efforts that forge

partnerships to coordinate criminal justice and social service

resources to improve the safety and security of the elderly.

''(7) According to the National Consumers League, telemarketing

fraud costs consumers nearly $40,000,000,000 each year.

''(8) Senior citizens are often the target of telemarketing

fraud.

''(9) Fraudulent telemarketers compile the names of consumers

who are potentially vulnerable to telemarketing fraud into the

so-called 'mooch lists'.

''(10) It is estimated that 56 percent of the names on such

'mooch lists' are individuals age 50 or older.

''(11) The Federal Bureau of Investigation and the Federal

Trade Commission have provided resources to assist private-sector

organizations to operate outreach programs to warn senior

citizens whose names appear on confiscated 'mooch lists'.

''(12) The Administration on Aging was formed, in part, to

provide senior citizens with the resources, information, and

assistance their special circumstances require.

''(13) The Administration on Aging has a system in place to

inform senior citizens of the dangers of telemarketing fraud.

''(14) Senior citizens need to be warned of the dangers of

telemarketing fraud before they become victims of such fraud.''

SENIOR FRAUD PREVENTION PROGRAM

Pub. L. 106-534, Sec. 3, Nov. 22, 2000, 114 Stat. 2556, provided

that:

''(a) Authorization of Appropriations. - There is authorized to

be appropriated to the Attorney General $1,000,000 for each of the

fiscal years 2001 through 2005 for programs for the National

Association of TRIAD.

''(b) Comptroller General. - The Comptroller General of the

United States shall submit to Congress a report on the

effectiveness of the TRIAD program 180 days prior to the expiration

of the authorization under this Act (see Short Title of 2000

Amendment note above), including an analysis of TRIAD programs and

activities; identification of impediments to the establishment of

TRIADs across the Nation; and recommendations to improve the

effectiveness of the TRIAD program.''

DISSEMINATION OF INFORMATION

Pub. L. 106-534, Sec. 4, Nov. 22, 2000, 114 Stat. 2556, provided

that:

''(a) In General. - The Secretary of Health and Human Services,

acting through the Assistant Secretary of Health and Human Services

for Aging, shall provide to the Attorney General of each State and

publicly disseminate in each State, including dissemination to area

agencies on aging, information designed to educate senior citizens

and raise awareness about the dangers of fraud, including

telemarketing and sweepstakes fraud.

''(b) Information. - In carrying out subsection (a), the

Secretary shall -

''(1) inform senior citizens of the prevalence of telemarketing

and sweepstakes fraud targeted against them;

''(2) inform senior citizens how telemarketing and sweepstakes

fraud work;

''(3) inform senior citizens how to identify telemarketing and

sweepstakes fraud;

''(4) inform senior citizens how to protect themselves against

telemarketing and sweepstakes fraud, including an explanation of

the dangers of providing bank account, credit card, or other

financial or personal information over the telephone to

unsolicited callers;

''(5) inform senior citizens how to report suspected attempts

at or acts of fraud;

''(6) inform senior citizens of their consumer protection

rights under Federal law; and

''(7) provide such other information as the Secretary considers

necessary to protect senior citizens against fraudulent

telemarketing and sweepstakes promotions.

''(c) Means of Dissemination. - The Secretary shall determine the

means to disseminate information under this section. In making

such determination, the Secretary shall consider -

''(1) public service announcements;

''(2) a printed manual or pamphlet;

''(3) an Internet website;

''(4) direct mailings; and

''(5) telephone outreach to individuals whose names appear on

so-called 'mooch lists' confiscated from fraudulent marketers.

''(d) Priority. - In disseminating information under this

section, the Secretary shall give priority to areas with high

incidents of fraud against senior citizens.''

-CITE-

15 USC Sec. 6102 01/06/03

-EXPCITE-

TITLE 15 - COMMERCE AND TRADE

CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND ABUSE PREVENTION

-HEAD-

Sec. 6102. Telemarketing rules

-STATUTE-

(a) In general

(1) The Commission shall prescribe rules prohibiting deceptive

telemarketing acts or practices and other abusive telemarketing

acts or practices.

