CALIFORNIA CODES
BUSINESS AND PROFESSIONS CODE
SECTION 17538-17539.6
17538. (a) It is unlawful in the sale or lease or offering for sale
or lease of goods or services, for any person conducting sales or
leases by telephone, the Internet or other electronic means of
communication, mail order, or catalog in this state, including, but
not limited to, the offering for sale or lease on television, radio,
or the Internet, or by any other electronic means of communication or
telecommunications device, of goods or services that may be ordered
by mail, telephone, the Internet, or other electronic means of
communication or telecommunications device, or for any person
advertising in connection with those sales, leases, or advertisements
a mailing address, telephone number, or Internet or other electronic
address, to accept payment from or for a buyer, for the purchase or
lease of goods or services ordered by mail, telephone, the Internet,
or other electronic means of communication or telecommunications
device, whether payment to the vendor is made directly, through the
mail, by means of a transfer of funds from an account of the buyer or
any other person, or by any other means, and then permit 30 days,
unless otherwise conspicuously stated in the offering or
advertisement, or unless a shorter time is clearly communicated by
the person conducting the sale or lease, to elapse without doing any
one of the following things:
(1) Shipping, mailing, or providing the goods or services ordered.
(2) Mailing a full refund or, if payment was made by means of a
transfer from an account, (A) crediting the account in the full
amount of the debit, or (B) if a third party is the creditor, issuing
a credit memorandum to the third party, who shall promptly credit
the account in the full amount of the debit.
(3) Sending the buyer a letter or other written notice (A)
advising the buyer of the duration of an expected delay expressed as
a specific number of days or weeks, or proposing the substitution of
goods or services of equivalent or superior quality, and (B) offering
to make a full refund, in accordance with paragraph (2), within one
week if the buyer so requests. The vendor shall provide to the buyer
in that letter or written notice a toll-free telephone number or
other cost-free method to communicate the buyer's request for a full
refund. If the vendor proposes to substitute goods or services, the
vendor shall describe the substitute goods or services in detail,
indicating fully how the substitute differs from the goods or
services ordered.
(4) (A) Shipping, mailing, or providing substitute goods or
services of equivalent or superior quality, if the buyer is extended
the opportunity to return the substitute goods or services and the
vendor promises to refund to the buyer (i) the cost of returning the
substitute goods or services and (ii) any portion of the purchase
price previously paid by the buyer.
(B) Except as provided in subparagraph (C), a notice to the buyer
shall accompany the mailing, shipping, or providing of the substitute
goods or services that informs the buyer of the substitution;
describes fully how the substitute differs from the goods or services
ordered, except that obvious nontechnical differences, such as
color, need not be described; and discloses the buyer's right to
reject the substitute goods or services and obtain a full refund of
the amount paid, plus the cost of returning the substitute goods or
services.
(C) The vendor may omit from the notice required by subparagraph
(B) a description of how the substitute goods or services differ from
the ordered goods or services if the notice otherwise complies with
subparagraph (B), and if all the following requirements are complied
with:
(i) The vendor maintains at least 100 retail outlets located in at
least 20 counties in this state that are open to the public
regularly during normal business hours where buyers can order catalog
goods, pick them up, and return them for refunds.
(ii) The vendor maintains a toll-free telephone number and
provides to each buyer, at the time of the buyer's call, a full
description of how substitute goods or services differ from ordered
goods or services. The toll-free telephone number shall operate and
be staffed at all times during which goods or services normally are
available for pick up from the vendor's retail outlets.
(iii) If the buyer picks up substitute goods or services from the
vendor's retail outlet, the notice required by subparagraph (B) as
modified by this subparagraph is placed on, or attached to, the
exterior of the package or wrapping containing the substitute, or is
handed to the buyer at the time the buyer picks up the substitute.
(iv) The notice contains a reference number or some other means of
identifying the ordered goods or services and the substitute goods
or services.
(v) The notice contains the vendor's toll-free telephone number
and instructions to the buyer that the buyer may call that number to
obtain a full description of how the substitute differs from the
ordered goods.
