Telemarketing and Consumer Fraud and Abuse Prevention Act

Telemarketing and Consumer Fraud and Abuse Prevention Act - Directs the Federal Trade Commission (FTC) to prescribe rules governing telemarketing activities. Requires the FTC to consider the inclusion of provisions in such rules for: (1) refunds for untimely delivery of goods or services; (2) order cancellations; (3) time restrictions in connection with unsolicited sales calls; (4) the prohibition of telemarketing generated by computers on equipment that does not permit the person called to terminate the call; and (5) recordkeeping requirements. Directs the FTC to prescribe rules defining and prohibiting fraudulent telemarketing acts or practices. Declares that rule violators shall be considered to have engaged in an unfair or deceptive trade practice.

Excludes from the definition of "telemarketing" the solicitation of sales through the mailing of a catalog.

Authorizes both citizen suits (amount in controversy must exceed $50,000 in actual damages for each person adversely affected by such telemarketing and suit must be brought within three years after discovery of the violation) and civil actions on behalf of a State for relief against entities engaging in a pattern or practice of telemarketing which violates an FTC regulation. Prescribes the general framework to govern such suits.

Amends the Federal Trade Commission Act to: (1) authorize the court, where the interests of justice require, to summon and serve process upon any party, without regard to whether they reside or transact business in the district in which the suit is brought; (2) specify methods for service of process; (3) include within the definition of "physical evidence" subject to a civil investigative demand (CID) any medical device, food product, drug, nutritional or cosmetic product, or audio or video recording; and (4) revise requirements with respect to the issuance of CIDs when ordering a person to produce physical evidence or documentary material (currently, applies to the latter only) that may be relevant to unfair or deceptive practices.

Amends the Federal Trade Commission Act to prohibit the dissemination of false advertisements concerning services.

Directs the FTC to establish a clearinghouse for inquiries made to Federal agencies concerning telemarketing.

Amends the Right to Financial Privacy Act of 1978 to permit court-ordered disclosure of financial records without notice to the subject of the records if the court finds that dissipation, removal, or destruction of assets subject to seizure for violation of the law is likely.

Authorizes the FTC to bring criminal contempt actions for violations of orders obtained in cases brought under provisions of the FTC Act pertaining to the dissemination of false advertisements in or affecting commerce.

Makes this Act inapplicable to securities or futures transactions by individuals regulated by the Securities and Exchange Commission or the Commodity Futures Trading Commission.

Directs the FTC to conduct a study and report to the Congress on unfair or deceptive acts or practices in the life care home industry and on whether it intends to initiate a trade regulation rulemaking.

Terminates provisions of this Act with respect to telemarketing fraud and abuse rulemakings and enforcement five years after the date of enactment.

 
Calendar No. 739
101st CONGRESS
2d Session
S. 2494
[Report No. 101-396]
A BILL
To strengthen the authority of the Federal Trade Commission regarding
fraud committed in connection with sales made with a telephone, and for
other purposes.
July 26 (legislative day, JULY 10), 1990
Reported with an amendment
S 2494 RS
Calendar No. 739
101st CONGRESS
2d Session
S. 2494
[Report No. 101-396]
To strengthen the authority of the Federal Trade Commission regarding
fraud committed in connection with sales made with a telephone, and for
other purposes.
IN THE SENATE OF THE UNITED STATES
April 23 (legislative day, APRIL 18), 1990
Mr. BRYAN introduced the following bill; which was read twice and referred
to the Committee on Commerce, Science, and Transportation
July 26 (legislative day, JULY 10), 1990
Reported by Mr. HOLLINGS, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
A BILL
To strengthen the authority of the Federal Trade Commission regarding
fraud committed in connection with sales made with a telephone, and for
other purposes.
