Wisconsin DOJ And DATCP Are Increasing Enforcement of Telemarketing Laws
Patrick L. Breen , Sarah J. Horner | 04.10.23
Based on heightened enforcement of Wisconsin’s telemarketing laws by the Wisconsin Department of Justice (DOJ) and the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP), dealers should review their marketing practices to make sure they are compliant in order to avoid harsh penalties that could result from a violation.
Dealers Should Be Registered as Telephone Solicitors.
Any motor vehicle dealer that requires an employee or contractor to make phone calls or send text messages to Wisconsin residents for the purpose of encouraging them to purchase a product must be licensed as a registered telephone solicitor. This requirement applies even if the dealer uses a third-party vendor to make the calls or send the texts.
Telephone solicitor registration can be completed online through DATCP’s website, or by downloading a registration packet and submitting the completed forms to DATCP by mail to 2811 Agriculture Drive, Madison, WI 53718. Once registration is complete, the dealer should receive a registration number, pay an initial fee, and make annual registration renewal payments to DATCP each year.
Anyone who makes a call or sends a text on behalf of a dealer to a Wisconsin resident in an effort to sell them a product must, at the beginning of the conversation, identify who they are and the dealership that is selling the product.
Failure to register as a telephone solicitor is a violation of Wisconsin law in and of itself and the penalty for making telephone solicitations without a license is $100 per call and text.
Dealers May Not Solicit from Do-Not-Call Registry.
Every motor vehicle dealer that is registered as a telephone solicitor in Wisconsin must obtain at least once every 31 days the current do-not-call registry from the national do-not-call registry website and reference it carefully when making telephone solicitations.
No person acting on behalf of a dealer may: (a) use an electronically prerecorded message in a telephone solicitation without the recipient’s consent; (b) make a call or send a text to a phone number listed on the do-not-call registry for the purpose of encouraging the recipient to purchase a product; or © make a call or send a text to a nonresidential customer who has provided notice by mail that they do not wish to receive such solicitations.
But there are two important exceptions. A person acting on behalf of a motor vehicle dealer can make a call or send a text to a phone number listed on the do-not-call registry or to a nonresident who has opted out of solicitations to encourage them to purchase a product if: (1) the call or text is made in response to the recipient’s request for a call or text regarding the product; or (2) the call or text is made to a recipient who is a “current client” of the dealer.
But not every person the dealer has sold a vehicle to is a “current client” who can be contacted by phone regardless of whether they are listed on the do-not-call registry. DATCP defines “current client” as “a person who has a current agreement to receive, from the telephone caller or the person on whose behalf the call is made, property, goods, or services of the type promoted by the telephone call.”
In other words, a “current client” is someone who has acknowledged that they wish to hear from the dealer by giving some form of affirmation that they want to be called. There is no legal requirement for a dealer to document verbal acknowledgment from a customer that they want to receive calls and texts from them. But the dealer needs to be able to prove that any person listed on the do-not-call registry that they contact via phone or text has given the dealer permission to do so. This could be accomplished by asking each customer sign a statement acknowledging that “any person acting on behalf of the dealer may contact me.”
The penalty for making telephone solicitations to any person on the do-not-call registry who is not a “current client” is $100 per call and text.
Wisconsin law prohibits motor vehicle dealers from calling or texting any resident on the do-not-call registry and any nonresident who has opted out by mail, unless the person qualifies as a “current client” who has acknowledged the dealer may contact them. Dealers should ensure their marketing practices comply with these laws in light of the harsh penalties that could be imposed from the recent uptick in enforcement by the DOJ and DATCP.
The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.