(b) For purposes of paragraphs (3) and (4) of subdivision (a),
goods or services shall be considered of "equivalent or superior
quality" only if they are (1) substantially similar to the goods or
services ordered, (2) fit for the usual purposes for which the goods
or services ordered are used, and (3) normally offered by the vendor
at a price equal to or greater than the price of the goods or
services ordered.
(c) When a buyer makes an initial application for an open-end
credit plan, as defined in the Federal Consumer Credit Protection Act
(15 U.S.C. Sec. 1602), at the same time the goods or services are
ordered, and the goods or services are to be purchased on credit, the
person conducting the business shall have 50 days, rather than 30
days, to perform the actions specified in this section.
(d) A vendor conducting business through the Internet or any other
electronic means of communication shall do all of the following
when the transaction involves a buyer located in this state:
(1) Before accepting any payment or processing any debit or credit
charge or funds transfer, the vendor shall disclose to the buyer in
writing or by electronic means of communication, such as E-mail or an
on-screen notice, the vendor's return and refund policy, the legal
name under which the business is conducted and, except as provided in
paragraph (3), the complete street address from which the business
is actually conducted.
(2) If the disclosure of the vendor's legal name and address
information required by this subdivision is made by on-screen notice,
all of the following shall apply:
(A) The disclosure of the legal name and address information shall
appear on any of the following: (i) the first screen displayed when
the vendor's electronic site is accessed, (ii) on the screen on
which goods or services are first offered, (iii) on the screen on
which a buyer may place the order for goods or services, or (iv) on
the screen on which the buyer may enter payment information, such as
a credit card account number. The communication of that disclosure
shall not be structured to be smaller or less legible than the text
of the offer of the goods or services.
(B) The disclosure of the legal name and address information shall
be accompanied by an adjacent statement describing how the buyer may
receive the information at the buyer's E-mail address. The vendor
shall provide the disclosure information to the buyer at the buyer's
E-mail address within five days of receiving the buyer's request.
(C) Until the vendor complies with subdivision (a) in connection
with all buyers of the vendor's goods or services, the vendor shall
make available to a buyer and any person or entity who may enforce
this section pursuant to Section 17535 on-screen access to the
information required to be disclosed under this subdivision.
(3) The complete street address need not be disclosed as required
by paragraph (1) if the vendor utilizes a private mailbox receiving
service and all of the following conditions are met: (A) the vendor
satisfies the conditions described in paragraph (2) of subdivision
(b) of Section 17538.5, (B) the vendor discloses the actual street
address of the private mailbox receiving service in the manner
prescribed by this subdivision for the disclosure of the vendor's
actual street address, and (C) the vendor and the private mailbox
receiving service comply with all of the requirements of subdivisions
(c) to (f), inclusive, of Section 17538.5.
(e) As used in this section and Section 17538.3, the following
words have the following meanings:
(1) "Goods" means tangible chattels, including certificates or
coupons exchangeable for those goods, and including goods which, at
the time of the sale or subsequently, are to be so affixed to real
property as to become a part of that real property, whether or not
severable therefrom.
(2) "Person" means an individual, partnership, corporation,
association, or other group, however organized.
(3) "Buyer" means a person who seeks or acquires, by purchase or
lease, any goods or services for any purpose.
(4) "Services" means work, labor, and services, including services
furnished in connection with the sale or repair of goods.
(5) "Vendor" means a person who, as described in subdivision (a),
vends, sells, leases, supplies, or ships goods or services, who
conducts sales or leases of goods or services, or who offers goods or
services for sale or lease. "Vendor" does not include a person
responding to an electronic agent in connection with providing goods
or services to a buyer if the aggregate amount of all transactions
with the buyer does not exceed ten dollars ($10).
(6) "Internet" means the global information system that is
logically linked together by a globally unique address space based on
the Internet Protocol (IP), or its subsequent extensions, and that
is able to support communications using the Transmission Control
Protocol/Internet Protocol (TCP/IP) suite, or its subsequent
extensions, or other IP-compatible protocols, and that provides,
uses, or makes accessible, either publicly or privately, high level
services layered on the communications and related infrastructure
described in this paragraph.