  Be it enacted by the Senate and House of Representatives of the United States
  of America in Congress assembled,  [Struck out->] That this Act may be cited
  as the `Telemarketing Fraud and Abuse Prevention Act of 1990'. [<-Struck out]
 [Struck out->] DEFINITIONS [<-Struck out]
 [Struck out->]   SEC. 2. As used in this Act, the term-- [<-Struck out]
 [Struck out->]   (1) `attorney general' means the chief legal officer of
 a State; [<-Struck out]
 [Struck out->]   (2) `Commission' means the Federal Trade Commission;
 [<-Struck out]
 [Struck out->]   (3) `State' means any State of the United States, the
 District of Columbia, Puerto Rico, the Northern Mariana Islands, and any
 territory or possession of the United States; and [<-Struck out]
 [Struck out->]   (4) `telemarketing' means a plan, program, or campaign
 conducted to induce purchases of goods or services by significant use of
 one or more telephones through interstate voice telephone calls; the term
 does not include other use of a telephone in connection with business or
 personal transactions. [<-Struck out]
 [Struck out->] TELEMARKETING RULES [<-Struck out]
 [Struck out->]   SEC. 3. (a) The Commission shall prescribe rules regarding
 telemarketing activities. In prescribing such rules, the Commission shall
 consider the inclusion of-- [<-Struck out]
 [Struck out->]   (1) a requirement that goods or services offered by
 telemarketing be shipped or provided within a specified period and that
 if the goods or services are not shipped or provided within such period a
 refund be required; [<-Struck out]
 [Struck out->]   (2) authority for a person who orders a good or service
 through telemarketing to cancel the order within a specified period;
 [<-Struck out]
 [Struck out->]   (3) restrictions on the hours of the day when unsolicited
 telephone calls can be made to consumers; [<-Struck out]
 [Struck out->]   (4) a prohibition of telemarketing generated by computers
 on equipment that does not permit the individual called to terminate the
 telephone call immediately; and [<-Struck out]
 [Struck out->]   (5) recordkeeping requirements. [<-Struck out]
 [Struck out->]   (b) The Commission shall prescribe the rules under subsection
 (a) of this section within one hundred and eighty days after the date of
 enactment of this Act. Such rules shall be prescribed in accordance with
 section 553 of title 5, United States Code. [<-Struck out]
 [Struck out->]   (c) Any person who violates any rule prescribed under
 subsection (a) of this section shall be considered to have engaged in an
 unfair or deceptive act or practice in or affecting commerce prohibited by
 section 5 of the Federal Trade Commission Act (15 U.S.C. 45). [<-Struck out]
 [Struck out->]   (d) If, upon application to the Commission by an appropriate
 State agency, the Commission determines (pursuant to rules prescribed by
 the Commission) that-- [<-Struck out]
 [Struck out->]   (1) there is in effect a State requirement which applies
 to any telemarketing to which this section applies; and [<-Struck out]
 [Struck out->]   (2) such State requirement affords an overall level of
 protection to consumers which is as great as, or greater than, the protection
 afforded by this section; [<-Struck out]
 [Struck out->] then only such State requirement shall be applicable to the
 extent specified in such determination for so long as the State administers
 and enforces effectively any such State requirement, as determined by the
 Commission. [<-Struck out]
 [Struck out->] ACTIONS BY STATE ATTORNEYS GENERAL [<-Struck out]
 [Struck out->]   SEC. 4. (a)(1) Whenever it shall appear to the attorney
 general of any State that the interests of the residents of that State have
 been, are being, or may be threatened or adversely affected because any person
 has engaged, is engaging, or is about to engage in telemarketing which is a
 fraudulent act or practice or which violates any rule, regulation, or order
 of the Commission under this Act, the State may bring a civil action on
 behalf of its residents to enjoin such telemarketing, to enforce compliance
 with any rule, regulation, or order of the Commission under this Act, to
 obtain damages on behalf of their residents, or to obtain such further and
 other relief as the court may deem appropriate. [<-Struck out]
 [Struck out->]   (2) The district courts of the United States, the United
 States courts of any territory, and the District Court of the United States
 for the District of Columbia shall have jurisdiction over all civil actions
 brought under this section to enforce any liability or duty created by any
 rule, regulation, or order of the Commission under this Act, or to obtain
 damages or other relief with respect thereto. Upon proper application,
 such courts shall also have jurisdiction to issue writs of mandamus, or
 orders affording like relief, commanding the defendant to comply with the