(2) The Commission shall include in such rules respecting

deceptive telemarketing acts or practices a definition of deceptive

telemarketing acts or practices which shall include fraudulent

charitable solicitations, and which may include acts or practices

of entities or individuals that assist or facilitate deceptive

telemarketing, including credit card laundering.

(3) The Commission shall include in such rules respecting other

abusive telemarketing acts or practices -

(A) a requirement that telemarketers may not undertake a

pattern of unsolicited telephone calls which the reasonable

consumer would consider coercive or abusive of such consumer's

right to privacy,

(B) restrictions on the hours of the day and night when

unsolicited telephone calls can be made to consumers,

(C) a requirement that any person engaged in telemarketing for

the sale of goods or services shall promptly and clearly disclose

to the person receiving the call that the purpose of the call is

to sell goods or services and make such other disclosures as the

Commission deems appropriate, including the nature and price of

the goods and services; (FOOTNOTE 1) and

(FOOTNOTE 1) So in original. The semicolon probably should be a

comma.

(D) a requirement that any person engaged in telemarketing for

the solicitation of charitable contributions, donations, or gifts

of money or any other thing of value, shall promptly and clearly

disclose to the person receiving the call that the purpose of the

call is to solicit charitable contributions, donations, or gifts,

and make such other disclosures as the Commission considers

appropriate, including the name and mailing address of the

charitable organization on behalf of which the solicitation is

made.

In prescribing the rules described in this paragraph, the

Commission shall also consider recordkeeping requirements.

(b) Rulemaking

The Commission shall prescribe the rules under subsection (a) of

this section within 365 days after August 16, 1994. Such rules

shall be prescribed in accordance with section 553 of title 5.

(c) Enforcement

Any violation of any rule prescribed under subsection (a) of this

section shall be treated as a violation of a rule under section 57a

of this title regarding unfair or deceptive acts or practices.

(d) Securities and Exchange Commission rules

(1) Promulgation

(A) In general

Except as provided in subparagraph (B), not later than 6

months after the effective date of rules promulgated by the

Federal Trade Commission under subsection (a) of this section,

the Securities and Exchange Commission shall promulgate, or

require any national securities exchange or registered

securities association to promulgate, rules substantially

similar to such rules to prohibit deceptive and other abusive

telemarketing acts or practices by persons described in

paragraph (2).

(B) Exception

The Securities and Exchange Commission is not required to

promulgate a rule under subparagraph (A) if it determines that

-

(i) Federal securities laws or rules adopted by the

Securities and Exchange Commission thereunder provide

protection from deceptive and other abusive telemarketing by

persons described in paragraph (2) substantially similar to

that provided by rules promulgated by the Federal Trade

Commission under subsection (a) of this section; or

(ii) such a rule promulgated by the Securities and Exchange

Commission is not necessary or appropriate in the public

interest, or for the protection of investors, or would be

inconsistent with the maintenance of fair and orderly

markets.

If the Securities and Exchange Commission determines that an

exception described in clause (i) or (ii) applies, the

Securities and Exchange Commission shall publish in the Federal

Register its determination with the reasons for it.

(2) Application

(A) In general

The rules promulgated by the Securities and Exchange

Commission under paragraph (1)(A) shall apply to a broker,

dealer, transfer agent, municipal securities dealer, municipal

securities broker, government securities broker, government

securities dealer, investment adviser or investment company, or

any individual associated with a broker, dealer, transfer

agent, municipal securities dealer, municipal securities

broker, government securities broker, government securities

dealer, investment adviser or investment company. The rules

promulgated by the Federal Trade Commission under subsection

(a) of this section shall not apply to persons described in the

preceding sentence.

(B) Definitions

For purposes of subparagraph (A) -

(i) the terms ''broker'', ''dealer'', ''transfer agent'',

''municipal securities dealer'', ''municipal securities

broker'', ''government securities broker'', and ''government

securities dealer'' have the meanings given such terms by

paragraphs (4), (5), (25), (30), (31), (43), and (44) of

section 78c(a) of this title;

(ii) the term ''investment adviser'' has the meaning given

such term by section 80b-2(a)(11) of this title; and

(iii) the term ''investment company'' has the meaning given

such term by section 80a-3(a) of this title.