(7) "Electronic agent" means a computer program designed,
selected, or programmed to initiate or respond to electronic messages
or performances without review by an individual.
(f) Any violation of the provisions of this section is a
misdemeanor punishable by imprisonment in the county jail not
exceeding six months, by a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine.
17538.3. The provisions of Section 17538 do not apply to any of the
following:
(a) To instances in which all advertising for goods or services
contains a notice as to each item or service offered, which, in the
case of printed advertising, shall be in a type size at least as
large as that indicating the price, that a delay may be expected of a
specified period. In such cases, one of the events described in
Section 17538 must occur no later than the expiration of the period
specified in the advertisement.
(b) To goods or services, such as quarterly magazines, which by
their nature are not ready for use or consumption until a future date
and for that reason cannot be stocked at the time of order.
(c) To installments other than the first of goods, such as
magazine subscriptions, ordered for serial delivery.
(d) To any telecommunications goods and services sold by a
telecommunications company, except those telecommunications goods and
services purchased for use primarily for personal, family, or
household purposes.
(e) To financial services offered in the ordinary course of
business by a supervised bank, national banking association, bank
holding company, a state or federal savings and loan association, a
state or federal credit union, or a subsidiary or affiliate thereof,
or an authorized industrial loan company, a licensed personal
property broker, a licensed consumer finance lender, a licensed
commercial finance lender, or a person licensed pursuant to Division
4 (commencing with Section 10000).
(f) To any delay in delivery of goods or services caused by the
United States Post Office, an act of God, or a labor strike by the
vendor's employees.
17538.4. (a) No person or entity conducting business in this state
shall facsimile (fax) or cause to be faxed, or electronically mail
(e-mail) or cause to be e-mailed, documents consisting of unsolicited
advertising material for the lease, sale, rental, gift offer, or
other disposition of any realty, goods, services, or extension of
credit unless:
(1) In the case of a fax, that person or entity establishes a
toll-free telephone number that a recipient of the unsolicited faxed
documents may call to notify the sender not to fax the recipient any
further unsolicited documents.
(2) In the case of e-mail, that person or entity establishes a
toll-free telephone number or valid sender operated return e-mail
address that the recipient of the unsolicited documents may call or
e-mail to notify the sender not to e-mail any further unsolicited
documents.
(b) All unsolicited faxed or e-mailed documents subject to this
section shall include a statement informing the recipient of the
toll-free telephone number that the recipient may call, or a valid
return address to which the recipient may write or e-mail, as the
case may be, notifying the sender not to fax or e-mail the recipient
any further unsolicited documents to the fax number, or numbers, or
e-mail address, or addresses, specified by the recipient.
In the case of faxed material, the statement shall be in at least
nine-point type. In the case of e-mail, the statement shall be the
first text in the body of the message and shall be of the same size
as the majority of the text of the message.
(c) Upon notification by a recipient of his or her request not to
receive any further unsolicited faxed or e-mailed documents, no
person or entity conducting business in this state shall fax or cause
to be faxed or e-mail or cause to be e-mailed any unsolicited
documents to that recipient.
(d) In the case of e-mail, this section shall apply when the
unsolicited e-mailed documents are delivered to a California resident
via an electronic mail service provider's service or equipment
located in this state. For these purposes "electronic mail service
provider" means any business or organization qualified to do business
in this state that provides individuals, corporations, or other
entities the ability to send or receive electronic mail through
equipment located in this state and that is an intermediary in
sending or receiving electronic mail.
(e) As used in this section, "unsolicited e-mailed documents"
means any e-mailed document or documents consisting of advertising
material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit
that meet both of the following requirements:
(1) The documents are addressed to a recipient with whom the
initiator does not have an existing business or personal
relationship.
(2) The documents are not sent at the request of, or with the
express consent of, the recipient.