 provisions of any rule, regulation, or order of the Commission under this
 Act, including the requirement that the defendant take such action as is
 necessary to remove the danger of violation of any such rule, regulation,
 or order. Upon a proper showing, a permanent or temporary injunction or
 restraining order shall be granted without bond. [<-Struck out]
 [Struck out->]   (3) Immediately upon instituting any such civil action,
 the State shall serve written notice of the action upon the Commission and
 provide the Commission with a copy of its complaint, and the Commission shall
 have the right (A) to intervene in the action, (B) upon so intervening,
 to be heard on all matters arising therein, and (C) to file petitions for
 appeal. [<-Struck out]
 [Struck out->]   (4) Any civil action brought under this section in a
 district court of the United States may be brought in the district wherein
 the defendant is found or is an inhabitant or transacts business or wherein
 the telemarketing occurred, is occurring, or is about to occur, and process
 in such cases may be served in any district in which the defendant is an
 inhabitant or wherever the defendant may be found. [<-Struck out]
 [Struck out->]   (5) For purposes of bringing any civil action under
 this section, nothing in this Act shall prevent the attorney general from
 exercising the powers conferred on the attorney general by the laws of such
 State to conduct investigations or to administer oaths or affirmations or
 to compel the attendance of witnesses or the production of documentary and
 other evidence. [<-Struck out]
 [Struck out->]   (6) Nothing contained in this section shall prohibit an
 authorized State official from proceeding in State court on the basis of
 an alleged violation of any general civil or criminal antifraud statute of
 such State. [<-Struck out]
 [Struck out->]   (7) The State shall give the Commission prior written
 notice of its intent to proceed, before instituting a proceeding in State
 court as described in this subsection, and shall furnish the Commission with
 a copy of its complaint immediately upon instituting such proceeding. The
 Commission shall have the right (A) to intervene in the proceeding, (B)
 upon so intervening, to be heard on all matters arising therein, and (C) to
 file a petition for appeal. The Commission or the defendant may remove such
 proceeding to the district court of the United States from the proper district
 by following the procedure for removal otherwise provided by law, except
 that the petition for removal shall be filed within sixty days after service
 of the summons and complaint upon the defendant. The Commission shall have
 the right to appear as amicus curiae in any such proceeding. [<-Struck out]
 [Struck out->] ACTIONS BROUGHT BY PRIVATE PERSONS [<-Struck out]
 [Struck out->]   SEC. 5. (a) As used in this section, the term `person
 adversely affected by telemarketing' includes a member organization comprised
 of financial institution members, or a parent organization of such member
 organization, if one or more of the financial institution members is
 eligible to bring a civil action under this subsection, and such term does
 not include a governmental entity. [<-Struck out]
 [Struck out->]   (b)(1) Any person adversely affected by telemarketing which
 is a fraudulent act or practice or which violates any rule, regulation,
 or order of the Commission under this Act may bring a civil action
 against a person who has engaged, is engaging, or is about to engage in
 such telemarketing if the amount in controversy exceeds the sum or value
 of $50,000. Such an action may be brought to enjoin such telemarketing, to
 enforce compliance with any rule, regulation, or order of the Commission under
 this Act, to obtain damages on behalf of their residents, or to obtain such
 further and other relief as the court may deem appropriate. [<-Struck out]
 [Struck out->]   (2) The district courts of the United States, the United
 States courts of any territory, and the District Court of the United States
 for the District of Columbia shall have jurisdiction over all civil actions
 brought under this section to enforce any liability or duty created by any
 rule, regulation, or order of the Commission under this Act, or to obtain
 damages or other relief with respect thereto. Upon proper application,
 such courts shall also have jurisdiction to issue writs of mandamus, or
 order affording like relief, commanding the defendant to comply with the
 provisions of any rule, regulation, or order of the Commission under this
 Act, including the requirement that the defendant take such action as is
 necessary to remove the danger of violation or of any such rule, regulation,
 or order. Upon a proper showing, a permanent or temporary injunction or
 restraining order shall be granted without bond. [<-Struck out]
 [Struck out->]   (3) Immediately upon instituting any such civil action,
