February 1, 2007, Introduced by Reps. Vagnozzi, Constan, Alma Smith, Meadows, Miller and Hood and referred to the Committee on Commerce.
A bill to regulate certain mailed commercial solicitations; to
provide for the powers and duties of certain state officers and
entities; and to prescribe penalties and remedies.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the "do-
not-mail list act".
Sec. 3. As used in this act:
(a) "Commission" means the public service commission.
(b) "Consumer" means an individual who resides in this state.
(c) "Do-not-mail list" means a do-not-mail list of consumers
and their residential addresses maintained under section 5 by the
commission, by a vendor designated by the commission, or by an
agency of the federal government.
(d) "Existing customer" means an individual who has purchased
goods or services from a person, who is the recipient of a mail
solicitation from that person, and who either paid for the goods or
services within the 12 months preceding the mail solicitation or
has not paid for the goods and services at the time of the mail
solicitation because of a prior agreement between the person and
the individual.
(e) "Person" means an individual, partnership, corporation,
limited liability company, association, governmental entity, or
other legal entity.
(f) "Mail solicitation" means any communication sent through
the United States postal service or other mail carrier to a
consumer's residential address for the purpose of
encouraging the recipient of the communication to purchase, rent,
or invest in goods or services. Mail solicitation does not include
any of the following:
(i) A mailed communication sent with a consumer's prior express
invitation or permission.
(ii) A mailed communication to an existing customer of the
person who mailed the communication or on whose behalf the
communication was mailed, unless the existing customer is a
consumer who has requested that he or she not receive mailed
communications from or on behalf of that person under section
9(1)(g).
(g) "Mail solicitor" means any person doing business in this
state who makes or causes to be made a mail solicitation from
inside or outside of this state.
(h) "Vendor" means a person designated by the commission to
maintain a do-not-mail list under section 5. The term may include a
governmental entity.
Sec. 5. (1) Within 120 days after the effective date of this
act, the commission shall do 1 of the following:
(a) Establish a state do-not-mail list. All of the following
apply if the commission establishes a do-not-mail list under this
subdivision:
(i) The commission shall publish the do-not-mail list quarterly
for use by mail solicitors.
(ii) The do-not-mail list fund is created in the state
treasury. Money received from fees under subparagraph (iii) shall be
credited to the fund. The state treasurer shall direct the
investment of the fund. The state treasurer shall credit to the
fund interest and earnings from fund investments. Money remaining
in the fund at the end of a fiscal year shall be carried over in
the fund to the next and succeeding fiscal years. Money in the fund
may be appropriated to the commission to cover the costs of
administering the do-not-mail list, but may not be appropriated to
compensate or reimburse a vendor designated under subdivision (b)
to maintain a do-not-mail list under that subdivision.
(iii) The commission shall establish and collect 1 or both of
the following fees to cover the costs to the commission for
administering the do-not-mail list:
(A) Fees charged to mail solicitors for access to the do-not-
mail list.
(B) Fees charged to consumers for inclusion on the do-not-mail
list. The commission shall not charge a consumer a fee of more than
$5.00 for a 5-year period.
(iv) The commission shall maintain the do-not-mail list for at
least 1 year. After 1 year, the commission may at any time elect to
designate a vendor to maintain a do-not-mail list under subdivision
(b), in which case subdivision (b) shall apply.
(b) Designate a vendor to maintain a do-not-mail list. All of
the following apply to a vendor designated to maintain a do-not-
mail list under this subdivision:
(i) The commission shall establish a procedure or follow
existing procedure for the submission of bids by vendors to
maintain a do-not-mail list under this subdivision.
(ii) The commission shall establish a procedure or follow
existing procedure for the selection of the vendor to maintain the
do-not-mail list. In selecting the vendor, the commission shall
consider at least all of the following factors:
(A) The cost of obtaining and the accessibility and frequency
of publication of the do-not-mail list to mail solicitors.
(B) The cost and ease of registration on the do-not-mail list
to consumers who are seeking inclusion on the do-not-mail list.
(iii) The commission may review its designation and make a
different designation under this subdivision if the commission
determines that another person would be better than the designated
vendor in meeting the selection factors established under
subparagraph (ii) or if the designated vendor engages in activities
the commission considers contrary to the public interest.
(iv) If the commission does not establish a state do-not-mail
list under subdivision (a), the commission shall comply with the
designation requirements of this subdivision for at least 1 year.
After 1 year, the commission may at any time elect to establish and
maintain a do-not-mail list under subdivision (a), in which case
subdivision (a) shall apply.
(v) Unless the vendor is a governmental entity, a vendor
designated by the commission under this subdivision is not a
governmental agency and is not an agent of the commission in
maintaining a do-not-mail list.
(vi) The commission and a vendor designated under this
subdivision shall execute a written contract. The contract shall
include the vendor's agreement to the requirements of this section
and any additional requirements established by the commission.
(vii) The commission shall not use state funds to compensate or
reimburse a vendor designated under this subdivision. The vendor
may receive compensation or reimbursement for maintaining a
designated do-not-mail list under this subdivision only from 1 or
both of the following:
(A) Fees charged by the vendor to mail solicitors for access
to the do-not-mail list.
(B) Fees charged by the vendor to consumers for inclusion on
the do-not-mail list. A designated vendor shall not charge a
consumer a fee of more than $5.00 for a 5-year period.