(f) As used in this section, "fax" or "cause to be faxed" or
"e-mail" or "cause to be e-mailed" does not include or refer to the
transmission of any documents by a telecommunications utility or
Internet service provider to the extent that the telecommunications
utility or Internet service provider merely carries that transmission
over its network.
(g) In the case of e-mail that consists of unsolicited advertising
material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit,
the subject line of each and every message shall include "ADV:" as
the first four characters. If these messages contain information
that consists of unsolicited advertising material for the lease,
sale, rental, gift offer, or other disposition of any realty, goods,
services, or extension of credit, that may only be viewed, purchased,
rented, leased, or held in possession by an individual 18 years of
age and older, the subject line of each and every message shall
include "ADV:ADLT" as the first eight characters.
(h) An employer who is the registered owner of more than one
e-mail address may notify the person or entity conducting business in
this state e-mailing or causing to be e-mailed, documents consisting
of unsolicited advertising material for the lease, sale, rental,
gift offer, or other disposition of any realty, goods, services, or
extension of credit of the desire to cease e-mailing on behalf of all
of the employees who may use employer-provided and
employer-controlled e-mail addresses.
(i) This section, or any part of this section, shall become
inoperative on and after the date that federal law is enacted that
prohibits or otherwise regulates the transmission of unsolicited
advertising by electronic mail (e-mail).
17538.45. (a) For purposes of this section, the following words
have the following meanings:
(1) "Electronic mail advertisement" means any electronic mail
message, the principal purpose of which is to promote, directly or
indirectly, the sale or other distribution of goods or services to
the recipient.
(2) "Unsolicited electronic mail advertisement" means any
electronic mail advertisement that meets both of the following
requirements:
(A) It is addressed to a recipient with whom the initiator does
not have an existing business or personal relationship.
(B) It is not sent at the request of or with the express consent
of the recipient.
(3) "Electronic mail service provider" means any business or
organization qualified to do business in California that provides
registered users the ability to send or receive electronic mail
through equipment located in this state and that is an intermediary
in sending or receiving electronic mail.
(4) "Initiation" of an unsolicited electronic mail advertisement
refers to the action by the initial sender of the electronic mail
advertisement. It does not refer to the actions of any intervening
electronic mail service provider that may handle or retransmit the
electronic message.
(5) "Registered user" means any individual, corporation, or other
entity that maintains an electronic mail address with an electronic
mail service provider.
(b) No registered user of an electronic mail service provider
shall use or cause to be used that electronic mail service provider's
equipment located in this state in violation of that electronic mail
service provider's policy prohibiting or restricting the use of its
service or equipment for the initiation of unsolicited electronic
mail advertisements.
(c) No individual, corporation, or other entity shall use or cause
to be used, by initiating an unsolicited electronic mail
advertisement, an electronic mail service provider's equipment
located in this state in violation of that electronic mail service
provider's policy prohibiting or restricting the use of its equipment
to deliver unsolicited electronic mail advertisements to its
registered users.
(d) An electronic mail service provider shall not be required to
create a policy prohibiting or restricting the use of its equipment
for the initiation or delivery of unsolicited electronic mail
advertisements.
(e) Nothing in this section shall be construed to limit or
restrict the rights of an electronic mail service provider under
Section 230(c)(1) of Title 47 of the United States Code, or any
decision of an electronic mail service provider to permit or to
restrict access to or use of its system, or any exercise of its
editorial function.
(f) (1) In addition to any other action available under law, any
electronic mail service provider whose policy on unsolicited
electronic mail advertisements is violated as provided in this
section may bring a civil action to recover the actual monetary loss
suffered by that provider by reason of that violation, or liquidated
damages of fifty dollars ($50) for each electronic mail message
initiated or delivered in violation of this section, up to a maximum
of twenty-five thousand dollars ($25,000) per day, whichever amount
is greater.
(2) In any action brought pursuant to paragraph (1), the court may
award reasonable attorney's fees to a prevailing party.