 the plaintiff shall serve written notice of the action upon the Commission
 and provide the Commission with a copy of its complaint, and the Commission
 shall have the right (A) to intervene in the action, (B) upon so intervening,
 to be heard on all matters arising therein, and (C) to file petitions for
 appeal. [<-Struck out]
 [Struck out->]   (4) Any civil action brought under this section in a
 district court of the United States may be brought in the district wherein
 the defendant is found or is an inhabitant or transacts business or wherein
 the telemarking occurred, is occurring, or is about to occur, and process
 in such cases may be served in any district in which the defendant is an
 inhabitant or wherever the defendant may be found. [<-Struck out]
 [Struck out->]   (c) The court, in issuing any final order in any action
 brought under subsection (b) of this section, may award costs of suit
 and reasonable fees for attorneys and export witnesses if the plaintiff
 prevails. [<-Struck out]
 [Struck out->]   (d) Nothing in this section shall restrict any right which
 any person may have under any statute or common law to seek enforcement of
 this Act or any rule, regulation, or order under this Act or to seek any
 other relief. [<-Struck out]
 [Struck out->] VENUE; SERVICE OF PROCESS [<-Struck out]
 [Struck out->]   SEC. 6. (a) Subsections (a) and (b) of section 13 of the
 Federal Trade Commission Act (15 U.S.C. 53) are each amended by adding
 at the end thereof the following: `Whenever it appears to the court that
 the interests of justice require that any other person, partnership, or
 corporation should be a party in such suit, the court may cause such person,
 partnership, or corporation to be summoned without regard to whether they
 reside or transact business in the district in which the suit is brought,
 and to that end process may be served in any district.'. [<-Struck out]
 [Struck out->]   (b) Section 13 of the Federal Trade Commission Act (15
 U.S.C. 53) is amended-- [<-Struck out]
 [Struck out->]   (1) by redesignating subsection (c) as subsection (d);
 and [<-Struck out]
 [Struck out->]   (2) by inserting immediately after subsection (b) the
 following: [<-Struck out]
 [Struck out->]   `(c) Any process of the Commission under this section may
 be served by any person duly authorized by the Commission-- [<-Struck out]
 [Struck out->]   `(1) by delivering a copy of such process to the person to
 be served, to a member of the partnership to be served, or to the president,
 secretary, or other executive officer or a director of the corporation to
 be served; [<-Struck out]
 [Struck out->]   `(2) by leaving a copy of such process at the residence
 or the principal office or place of business of such person, partnership,
 or corporation; or [<-Struck out]
 [Struck out->]   `(3) by mailing a copy of such process by registered mail
 or certified mail addressed to such person, partnership, or corporation
 at his, her, or its residence, principal office, or principal place of
 business. [<-Struck out]
 [Struck out->] The verified return by the person serving such process
 setting forth the manner of such service shall be proof of the process,
 and the return post office receipt for such process mailed by registered
 mail or certified mail as provided in this subsection shall be proof of
 the service of the process.'. [<-Struck out]
 [Struck out->] SUBPOENA [<-Struck out]
 [Struck out->]   SEC. 7. (a) Section 20(a) of the Federal Trade Commission
 Act (15 U.S.C. 57b-1(a)) is amended-- [<-Struck out]
 [Struck out->]   (1) by redesignating paragraph (7) as paragraph (8); and
 [<-Struck out]
 [Struck out->]   (2) by inserting immediately after paragraph (6) the
 following new paragraph: [<-Struck out]
 [Struck out->]   `(7) The term `physical evidence' means any object or device,
 including any medical device, food product, drug, nutritional product,
 cosmetic product, or audio or video recording.'. [<-Struck out]
 [Struck out->]   (b) Section 20(c)(1) of the Federal Trade Commission Act
 (15 U.S.C. 57b-1(c)(1)) is amended-- [<-Struck out]
 [Struck out->]   (1) by inserting `physical evidence or' immediately after
 `any' the second time it appears; [<-Struck out]
 [Struck out->]   (2) by inserting `to produce such physical evidence for
 inspection,' immediately before `to produce'; [<-Struck out]
 [Struck out->]   (3) by inserting `physical evidence,' immediately after
 `concerning'; and [<-Struck out]
 [Struck out->]   (4) by inserting `evidence,' immediately before `material,
 answers,'. [<-Struck out]
 [Struck out->]   (c) Section 20(c)(3) of the Federal Trade Commission Act
 (15 U.S.C. 57b-1(c)(3)) is amended-- [<-Struck out]
 [Struck out->]   (1) by inserting `physical evidence or' immediately before
 `documentary material'; [<-Struck out]
 [Struck out->]   (2) in subparagraph (A)-- [<-Struck out]
 [Struck out->]   (A) by inserting `physical evidence or' immediately before
 `documentary'; and [<-Struck out]
