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Uniform Debt-Management Services Act - Page 10

SECTION 18. COMMUNICATION BY ELECTRONIC OR OTHER MEANS.

(a) In this section:

(1) “Federal act” means the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq.[, as amended].

(2) “Consumer” means an individual who seeks or obtains goods or services that are used primarily for personal, family, or household purposes.

(b) A provider may satisfy the requirements of Section 17, 19, or 27 by means of the Internet or other electronic means if the provider obtains a consumer’s consent in the manner provided by Section 101(c)(1) of the federal act.

(c) The disclosures and materials required by Sections 17, 19, and 27 shall be presented in a form that is capable of being accurately reproduced for later reference.

(d) With respect to disclosure by means of an Internet website, the disclosure of the information required by Section 17(d) must appear on one or more screens that:

(1) contain no other information; and

(2) the individual must see before proceeding to assent to formation of a plan.

(e) At the time of providing the materials and agreement required by Sections 17(c) and (d), 19, and 27, a provider shall inform the individual that upon electronic, telephonic, or written request, it will send the individual a written copy of the materials, and shall comply with a request as provided in subsection (f).

(f) If a provider is requested, before the expiration of 90 days after a plan is completed or terminated, to send a written copy of the materials required by Section 17(c) and

(d), 19, or 27, the provider shall send them at no charge within three business days after the request, but the provider need not comply with a request more than once per calendar month or if it reasonably believes the request is made for purposes of harassment. If a request is made more than 90 days after a plan is completed or terminated, the provider shall send within a reasonable time a written copy of the materials requested.

(g) A provider that maintains an Internet website shall disclose on the home page of its website or on a page that is clearly and conspicuously connected to the home page by a link that clearly reveals its contents:

(1) its name and all names under which it does business;

(2) its principal business address, telephone number, and electronic-mail address, if any; and

(3) the names of its principal officers.

(h) Subject to subsection (i), if a consumer who has consented to electronic communication in the manner provided by Section 101 of the federal act withdraws consent as provided in the federal act, a provider may terminate its agreement with the consumer.

(i) If a provider wishes to terminate an agreement with a consumer pursuant to subsection (h), it shall notify the consumer that it will terminate the agreement unless the consumer, within 30 days after receiving the notification, consents to electronic communication in the manner provided in Section 101(c) of the federal act. If the consumer consents, the provider may terminate the agreement only as permitted by Section 19(a)(6)(G).

Legislative Note: In states in which the constitution does not permit the phrase “as amended,” the phrase should be deleted in subsection (a).

Comment

1. Subsection (b) permits electronic delivery of the information required by sections 17 and 27, and it permits electronic formation of agreements. It is designed to coordinate with the federal E-Sign Act, which establishes certain prerequisites before written documents or disclosures required by state law may be delivered via electronic media. These prerequisites exist, however, only for transactions with consumers. States may not extend those prerequisites to non-consumers, so unlike the rest of this Act, some of this section applies only to interactions with consumers, a class that does not include all individuals.

If a merchant wants to provide required information by means of electronic communication, the federal statute requires it to obtain the consumer’s affirmative consent to the use of electronic media and inform the consumer of any right to have the information or documents provided in written form and the right to withdraw at any time his or her consent to disclosure by electronic medium. Subsection (b) makes compliance with the federal statute a prerequisite also to complying with this Act through the use of electronic communication. If a provider fails to comply with this subsection, then the permission granted by this section does not apply, and the provider must deliver the required documents and disclosures in writing.

2. The language of subsection (c) is drawn from E-Sign § 7001(d)(1)(B), and in the context of this Act, the obligation of good faith requires that the provider present the material in a printable format. The requirement of the subsection, however, is not limited to consumers. It applies with respect to all individuals.

3. To meet the objectives of the separate delivery contemplated by section 17, electronic delivery must satisfy certain requirements of form, such as appearing on a screen that contains no other information. Although the record may not contain other information, it does not violate subsection (d) if the record is an electronic page on a website and the record reveals how the individual may exit the page.

4. Subsections (e) and (f) are not limited to providers that communicate electronically and are not limited to consumers. They confer on all individuals the right, throughout the course of a plan and for 90 days thereafter, to receive a written version of all materials required by this Act within three days of requesting them. As to all individuals, this right must be disclosed in order for a provider to comply with this section, and if a provider wishes to comply with this section electronically, it must be disclosed to a consumer in order for the provider to comply with E-Sign (section 101(c)(1)(B)(iv), 15 U.S.C. § 7001(c)(1)(B)(iv)). See Official Comment 1.

5. A provider may not limit the medium by which the individual requests a copy. Subsection (f) protects the provider against harassment. An example of harassment might be a request for a copy of a periodic report three years after the period covered by the report. The subsection does not establish a bright-line rule, however, and in a particular case the individual might indeed have a legitimate need for an old report.

Since the periodic reports must be made monthly and this section gives the individual a right to receive a written copy of the report, a request every month for a written version of that month’s report cannot, within the meaning of this section, be made for purposes of harassment. If requested each month, the provider must comply each month. Similarly, if requested in advance to send written versions of the monthly reports, subsections (e) and (f) require the provider to comply with the request because the request is made before the expiration of 90 days after a plan is completed or terminated. If the request relates to historical materials, the provider may send a consolidated statement, rather than a copy of each periodic statement, so long as it clearly reveals the information required to be on each periodic report.

Section 27(c) requires a provider to retain records on an individual for five years. That sets the outer limit on the time within which an individual may make a request under this section.

6. A provider might do business under numerous names. Subsection (g) applies to all providers, even if they make disclosures and form agreements using a paper medium. It requires disclosure of all the provider’s business names, along with the provider’s principal location and officers, but it permits the provider to disclose this information via a link to another page of the website. The link must reveal its contents, e.g., “For the address and other information about [name of provider], click here.”

7. Subsections (h) and (i) are designed to implement E-Sign section 101(c)(1)(B), which authorizes a consumer to withdraw consent to electronic communication, in which event the merchant may terminate the relationship. Subsection (h) gives a provider the right to terminate an agreement with a consumer, and subsection (i) gives the consumer a right to reinstate the agreement.