(3) (A) In any action brought pursuant to paragraph (1), the
electronic mail service provider shall be required to establish as an
element of its cause of action that prior to the alleged violation,
the defendant had actual notice of both of the following:
(i) The electronic mail service provider's policy on unsolicited
electronic mail advertising.
(ii) The fact that the defendant's unsolicited electronic mail
advertisements would use or cause to be used the electronic mail
service provider's equipment located in this state.
(B) In this regard, the Legislature finds that with rapid advances
in Internet technology, and electronic mail technology in
particular, Internet service providers are already experimenting with
embedding policy statements directly into the software running on
the computers used to provide electronic mail services in a manner
that displays the policy statements every time an electronic mail
delivery is requested. While the state of the technology does not
support such a finding at present, the Legislature believes that, in
a given case at some future date, a showing that notice was supplied
via electronic means between the sending and receiving computers
could be held to constitute actual notice to the sender for purposes
of this paragraph.
(4) A violation of this section shall not be subject to Section
17534.
17538.5. (a) It is unlawful in the sale or offering for sale of
consumer goods or services for any person conducting, any business in
this state which utilizes a post office box address, a private
mailbox receiving service, or a street address representing a site
used for the receipt or delivery of mail or as a telephone answering
service, to fail to disclose the legal name under which business is
done and, except as provided in paragraph (2) of subdivision (b), the
complete street address from which business is actually conducted in
all advertising and promotional materials, including order blanks
and forms. Any violation of the provisions of this section is a
misdemeanor punishable by imprisonment in the county jail not
exceeding six months, or by a fine not exceeding two thousand five
hundred dollars ($2,500), or by both.
(b) (1) This section shall not apply to a person who sells the
preponderance of goods and services at retail from trade premises
which are open to the public regularly during normal business hours
where the post office box or telephone answering service is
supportive of and ancillary to the sales made or to any person who
provides services pursuant to a license issued pursuant to this code
or any other provision of law by a state board or agency or, except
for a person conducting a mail order or catalog business, by a city
or county or city and county in this state, which has the person's
current business street address or home address on record and which
is authorized to reveal that address to inquiring persons.
(2) If a person conducts a business described in subdivision (a)
from that person's residence, the person is not required to disclose
the residence address if both of the following conditions are
satisfied:
(A) The person's current business street address or home address
is contained in a United States Postal Service (USPS) Form 1583 that
is filed with the USPS.
(B) The person has signed an acknowledgement form substantially in
accordance with the provisions set forth in subdivision (f) which,
among other things, authorizes the commercial mail receiving agency
to act as that person's agent for service of process.
(c) A commercial mail receiving agency (CMRA) shall not provide
private mailbox receiving service to any customer until it obtains
from that customer at least two pieces of identification regarding
that customer and provides to that customer an acknowledgment, as set
forth in subdivision (f), which (1) acknowledges the obligation to
advise the CMRA of any change in address, (2) authorizes the CMRA to
act as an agent for service of process, and (3) acknowledges the
requirements of Sections 17200 and 17500, which prohibit unfair
competition and false advertising. The commercial mail receiving
agency shall thereafter maintain a copy of any United States Postal
Service Form 1583 for each mailbox service customer, along with a
copy of each of the two pieces of identification used by the
customer, for a period of two years after the termination of service
to that customer. Upon the request of the Department of Consumer
Affairs or any law enforcement agency conducting an investigation,
the commercial mail receiving agency shall make available to the
Department of Consumer Affairs or that law enforcement agency, for
purposes of that investigation and copying, its copy of the United
States Postal Service Form 1583 and the two pieces of identification
used by the customer.