(e) Commodity Futures Trading Commission rules

(1) Application

The rules promulgated by the Federal Trade Commission under

subsection (a) of this section shall not apply to persons

described in section 9b(1) of title 7.

(2) Omitted

-SOURCE-

(Pub. L. 103-297, Sec. 3, Aug. 16, 1994, 108 Stat. 1545; Pub. L.

107-56, title X, Sec. 1011(b)(1), (2), Oct. 26, 2001, 115 Stat.

396.)

-COD-

CODIFICATION

Section is comprised of section 3 of Pub. L. 103-297. Subsec.

(e)(2) of section 3 of Pub. L. 103-297 enacted section 9b of Title

7, Agriculture.

-MISC3-

AMENDMENTS

2001 - Subsec. (a)(2). Pub. L. 107-56, Sec. 1011(b)(1), inserted

''which shall include fraudulent charitable solicitations, and''

before ''which may include''.

Subsec. (a)(3)(D). Pub. L. 107-56, Sec. 1011(b)(2), added subpar.

(D).

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 6103, 6104, 6105, 6107,

6108 of this title; title 7 section 9b.

-CITE-

15 USC Sec. 6103 01/06/03

-EXPCITE-

TITLE 15 - COMMERCE AND TRADE

CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND ABUSE PREVENTION

-HEAD-

Sec. 6103. Actions by States

-STATUTE-

(a) In general

Whenever an attorney general of any State has reason to believe

that the interests of the residents of that State have been or are

being threatened or adversely affected because any person has

engaged or is engaging in a pattern or practice of telemarketing

which violates any rule of the Commission under section 6102 of

this title, the State, as parens patriae, may bring a civil action

on behalf of its residents in an appropriate district court of the

United States to enjoin such telemarketing, to enforce compliance

with such rule of the Commission, to obtain damages, restitution,

or other compensation on behalf of residents of such State, or to

obtain such further and other relief as the court may deem

appropriate.

(b) Notice

The State shall serve prior written notice of any civil action

under subsection (a) or (f)(2) of this section upon the Commission

and provide the Commission with a copy of its complaint, except

that if it is not feasible for the State to provide such prior

notice, the State shall serve such notice immediately upon

instituting such action. Upon receiving a notice respecting a

civil action, the Commission shall have the right (1) to intervene

in such action, (2) upon so intervening, to be heard on all matters

arising therein, and (3) to file petitions for appeal.

(c) Construction

For purposes of bringing any civil action under subsection (a) of

this section, nothing in this chapter shall prevent an attorney

general from exercising the powers conferred on the attorney

general by the laws of such State to conduct investigations or to

administer oaths or affirmations or to compel the attendance of

witnesses or the production of documentary and other evidence.

(d) Actions by Commission

Whenever a civil action has been instituted by or on behalf of

the Commission for violation of any rule prescribed under section

6102 of this title, no State may, during the pendency of such

action instituted by or on behalf of the Commission, institute a

civil action under subsection (a) or (f)(2) of this section against

any defendant named in the complaint in such action for violation

of any rule as alleged in such complaint.

(e) Venue; service of process

Any civil action brought under subsection (a) of this section in

a district court of the United States may be brought in the

district in which the defendant is found, is an inhabitant, or

transacts business or wherever venue is proper under section 1391

of title 28. Process in such an action may be served in any

district in which the defendant is an inhabitant or in which the

defendant may be found.

(f) Actions by other State officials

(1) Nothing contained in this section shall prohibit an

authorized State official from proceeding in State court on the

basis of an alleged violation of any civil or criminal statute of

such State.

(2) In addition to actions brought by an attorney general of a

State under subsection (a) of this section, such an action may be

brought by officers of such State who are authorized by the State

to bring actions in such State on behalf of its residents.

-SOURCE-

(Pub. L. 103-297, Sec. 4, Aug. 16, 1994, 108 Stat. 1548.)