 [Struck out->]   (B) by inserting `evidence or' immediately after `permit
 such'; [<-Struck out]
 [Struck out->]   (3) in subparagraph (B), by inserting `evidence or'
 immediately before `material'; and [<-Struck out]
 [Struck out->]   (4) in subparagraph (C), by inserting `evidence or'
 immediately before `material'. [<-Struck out]
 [Struck out->]   (d) Section 20(c)(10) of the Federal Trade Commission Act
 (15 U.S.C. 57b-1(c)(10)) is amended by inserting `physical evidence or'
 immediately before `documentary material' each place it appears. [<-Struck
 out]
 [Struck out->] CLEARINGHOUSE [<-Struck out]
 [Struck out->]   SEC. 8. The Commission shall establish a clearinghouse
 for inquiries made to Federal agencies concerning telemarketing. The
 clearinghouse will provide information (other than information which may
 not be disclosed under section 552(b) of title 5, United States Code, or
 under regulations prescribed by the Commission to implement section 552(b)
 of title 5, United States Code) to anyone making inquiries restricting
 persons engaged in telemarketing or direct such inquiries to the appropriate
 Federal or State agency. [<-Struck out]
 [Struck out->] ADMINISTRATION AND APPLICABILITY OF ACT [<-Struck out]
 [Struck out->]   SEC. 9. (a) Except as otherwise provided in sections 4
 and 5 of this Act, this Act shall be enforced by the Commission under the
 Federal Trade Commission Act (15 U.S.C. 41 et seq.). [<-Struck out]
 [Struck out->]   (b) The Commission shall prevent any person from violating
 a rule, regulation, or order of the Commission under this Act in the
 same manner, by the same means, and with the same jurisdiction, powers,
 and duties as though all applicable terms and provisions of the Federal
 Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made
 a part of this Act. Any person who violates such a rule, regulation, or
 order shall be subject to the penalties and entitled to the privileges and
 immunities provided in the Federal Trade Commission Act in the same manner,
 by the same means, and with the same jurisdiction, powers, and duties as
 though all applicable terms and provisions of the Federal Trade Commission
 Act were incorporated into and made a part of this Act. [<-Struck out]
 [Struck out->]   (c) Nothing in this Act shall be construed to vest the
 Commission, the attorney general of any State, or any person with jurisdiction
 or authority over any person in addition to any jurisdiction or authority
 granted to the Commission in the Federal Trade Commission Act. [<-Struck out]
That this Act may be cited as the `Telemarketing and Consumer Fraud and
Abuse Prevention Act'.
DEFINITIONS
  SEC. 2. As used in this Act, the term--
  (1) `attorney general' means the chief legal officer of a State;
  (2) `Commission' means the Federal Trade Commission;
  (3) `State' means any State of the United States, the District of Columbia,
  Puerto Rico, the Northern Mariana Islands, and any territory or possession
  of the United States; and
  (4) `telemarketing' means a plan, program, or campaign which is conducted
  to induce purchases of goods or services by significant use of one or more
  telephones and which has involved interstate telephone calls; the term
  does not include other use of a telephone in connection with business or
  personal transactions.
TELEMARKETING RULES
  SEC. 3. (a) The Commission shall prescribe rules regarding telemarketing
  activities. In prescribing such rules, the Commission shall consider the
  inclusion of--
  (1) a requirement that goods or services offered by telemarketing be
  shipped or provided within a specified period and that if the goods or
  services are not shipped or provided within such period a refund be required;
  (2) authority for a person who orders a good or service through telemarketing
  to cancel the order within a specified period;
  (3) restrictions on the hours of the day when unsolicited telephone calls
  can be made to consumers;
  (4) a prohibition of telemarketing generated by computers on equipment that
  does not permit the individual called to terminate the telephone call; and
  (5) recordkeeping requirements.
  (b) The Commission also shall prescribe rules prohibiting fraudulent
  telemarketing acts or practices and shall include in such rules a definition
  of the term `fraudulent telemarketing acts or practices'.
  (c) The Commission shall prescribe the rules under subsections (a) and
  (b) of this section within 180 days after the date of enactment of this
  Act. Such rules shall be prescribed in accordance with section 553 of
  title 5, United States Code.
  (d) Any violation of any rule prescribed under subsection (a) or (b)
  of this section shall be treated as a violation of a rule under section
  5 of the Federal Trade Commission Act (15 U.S.C. 45) regarding unfair or
  deceptive acts or practices (subject to any remedy or penalty applicable
  to any violation thereof).