(d) (1) Every person receiving private mailbox receiving service
from a CMRA in this state shall be required to sign an agreement,
along with a USPS Form 1583, which authorizes the CMRA owner or
operator to act as agent for service of process for the mail
receiving service customer. Every CMRA owner or operator shall be
required to accept service of process for and on behalf of any of
their mail receiving service customers, and for two years after
termination of any mail receiving service customer agreement. Upon
receipt of any process for any mailbox service customer, the CMRA
owner or operator shall (A) within 48 hours after receipt of any
process, place a copy of the documents or a notice that the documents
were received into the customer's mailbox or other place where the
customer usually receives his or her mail, unless the mail receiving
service for the customer was previously terminated, and (B) within
five days after receipt, send all documents by first-class mail, to
the last known home or personal address of the mail receiving service
customer. The CMRA shall obtain a certificate of mailing in
connection with the mailing of the documents. Service of process
upon the mail receiving service customer shall then be deemed
perfected 10 days after the date of mailing.
If the CMRA owner or operator has complied with the foregoing
requirements and provides to any party participating in a lawsuit
involving a mail receiving service customer a declaration of service
by mail, given under penalty of perjury along with a certificate of
mailing, the CMRA owner or operator shall have no further liability
in connection with acting as agent for service of process for its
mail receiving service customer.
(2) Upon complaint or inquiry concerning any CMRA mail receiving
service customer, the CMRA owner or operator shall inform the person
making the complaint or inquiry that the CMRA is an authorized agent
for service of process on the mail receiving service customer.
(3) Upon presentation of a certified copy of a judgment, the CMRA
shall disclose to the judgment creditor the last known address of any
of its mail receiving service customers against whom the judgment
was obtained.
(e) An owner or operator of a CMRA who, acting in good faith,
contacts a governmental agency concerning suspected illegal or
fraudulent activities carried out by a mail receiving service
customer shall have no liability for claims filed by the customer
arising out of that contact. No owner or operator of a commercial
mail receiving agency that maintains on file a copy of the United
States Postal Service Form 1583 for its private mailbox receiving
service customers and complies with subdivision (c) shall be liable
for any illegal acts of any mail receiving service customer based
only on the fact that the owner or operator of the CMRA provided mail
receiving services to the customer.
(f) The following acknowledgement and notice, substantially in the
form set forth below, shall be delivered to each person obtaining
private mailbox receiving service at a CMRA:
"ACKNOWLEDGEMENT BY PRIVATE MAILBOX SERVICE CUSTOMERS
This acknowledgement is required by Section 17538.5 of the
Business and Professions Code.
Any person obtaining private mailbox receiving service in the
State of California must read and acknowledge receipt of the
following statement, which is to be kept on file at this CMRA and
will be made available, upon demand, to the Department of Consumer
Affairs or any law enforcement agency conducting an investigation.
By requesting and obtaining use of a private mailbox receiving
service in the State of California, I acknowledge that:
1. I am obligated to disclose my actual home address or place of
residence on a USPS Form 1583 or other form as may later be developed
and I further agree that I will provide prompt written notice to
this CMRA of any subsequent change in my home address or place of
residence.
2. By signing below, I irrevocably authorize this CMRA to act as
my agent for service of process to receive any legal documents that
may be served upon me. This authorization shall continue from the
date of this agreement until two years after my mail receiving
service has been terminated. I understand that this CMRA will (A)
place a copy of the documents or a notice that the documents were
received into my mailbox or other place where I usually receive my
mail, unless my mail receiving service has been terminated, and (B)
send all documents by first-class mail to the home or other address
last known to the CMRA.
3. I further acknowledge that I understand that use of a private
mailbox receiving service for commercial purposes in the State of
California requires the user to comply with all applicable laws,
including Section 17538.5 of the Business and Professions Code and
laws prohibiting unfair competition and false advertising as set
forth in Sections 17200 and 17500 of the Business and Professions
Code. Violation of these laws may result in criminal or civil
penalties or both. I understand that the United States Postal
Service Form 1583 that must be prepared for each private mailbox
receiving service customer shall be delivered to the local United
States Post Office and a copy of the form must be retained by this
CMRA and made available upon demand to the Department of Consumer
Affairs or any law enforcement agency conducting an investigation. I
hereby agree to accept and abide by the foregoing requirements.
