48-1005. EXEMPTIONS. (1) The following telephone solicitors are exempt from the provisions of section 48-1004, Idaho Code:

(a) A person engaging in telephone solicitations where:

(i) The solicitation is an isolated transaction and not done in the course of a pattern of repeated transactions of like nature; or

(ii) Less than sixty percent (60%) of such person’s prior year’s sales were made as a result of telephone solicitations as defined in this chapter.

(b) A person making a telephone solicitation where the purchaser contacted has previously purchased goods or services from the person or the business entity for which the person is calling.

(c) A person making a telephone solicitation:

(i) Without the intent to make or obtain provisional acceptance of a purchase during the telephone solicitation; and

(ii) Who only arranges for the major sales presentation to be made at a later face-to-face meeting between the person and the purchaser, and the later face-to-face meeting is not for the purpose of collecting the payment or delivering any item purchased.

(d) A person whose business is licensed by any federal or state of Idaho governmental agency, except the secretary of state office, which has the power to revoke any license issued by the agency.

(e) A person making a telephone solicitation solely for purposes of selling a subscription to or advertising in a newspaper or telephone directory of general circulation.

(f) A person making a telephone solicitation solely for purposes of selling a magazine, periodical, book, or musical or video recording:

(i) Under which the telephone solicitor provides the purchaser with a form which the purchaser may use to instruct the telephone solicitor not to ship the merchandise; and

(ii) Which complies with the federal trade commission’s "use of negative option plans by sellers in commerce rule," 16 CFR 425, regulation concerning "use of negative option plans by sellers in commerce" or a continuity plan, subscription arrangement, series arrangement or single purchase under which the telephone solicitor ships goods to a purchaser who has consented in advance to receive such goods and the purchaser is given the opportunity to review goods for at least seven (7) days and to receive a full refund for return of undamaged goods.

(g) A person who has at least one (1) business location in the state under the same name as that used in connection with telephone solicitations and ninety percent (90%) of the person’s business involves the purchaser’s obtaining services and products at the person’s business location.

(h) An issuer or subsidiary of an issuer that has a class of securities which is subject to section 12 of the securities exchange act of 1934 (15 USC sec. 78l) and which is either registered or exempt from registration under paragraphs (A), (B), (C), (E), (F), (G) or (H) of subsection (g)(2) of that section.

(i) A person who solicits sales by periodically publishing and delivering a catalog of the person’s merchandise to purchasers if the catalog:

(i) Contains a written description or illustration of each item offered for sale;

(ii) Includes the business address or home office address of the telephone solicitor;

(iii) Includes at least twenty-four (24) pages of written material and illustrations and are distributed in more than one state; and

(iv) Has an annual circulation by mailing of not less than two hundred fifty thousand (250,000).

(2) In any action, suit, or proceeding to enforce the provisions of this chapter, the burden of proving an exemption is upon the person claiming it.

History:

[48-1005, added 1992, ch. 27, sec. 1, p. 86; am. 1993, ch. 156, sec. 1, p. 400.]