  (e) The rules promulgated under this section shall not be construed as
  preempting State law.
ACTIONS BY STATE ATTORNEYS GENERAL
  SEC. 4. (a) Whenever the attorney general of any State has reason to
  believe that the interests of the residents of that State have been or are
  being threatened or adversely affected because any person has engaged or is
  engaging in telemarketing which violates any rule, regulation, or order of
  the Commission under this Act, the State may bring a civil action on behalf
  of its residents to enjoin such telemarketing, to enforce compliance with
  any rule, regulation, or order of the Commission under this Act, to obtain
  damages on behalf of their residents, or to obtain such further and other
  relief as the court may deem appropriate.
  (b) The district courts of the United States, the United States courts of any
  territory, and the District Court of the United States for the District of
  Columbia shall have exclusive jurisdiction over all civil actions brought
  under this section to enforce any liability or duty created by any rule,
  regulation, or order of the Commission under this Act, or to obtain
  damages or other relief with respect thereto. Upon proper application,
  such courts shall also have jurisdiction to issue writs of mandamus, or
  orders affording like relief, commanding the defendant to comply with the
  provisions of any rule, regulation, or order of the Commission under this
  Act, including the requirement that the defendant take such action as is
  necessary to remove the danger of violation of any such rule, regulation,
  or order. Upon a proper showing, a permanent or temporary injunction or
  restraining order shall be granted without bond.
  (c) The State shall serve prior written notice of any such civil action upon
  the Commission and provide the Commission with a copy of its complaint,
  except in any case where such prior notice is not feasible, in which
  case the State shall serve such notice immediately upon instituting such
  action. The Commission shall have the right (1) to intervene in the action,
  (2) upon so intervening, to be heard on all matters arising therein, and
  (3) to file petitions for appeal.
  (d) Any civil action brought under this section in a district court of the
  United States may be brought in the district wherein the defendant is found
  or is an inhabitant or transacts business or wherein the telemarketing
  occurred or is occurring, and process in such cases may be served in any
  district in which the defendant is an inhabitant or wherever the defendant
  may be found.
  (e) For purposes of bringing any civil action under this section, nothing
  in this Act shall prevent the attorney general from exercising the powers
  conferred on the attorney general by the laws of such State to conduct
  investigations or to administer oaths or affirmations or to compel the
  attendance of witnesses or the production of documentary and other evidence.
  (f) Nothing contained in this section shall prohibit an authorized State
  official from proceeding in State court on the basis of an alleged violation
  of any general civil or criminal antifraud statute of such State.
  (g) Whenever the Commission has instituted a civil action for violation
  of any rule prescribed under this Act, no State may, during the pendency
  of such action instituted by the Commission, subsequently institute a
  civil action against any defendant named in the Commission's complaint
  for violation of any rule as alleged in the Commission's complaint.
ACTIONS BROUGHT BY PRIVATE PERSONS
  SEC. 5. (a) As used in this section, the term `person adversely affected
  by telemarketing' means--
  (1) any person who has incurred loss or damage in connection with
  telemarketing and who actually purchased goods or services through
  telemarketing, or paid or is obligated to pay for goods or services
  purchased through telemarketing;
  (2) any financial institution that has incurred loss or damage in connection
  with telemarketing; or
  (3) any member organization comprised of financial institution members,
  or any parent organization of such member organization, if one or more
  of the financial institution members is eligible to bring a civil action
  under this subsection.
Such term does not include a governmental entity.
  (b)(1) Any person adversely affected by any telemarketing which violates
  any rule, regulation, or order of the Commission under this Act may, within
  3 years after discovery of the violation, bring a civil action against a
  person who has engaged or is engaging in such telemarketing if the amount
  in controversy exceeds the sum or value of $50,000 in actual damages for
  each person adversely affected by such telemarketing. Such an action may be
  brought to enjoin such telemarketing, to enforce compliance with any rule,
  regulation, or order of the Commission under this Act, to obtain damages,
  or to obtain such further and other relief as the court may deem appropriate.