(viii) The designee do-not-mail list fund is created in the
state treasury. If the vendor is a department or agency of this
state, money received from fees under subparagraph (vii) by that
vendor shall be credited to the fund. The state treasurer shall
direct the investment of the fund. The state treasurer shall credit
to the fund interest and earnings from fund investments. Money
remaining in the fund at the end of a fiscal year shall be carried
over in the fund to the next and succeeding fiscal years. Money in
the fund may be appropriated to that vendor to cover the costs of
administering the do-not-mail list.
(2) In determining whether to either establish a state do-not-
mail list under subsection (1)(a) or designate a vendor under
subsection (1)(b), and in designating a vendor under subsection
(1)(b), the commission shall consider comments submitted to the
commission from consumers, mail solicitors, or any other person.
(3) Beginning 90 days after the commission establishes a do-
not-mail list under subsection (1)(a) or designates a vendor to
maintain a do-not-mail list under subsection (1)(b), a mail
solicitor shall not make a mail solicitation to a consumer whose
name and residential address are on the then-current version of
that do-not-mail list.
(4) Notwithstanding any other provision of this section, if an
agency of the federal government establishes a federal do-not-mail
list, within 120 days after the establishment of the federal do-
not-mail list, the commission shall designate the federal list as
the state do-not-mail list. The federal list shall remain the state
do-not-mail list as long as the federal list is maintained. A mail
solicitor shall not make a mail solicitation to a consumer whose
name and residential address are on the then-current version of the
federal list.
(5) A mail solicitor shall not use a do-not-mail list for any
purpose other than meeting the requirements of subsection (3) or
(4).
(6) The commission or a vendor shall not sell or transfer the
do-not-mail list to any person for any purpose unrelated to this
section.
Sec. 7. (1) A person making a mail solicitation to a consumer
shall state the full name of the organization or other person on
whose behalf the communication was mailed and provide a telephone
number of the organization or other person.
(2) An individual answering the telephone number required
under subsection (1) shall provide a consumer calling the telephone
number with information describing the organization or other person
on whose behalf the mail solicitation was made to the consumer and
describing the mail solicitation.
Sec. 9. (1) It is an unfair or deceptive act or practice and a
violation of this act for a mail solicitor to do any of the
following in a mail solicitation:
(a) Misrepresent or fail to disclose, in a clear, conspicuous,
and intelligible manner and before payment is received from the
consumer, all of the following information:
(i) Total purchase price to the consumer of the goods or
services to be received.
(ii) Any restrictions, limitations, or conditions to purchase
or to use the goods or services that are the subject of an offer to
sell goods or services.
(iii) Any material term or condition of the seller's refund,
cancellation, or exchange policy, including a consumer's right to
cancel a home solicitation sale under 1971 PA 227, MCL 445.111 to
445.117, and if applicable, that the seller does not
have a refund, cancellation, or exchange policy.
(iv) Any material costs or conditions related to receiving a
prize, including the odds of winning the prize, and if the odds are
not calculable in advance, the factors used in calculating the
odds, the nature and value of a prize, that no purchase is
necessary to win the prize, and the "no purchase required" method
of entering the contest.
(v) Any material aspect of an investment opportunity the
seller is offering, including, but not limited to, risk, liquidity,
earnings potential, market value, and profitability.
(vi) The quantity and any material aspect of the quality or
basic characteristics of any goods or services offered.
(b) Misrepresent any material aspect of the quality or basic
characteristics of any goods or services offered.
(c) Make a false or misleading statement with the purpose of
inducing a consumer to pay for goods or services.
(d) If the mail solicitation includes a telephone number that
a consumer may call to order and pay for goods or services, accept
payment from a consumer or make or submit any charge to the
consumer's credit or bank account by telephone before the mail
solicitor or seller receives from the consumer an express
verifiable authorization. As used in this subdivision, "verifiable
authorization" means a written authorization or confirmation, an
oral authorization recorded by the person receiving the telephone
call from the consumer, or confirmation through an independent
third party.
(e) Offer to a consumer in this state a prize promotion in
which a purchase or payment is necessary to obtain the prize.
(f) Fail to comply with any other requirements of this act.
(g) Make a mail solicitation to a consumer in this state who
has requested that he or she not receive mail communications or
solicitations from the organization or other person on whose behalf
the mail solicitation is made.
(2) Except as provided in this subsection, beginning 210 days
after the effective date of this act, a person who knowingly or
intentionally violates this section is guilty of a misdemeanor
punishable by imprisonment for not more than 6 months or a fine of
not more than $500.00, or both. This subsection does not prohibit a
person from being charged with, convicted of, or punished for any
other crime including any other violation of law arising out of the
same transaction as the violation of this section. This subsection
does not apply if the violation of this section is a failure to
comply with the requirements of section 5(3) or (4) or section 7.
(3) A person who suffers loss as a result of violation of this
section may bring an action to recover actual damages or $250.00,
whichever is greater, together with reasonable attorney fees. This
subsection does not prevent a consumer from asserting his or her
rights under this act if the mail solicitation results in a home
solicitation sale under 1971 PA 227, MCL 445.111 to 445.117, or
asserting any other rights or claims the consumer may have under
applicable state or federal law.
Sec. 11. This act does not apply to a person subject to any of
the following:
(a) The charitable organizations and solicitations act, 1975
PA 169, MCL 400.271 to 400.294.
(b) The public safety solicitation act, 1992 PA 298, MCL
14.301 to 14.327.
(c) Section 527 of the internal revenue code of 1986, 26 USC
527.