__________ _____________________________
Date Signature
_____________________________
Name Printed
_____________________________
Street Address
_____________________________
City State Zip"
17538.6. (a) It is unlawful for any person conducting business in
this state to require or request a consumer to issue a postdated
check unless (1) the person accepting the check advises the consumer
in writing that the check may be cashed immediately, notwithstanding
the postdating, unless the consumer files a postdating order with the
consumer's bank pursuant to Section 4401 of the Commercial Code, and
(2) either of the following occurs:
(A) Receipt of the advice is acknowledged by the consumer in
writing.
(B) The advice is clearly printed on an invoice for goods or
services that is provided to the consumer at the same time that the
check is solicited.
(b) This section shall not apply to any person who requires or
requests a consumer to issue a postdated check if the recipient of
the check does not submit the check for collection or cause it to be
submitted for collection until on or after its date.
(c) As used in this section:
(1) "Bank" means any person engaged in the business of banking and
includes, in addition to a commercial bank, a savings and loan
association, savings bank, or credit union.
(2) "Check" means a draft, other than a documentary draft, payable
on demand drawn on a bank, even though it is described by another
term, such as "share draft" or "negotiable order of withdrawal."
17538.7. (a) It is unlawful for a seller to advertise any payment,
number of payments, or period of repayment for any goods, property,
or services purchased through an extension of consumer credit under
an open-end credit plan accepted for purchases by more than one
seller unless the seller clearly and conspicuously discloses all of
the following:
(1) The cash price and the amount or percentage of a downpayment,
if any.
(2) The monthly or other periodic payment, the number of payments
or the period of repayment, the total amount of all payments, and
whether the monthly or other periodic payment is calculated on the
assumption that the purchaser has no outstanding balance due under
the open-end credit plan, if that is the case.
(3) The amount of the finance charge and any periodic rate that
may be applied expressed as an annual percentage rate as described
under subdivision (e). If the open-end credit plan provides for a
variable periodic rate, that fact shall be disclosed.
(4) Any minimum, fixed, transaction, activity, or similar charge
and any membership or participation fee that could be imposed.
(5) The name of the creditor, if not the seller.
(6) Whether the advertised terms are available to the purchaser
only after the creditor's approval, if that is the case.
(b) (1) A catalog or other multiple-page advertisement that gives
information in a table or schedule in sufficient detail to permit
determination of the disclosures required by subdivision (a) shall be
considered a single advertisement if (A) the table or schedule is
clearly and conspicuously set forth, and (B) any statement of the
amount of any payment, the number of payments, or the period of
repayment appearing anywhere else in the catalog or advertisement
clearly refers to the page on which the table or schedule begins.
(2) A catalog or multiple-page advertisement complies with
subdivision (a) if the table or schedule includes all appropriate
disclosures for a representative scale of amounts up to the level of
the more commonly sold higher-priced property or services offered.
(c) It is unlawful for a seller to advertise any payment, number
of payments, or period of repayment for particular goods, property,
or services purchased through an extension of consumer credit under
any open-end credit plan unless the seller clearly and conspicuously
discloses the cash price proximate to the advertised payment, number
of payments, or period of repayment.
(d) It is unlawful for a seller to advertise terms that actually
are not or will not be arranged or offered by the creditor.
(e) (1) For the purposes of this title, the terms "person,"
"creditor," "consumer credit," "open-end credit," "cash price,"
"downpayment," "finance charge," "periodic rate," and "annual
percentage rate" have the same meaning as used in Regulation Z.
(2) The term "Regulation Z" shall mean any rule, regulation, or
interpretation promulgated by the Board of Governors of the Federal
Reserve System under the Federal Truth in Lending Act, (Public Law
90-321, as amended), and any interpretation or approval issued by an
official or employee of the Federal Reserve System duly authorized by
the board under the Truth in Lending Act, to issue those
interpretations or approvals.