-REFTEXT-

REFERENCES IN TEXT

This chapter, referred to in subsec. (c), was in the original

''this Act'', meaning Pub. L. 103-297, Aug. 16, 1994, 108 Stat.

1545, which is classified generally to this chapter. For complete

classification of this Act to the Code, see Short Title note set

out under section 6101 of this title and Tables.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6105 of this title.

-CITE-

15 USC Sec. 6104 01/06/03

-EXPCITE-

TITLE 15 - COMMERCE AND TRADE

CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND ABUSE PREVENTION

-HEAD-

Sec. 6104. Actions by private persons

-STATUTE-

(a) In general

Any person adversely affected by any pattern or practice of

telemarketing which violates any rule of the Commission under

section 6102 of this title, or an authorized person acting on such

person's behalf, may, within 3 years after discovery of the

violation, bring a civil action in an appropriate district court of

the United States against a person who has engaged or is engaging

in such pattern or practice of telemarketing if the amount in

controversy exceeds the sum or value of $50,000 in actual damages

for each person adversely affected by such telemarketing. Such an

action may be brought to enjoin such telemarketing, to enforce

compliance with any rule of the Commission under section 6102 of

this title, to obtain damages, or to obtain such further and other

relief as the court may deem appropriate.

(b) Notice

The plaintiff shall serve prior written notice of the action upon

the Commission and provide the Commission with a copy of its

complaint, except in any case where such prior notice is not

feasible, in which case the person shall serve such notice

immediately upon instituting such action. The Commission shall

have the right (A) to intervene in the action, (B) upon so

intervening, to be heard on all matters arising therein, and (C) to

file petitions for appeal.

(c) Action by Commission

Whenever a civil action has been instituted by or on behalf of

the Commission for violation of any rule prescribed under section

6102 of this title, no person may, during the pendency of such

action instituted by or on behalf of the Commission, institute a

civil action against any defendant named in the complaint in such

action for violation of any rule as alleged in such complaint.

(d) Cost and fees

The court, in issuing any final order in any action brought under

subsection (a) of this section, may award costs of suit and

reasonable fees for attorneys and expert witnesses to the

prevailing party.

(e) Construction

Nothing in this section shall restrict any right which any person

may have under any statute or common law.

(f) Venue; service of process

Any civil action brought under subsection (a) of this section in

a district court of the United States may be brought in the

district in which the defendant is found, is an inhabitant, or

transacts business or wherever venue is proper under section 1391

of title 28. Process in such an action may be served in any

district in which the defendant is an inhabitant or in which the

defendant may be found.

-SOURCE-

(Pub. L. 103-297, Sec. 5, Aug. 16, 1994, 108 Stat. 1549.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6105 of this title.

-CITE-

15 USC Sec. 6105 01/06/03

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TITLE 15 - COMMERCE AND TRADE

CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND ABUSE PREVENTION

-HEAD-

Sec. 6105. Administration and applicability of chapter

-STATUTE-

(a) In general

Except as otherwise provided in sections 6102(d), 6102(e), 6103,

and 6104 of this title, this chapter shall be enforced by the

Commission under the Federal Trade Commission Act (15 U.S.C. 41 et

seq.). Consequently, no activity which is outside the jurisdiction

of that Act shall be affected by this chapter.

(b) Actions by Commission

The Commission shall prevent any person from violating a rule of

the Commission under section 6102 of this title in the same manner,

by the same means, and with the same jurisdiction, powers, and

duties as though all applicable terms and provisions of the Federal

Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into

and made a part of this chapter. Any person who violates such rule

shall be subject to the penalties and entitled to the privileges

and immunities provided in the Federal Trade Commission Act in the

same manner, by the same means, and with the same jurisdiction,

power, and duties as though all applicable terms and provisions of

the Federal Trade Commission Act were incorporated into and made a

part of this chapter.

(c) Effect on other laws

Nothing contained in this chapter shall be construed to limit the

authority of the Commission under any other provision of law.

-SOURCE-

(Pub. L. 103-297, Sec. 6, Aug. 16, 1994, 108 Stat. 1549.)