  (2) The district courts of the United States, the United States courts of any
  territory, and the District Court of the United States for the District of
  Columbia shall have exclusive jurisdiction over all civil actions brought
  under this section to enforce any liability or duty created by any rule,
  regulation, or order of the Commission under this Act, or to obtain
  damages or other relief with respect thereto. Upon proper application,
  such courts shall also have jurisdiction to issue writs of mandamus,
  or orders affording like relief, commanding the defendant to comply with
  the provisions of any rule, regulation, or order of the Commission under
  this Act, including the requirement that the defendant take such action
  as is necessary to remove the danger of violation or of any such rule,
  regulation, or order. Upon a proper showing, a permanent or temporary
  injunction or restraining order shall be granted without bond.
  (3) The plaintiff shall serve prior written notice of the action upon
  the Commission and provide the Commission with a copy of its complaint,
  except in any case where such prior notice is not feasible, in which
  case the person shall serve such notice immediately upon instituting such
  action. The Commission shall have the right (A) to intervene in the action,
  (B) upon so intervening, to be heard on all matters arising therein, and
  (C) to file petitions for appeal.
  (4) Whenever the Commission has instituted a civil action for violation
  of any rule prescribed under this Act, no person may, during the pendency
  of such action instituted by the Commission, subsequently institute a
  civil action against any defendant named in the Commission's complaint
  for violation of any rule as alleged in the Commission's complaint.
  (5) Any civil action brought under this section in a district court of the
  United States may be brought in the district wherein the defendant is found
  or is an inhabitant or transacts business or wherein the telemarketing
  occurred or is occurring and process in such cases may be served in any
  district in which the defendant is an inhabitant or wherever the defendant
  may be found.
  (c) The court, in issuing any final order in any action brought under
  subsection (b) of this section, may award costs of suit and reasonable
  fees for attorneys and expert witnesses to the prevailing party.
  (d) Nothing in this section shall restrict any right which any person may
  have under any statute or common law.
VENUE
  SEC. 6. Subsections (a) and (b) of section 13 of the Federal Trade Commission
  Act (15 U.S.C. 53) are each amended by adding at the end thereof the
  following: `Whenever it appears to the court that the interests of justice
  require that any other person, partnership, or corporation should be a party
  in such suit, the court may cause such person, partnership, or corporation
  to be summoned without regard to whether they reside or transact business
  in the district in which the suit is brought, and to that end process may
  be served wherever the person, partnership, or corporation may be found.'.
SUBPOENA
  SEC. 7. (a) Section 20(a) of the Federal Trade Commission Act (15
  U.S.C. 57b-1(a)) is amended--
  (1) by redesignating paragraph (7) as paragraph (8); and
  (2) by inserting immediately after paragraph (6) the following new paragraph:
  `(7) The term `physical evidence' means any object or device, including any
  medical device, food product, drug, nutritional product, cosmetic product,
  or audio or video recording.'.
  (b) Section 20(c)(1) of the Federal Trade Commission Act (15
  U.S.C. 57b-1(c)(1)) is amended--
  (1) by inserting `physical evidence or' immediately after `any' the second
  time it appears;
  (2) by inserting `to produce such physical evidence for inspection,'
  immediately before `to produce';
  (3) by inserting `physical evidence,' immediately after `concerning'; and
  (4) by inserting `evidence,' immediately before `material, answers,'.
  (c) Section 20(c)(3)) of the Federal Trade Commission Act (15
  U.S.C. 57b-1(c)(3)) is amended--
  (1) by inserting `physical evidence or' immediately before `documentary
  material';
  (2) in subparagraph (A)--
  (A) by inserting `physical evidence or' immediately before `documentary'; and
  (B) by inserting `evidence or' immediately after `permit such';
  (3) in subparagraph (B), by inserting `evidence or' immediately before
  `material'; and
  (4) in subparagraph (C), by inserting `evidence or' immediately before
  `material'.
  (d) Section 20(c)(10) of the Federal Trade Commission Act (15
  U.S.C. 57b-1(c)(10)) is amended by inserting `physical evidence or'
  immediately before `documentary material' each place it appears.
FALSE ADVERTISEMENTS CONCERNING SERVICES
  SEC. 8. Section 12(a) of the Federal Trade Commission Act (15 U.S.C. 52(a))
  is amended by inserting `services,' immediately after `devices,' each
  place it appears.