17538.8. Any advertisement that offers free or discounted
transportation or certificates to obtain transportation and that
requires the consumer to purchase accommodations through or from a
particular source, or any advertisement that offers free or
discounted accommodations or certificates to obtain accommodations
and that requires the consumer to purchase transportation through or
from a particular source, shall set forth in close proximity to each
reference to free or discounted transportation or accommodations, in
a size and prominence no less than the largest print in the
reference, the total price that shall be paid by the consumer for the
combination of transportation and accommodations. If the
advertisement is oral, the total price shall immediately precede or
follow each description of the free or discounted transportation or
accommodations.
17538.9. (a) For the purposes of this section:
(1) "Company" refers to any entity providing prepaid calling
services to the public using its own or a resold telecommunications
network.
(2) "Prepaid calling services" or "services" refers to any prepaid
telecommunications service that allows consumers to originate calls
through an access number and authorization code, whether manually or
electronically dialed.
(3) "Prepaid calling card" or "card" means any object containing
an access number and authorization code that enables a consumer to
use prepaid calling services. It does not include any object of that
type used for promotional purposes.
(4) "Cellular telephone services" means facilities-based,
commercial mobile telephone services.
(b) The following standards and requirements for consumer
disclosure and services shall apply with respect to the advertising
and sale of prepaid calling cards and prepaid calling services:
(1) Any advertisement of the price, rate, or unit value in
connection with the sale of prepaid calling services shall include a
disclosure of any geographic limitation to the advertised price,
rate, or unit value, as well as a disclosure of any additional
surcharges, call setup charges, or fees applicable to the advertised
price, rate, or unit value.
(2) The following information shall be legibly printed on the
card:
(A) The name of the company.
(B) A toll-free customer service number.
(C) A toll-free network access number, if required to access
service.
(D) The authorization code, if required to access service.
(E) The expiration date or policy, if applicable, except where
paragraph (6) applies.
(3) The company shall print legibly on the card or packaging, and
the vendor shall make available in a prominent area at the point of
sale of the prepaid calling card or prepaid calling services, the
following information:
(A) Any surcharges or fees, including monthly fees, per-call
access fees, or surcharges for the first minute of use that may be
applicable to the use of the prepaid calling card or prepaid calling
services within the United States.
(B) Whether there are additional or different prices, rates, or
unit values applicable to international usage of the prepaid calling
card or prepaid calling services.
(C) The minimum charge per call, such as a three-minute minimum
charge, if any.
(D) The charge for calls that do not connect, if any.
(E) The definition of the term "unit," if applicable.
(F) The billing decrement.
(G) The name of the company.
(H) The recharge policy, if any.
(I) The refund policy, if any.
(J) The expiration policy, if any.
(K) The 24-hour customer service toll-free telephone number
required in paragraph (4).
(4) Each company shall establish and maintain a toll-free customer
service telephone number with a live operator to answer incoming
calls 24-hours a day, seven days a week, through which consumers may
lodge relevant complaints and through which the following information
may be obtained by consumers:
(A) All rates, surcharges, and fees.
(B) The company's recharge, refund, and expiration policies.
(C) The balance of use in the consumer's account, if applicable.
A company offering prepaid cellular telephone services shall be
deemed to be in compliance with the requirements of this paragraph
if, when a request for information is made outside of normal business
hours, that company provides the information requested on the next
business day.
(5) Each company that issues prepaid calling cards or prepaid
calling services shall provide a refund to any purchaser of a prepaid
calling card or prepaid calling services if the network services
associated with that card or services fail to operate in a
commercially reasonable manner. The refund shall be in an amount not
less than the value remaining on the card or in the form of a
replacement card, and shall be provided to the consumer within 60
days from the date of receipt of notification from the consumer that
the card has failed to operate in a commercially reasonable manner.
(6) Cards without a specific expiration date or policy printed on
the card, and with a balance of service remaining, shall be
considered active for a minimum of one year from the date of
purchase, or if recharged, from the date of the last recharge.
(7) In the case of prepaid calling cards or services utilized at a
payphone, the company may provide voice prompt notification of any
applicable payphone surcharges, in lieu of providing notice of
surcharges as required by paragraph (1) and by subparagraph (A) of
paragraph (3).
(c) This section shall become operative on July 1, 1999.