-REFTEXT-

REFERENCES IN TEXT

The Federal Trade Commission Act, referred to in subsecs. (a) and

(b), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, as amended,

which is classified generally to subchapter I (Sec. 41 et seq.) of

chapter 2 of this title. For complete classification of this Act

to the Code, see section 58 of this title and Tables.

-CITE-

15 USC Sec. 6106 01/06/03

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TITLE 15 - COMMERCE AND TRADE

CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND ABUSE PREVENTION

-HEAD-

Sec. 6106. Definitions

-STATUTE-

For purposes of this chapter:

(1) The term ''attorney general'' means the chief legal officer

of a State.

(2) The term ''Commission'' means the Federal Trade Commission.

(3) The term ''State'' means any State of the United States,

the District of Columbia, Puerto Rico, the Northern Mariana

Islands, and any territory or possession of the United States.

(4) The term ''telemarketing'' means a plan, program, or

campaign which is conducted to induce purchases of goods or

services, or a charitable contribution, donation, or gift of

money or any other thing of value, by use of one or more

telephones and which involves more than one interstate telephone

call. The term does not include the solicitation of sales

through the mailing of a catalog which -

(A) contains a written description, or illustration of the

goods or services offered for sale,

(B) includes the business address of the seller,

(C) includes multiple pages of written material or

illustrations, and

(D) has been issued not less frequently than once a year,

where the person making the solicitation does not solicit

customers by telephone but only receives calls initiated by

customers in response to the catalog and during those calls takes

orders only without further solicitation.

-SOURCE-

(Pub. L. 103-297, Sec. 7, Aug. 16, 1994, 108 Stat. 1550; Pub. L.

107-56, title X, Sec. 1011(b)(3), Oct. 26, 2001, 115 Stat. 396.)

-MISC1-

AMENDMENTS

2001 - Par. (4). Pub. L. 107-56 inserted '', or a charitable

contribution, donation, or gift of money or any other thing of

value,'' after ''services'' in introductory provisions.

-CITE-

15 USC Sec. 6107 01/06/03

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TITLE 15 - COMMERCE AND TRADE

CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND ABUSE PREVENTION

-HEAD-

Sec. 6107. Enforcement of orders

-STATUTE-

(a) General authority

Subject to subsections (b) and (c) of this section, the Federal

Trade Commission may bring a criminal contempt action for

violations of orders of the Commission obtained in cases brought

under section 53(b) of this title.

(b) Appointment

An action authorized by subsection (a) of this section may be

brought by the Federal Trade Commission only after, and pursuant

to, the appointment by the Attorney General of an attorney employed

by the Commission, as a special assistant United States Attorney.

(c) Request for appointment

(1) Appointment upon request or motion

A special assistant United States Attorney may be appointed

under subsection (b) of this section upon the request of the

Federal Trade Commission or the court which has entered the order

for which contempt is sought or upon the Attorney General's own

motion.

(2) Timing

The Attorney General shall act upon any request made under

paragraph (1) within 45 days of the receipt of the request.

(d) Termination of authority

The authority of the Federal Trade Commission to bring a criminal

contempt action under subsection (a) of this section expires 2

years after the date of the first promulgation of rules under

section 6102 of this title. The expiration of such authority shall

have no effect on an action brought before the expiration date.

-SOURCE-

(Pub. L. 103-297, Sec. 9, Aug. 16, 1994, 108 Stat. 1550.)

-CITE-

15 USC Sec. 6108 01/06/03

-EXPCITE-

TITLE 15 - COMMERCE AND TRADE

CHAPTER 87 - TELEMARKETING AND CONSUMER FRAUD AND ABUSE PREVENTION

-HEAD-

Sec. 6108. Review

-STATUTE-

Upon the expiration of 5 years following the date of the first

promulgation of rules under section 6102 of this title, the

Commission shall review the implementation of this chapter and its

effect on deceptive telemarketing acts or practices and report the

results of the review to the Congress.

-SOURCE-

(Pub. L. 103-297, Sec. 10, Aug. 16, 1994, 108 Stat. 1551.)

-CITE-