CLEARINGHOUSE
  SEC. 9. The Commission shall establish a clearinghouse for inquiries made
  to Federal agencies concerning telemarketing. The clearinghouse will provide
  information (other than information which may not be disclosed under section
  552(b) of title 5, United States Code, or under regulations prescribed by
  the Commission to implement sections 552(b) of title 5, United States Code)
  to anyone making inquiries respecting persons engaged in telemarketing or
  direct such inquiries to the appropriate Federal or State agency.
FINANCIAL DATA
  SEC. 10. Section 1109(a)(3) of the Right to Financial Privacy Act of 1978
  (12 U.S.C. 3409(a)(3)) is amended--
  (1) by redesignating subparagraph (E) as subparagraph (F);
  (2) by striking `or' at the end of subparagraph (D); and
  (3) by inserting immediately after subparagraph (D) the following new
  subparagraph:
  `(E) dissipation, removal, or destruction of assets that are subject to
  forfeiture, seizure, redress, or restitution under any law of the United
  States by reason of having been obtained in violation of law; or'.
CRIMINAL CONTEMPT AUTHORITY
  SEC. 11. Section 16(a)(1) of the Federal Trade Commission Act (15
  U.S.C. 56(a)(1)) is amended--
  (1) in subparagraph (A) by striking `civil' the first place it appears
  and inserting in lieu thereof `Federal court'; and
  (2) by adding at the end the following: `The Commission may bring a criminal
  contempt action for violations of orders obtained in cases brought under
  section 13(b) of this Act in the same manner as civil penalty and other
  Federal court actions to which this subsection applies. Such cases may
  be initiated by the Commission on its own complaint, or pursuant to its
  acceptance of an appointment by a court to assist it in enforcing such
  orders pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure.'
ADMINISTRATION AND APPLICABILITY OF ACT
  SEC. 12. (a) Except as otherwise provided in sections 4 and 5 of this
  Act, this Act shall be enforced by the Commission under the Federal Trade
  Commission Act (15 U.S.C. 41 et seq.).
  (b) The Commission shall prevent any person from violating a rule,
  regulation, or order of the Commission under this Act in the same manner,
  by the same means, and with the same jurisdiction, powers, and duties as
  though all applicable terms and provisions of the Federal Trade Commission
  Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this
  Act. Any person who violates such rule, regulation, or order shall be
  subject to the penalties and entitled to the privileges and immunities
  provided in the Federal Trade Commission Act in the same manner, by the
  same means, and with the same jurisdiction, power, and duties as though
  all applicable terms and provisions of the Federal Trade Commission Act
  were incorporated into and made a part of this Act.
  (c) No provision of this Act shall apply to any person exempt from the
  jurisdiction of the Commission under section 5(a)(2) of the Federal Trade
  Commission Act (15 U.S.C. 45(a)(2)), and nothing in this Act shall be
  construed to vest the Commission, or (except as provided in sections 4
  and 5) the attorney general of any State or any person, with jurisdiction
  or authority over any person in addition to any jurisdiction or authority
  otherwise granted to the Commission.
LIFE CARE HOME STUDY
  SEC. 13. (a) The Federal Trade Commission shall conduct a study of unfair or
  deceptive acts or practices in the life care home industry, including acts
  or practices engaged in by life care homes. Within 24 months after the date
  of enactment of this section, the Commission shall report the findings and
  conclusions of the study to Congress. The Commission shall indicate in its
  report whether it intends to initiate a trade regulation rulemaking under
  section 18 of the Federal Trade Commission Act (15 U.S.C. 57a) respecting
  unfair or deceptive acts or practices in the life care home industry and
  the reasons for such determination.
  (b) for purposes of subsection (a)--
  (1) The term `life care home' includes the facility or facilities occupied,
  or planned to be occupied, by residents or prospective residents where a
  provider undertakes to provide living accommodations and services pursuant
  to life care contract, regardless of whether such facilities are operated
  on a profit or nonprofit basis.
  (2) The term `life care contract' includes a contract between a resident and
  a provider to provide the resident, for the duration of such resident's life,
  living accommodations and related services in a life care home, including
  nursing care services, medical services, and other health-related services,
  which is conditioned upon the transfer of an entrance fee to the provider and
  which may be further conditioned upon the payment of periodic service fees.
SUNSET
  SEC. 14. The provisions of sections 3, 4, and 5 shall cease to have force
  and effect on and after the date that is five years following the date of
  enactment of this Act.
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