The office of Curtis T. Hill, Attorney General for the state of Indiana, has issued an opinion that clarifies certain aspects of new telemarketing regulations passed by the state legislature. Most notably, the AG sets forth some exemptions to the telemarketing registration requirements run that legislation.
These registration requirements were a part of amendments to the Telephone Solicitor Act (TSA) passed by the Indiana state legislature on July 1, 2019. The amendments require any “seller” making a “solicitation” in Indiana to register with the Office of the Attorney General (OAG) and pay a registration fee. State law defines a “seller” as “a person who, personally, through salespersons, or through the use of an automated dialing and answering device, makes a solicitation,” and defines a “solicitation” as “a telephone conversation or attempted telephone conversation in which the seller offers, or attempts to offer, an item to another person in exchange for money or other consideration.”
The OAG issued the clarifying order—technically a Memorandum of Legal Guidance (MLG)—on September 24, 2019 in the form of a letter to State Representative Matt Lehman. The OAG explains in the MLG that certain aspects of the TSA amendments conflict with statutory exemptions to a different law—the Telephone Solicitation of Consumers (TSC) law—that governs the state’s Do Not Call law.
While the MLG calls for further legislative action to settle the inconsistencies between these two laws, it does set forth some exemptions to the registration requirements that should take effect in the meantime. Those exceptions, as defined by the TSC, include:
(1) A telephone call made in response to an express request of the person called.
(2) A telephone call made primarily in connection with an existing debt or contract for which payment or performance has not been completed at the time of the call.
(3) A telephone call made on behalf of a charitable organization that is exempt from federal income taxation under Section 501 of the Internal Revenue Code, but only if all of the following apply:
(A) The telephone call is made by a volunteer or an employee of the charitable organization.
(B) The telephone solicitor who makes the telephone call immediately discloses all of the following information upon making contact with the consumer:
(i) The solicitor’s true first and last name.
(ii) The name, address, and telephone number of the charitable organization.
(4) A telephone call made by an individual licensed under IC 25-34.1 if:
(A) the sale of goods or services is not completed; and
(B) the payment or authorization of payment is not required;
until after a face to face sales presentation by the seller.
(5) A telephone call made by an individual licensed under IC 27-1-15.6 or IC 27-1-15.8 when the individual is soliciting an application for insurance or negotiating a policy of insurance on behalf of an insurer (as defined in IC 27-1-2-3).
(6) A telephone call soliciting the sale of a newspaper of general circulation, but only if the telephone call is made by a volunteer or an employee of the newspaper.
Even with these exceptions, the new registration requirements still apply to many types of telemarketing activities. And the conflict between the TSA and TSC as identified by the MLG could eventually lead to further legislative action.