Section 04.02.01.020 - DEFINITIONSThe definitions set forth in Section 48-602, Idaho Code, apply with full force and effect to all provisions and sections of these rules, including rules hereafter amended or supplemented. Terms not defined in these rules or in Section 48 -602, Idaho Code, shall be construed in accordance with definitions promulgated by the Federal Trade Commission. Terms not so defined shall be construed in accordance with general principles of Idaho law. As used in this chapter: (3-31-22)
01.Act. The Idaho Consumer Protection Act, Title 48, Chapter 6, Idaho Code. (3-31-22)02.Actions or Transactions Permitted Under Laws Administered by a Regulatory Body or Officer. Specific acts, practices, or transactions authorized by a regulatory body or officer pursuant to a contract, rule, or regulation, or other properly issued order, directive, or resolution. (3-31-22)03.Advertisement (including words of similar meaning or import). Any oral, written, graphic, or pictorial representation, statement, or public notice, however made or utilized, including, without limitation, by publication, dissemination, solicitation or circulation, in the course of trade and commerce. A person's name under which trade or commerce is conducted shall be construed as advertising if an assumed name is used, and if the name has the capacity, tendency, or effect of misleading or deceiving consumers acting reasonably under the circumstances. (3-31-22)04.Appropriate Trade Premises. Premises at which either the owner or seller normally carries on a business, or where goods are normally offered or exposed for sale in the course of a business carried on at those premises. (3-31-22)05.Ascertainable Loss. Any deprivation, detriment, or injury, or any decrease in amount, magnitude, or degree that is capable of being discovered, observed, or established. It is not necessary for a private plaintiff to prove actual damages of a specific dollar amount to prove ascertainable loss, but only that the item was different from that for which the private plaintiff bargained, or that the private plaintiff suffered some like loss. (3-31-22)06.Bait and Switch. Advertising goods or services with the intent not to sell them but to lure the consumer to the seller's place of business and then switch the consumer from buying the advertised goods or services to other or different goods or services on a basis more advantageous to the seller. (3-31-22)07.Bona Fide Gift. Any goods or services in which a statement is provided to the gift recipient at or prior to the time of delivery or performance, which clearly and conspicuously informs the recipient that the goods or services may be retained, used, discarded, rejected, or otherwise disposed of without any obligation to the person providing, sending, or performing the goods or services. (3-31-22)08.Business Arrangement. Any understanding, procedure, course of dealing, or arrangement, formal or informal, between a consumer and a seller or a creditor and a seller, in connection with the sale of goods or services to consumers or the financing thereof. (3-31-22)09.Business Day. Any calendar day, except Saturday, Sunday, or the following legal holidays: New Year's Day, Martin Luther King, Jr. Day, Presidents' Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, and Christmas Day. (3-31-22)10.Buy-Down Rate. A financing rate which, as a result of a seller's advance payment of finance charges to a third party, is below the prevailing market financing rate. (3-31-22)11.Clear and Conspicuous Disclosure. A statement, representation, or term which is disclosed in a manner that is: (3-31-22)a. Reasonably close to any statement, representation or term it clarifies, modifies, explains, or to which it otherwise relates; (3-31-22)b. Reasonably noticeable; (3-31-22)c. Reasonably understandable by the persons to whom it is directed; and (3-31-22)d. Not contradictory to any terms it purports to clarify, modify, or explain. (3-31-22)12.Consideration. A right, interest, profit, or benefit accruing to a party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other. (3-31-22)13.Consumer. A person who purchases, leases, or rents, or is solicited to purchase, lease, rent or otherwise give consideration for any goods or services. (3-31-22)14.Consumer Credit Contract. Any instrument which evidences or embodies a debt arising from a purchase money loan transaction or a financed sale. (3-31-22)15.Credit Card Issuer. A person who extends to card holders the right to use a credit card in connection with purchases of goods or services. (3-31-22)16.Creditor. A person who, in the ordinary course of business, lends purchase money or finances the sale of goods or services to consumers on a deferred payment basis; provided, such person is not acting, for the purposes of a particular transaction, in the capacity of a credit card issuer. (3-31-22)17.Dealer. A seller of motor vehicles. (3-31-22)18.Dealer Documentation Service Fee (including words of similar meaning or import, such as, but without limitation, "dealer's doc" fee, "administration" fee, "documentation and handling" fee and "D and H" fee). A fee charged by the dealer for services actually rendered to, for, or on behalf of the consumer in preparing, handling and processing documents pertaining to the motor vehicle and the closing of the transaction. (3-31-22)19.Demonstrator Vehicle. A motor vehicle of the current or previous two (2) model years which has not been rented, leased, sold, titled or registered to a member of the public prior to the appearance of the advertisement, and which has been used by the dealer or dealership personnel for demonstration purposes. (3-31-22)20.Disseminate. To publish, advertise, broadcast, deliver, circulate, mail, display, post, or otherwise distribute to a consumer. "Dissemination date" means the first date an advertisement is disseminated. (3-31-22)21.Documentary Material. The original or a copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, audio and/or visual recording, mechanical, photographic, or electronic transcription, or other tangible document or recording. (3-31-22)22.Door-to-Door Sale. A sale, lease, or rental of goods or services primarily for personal, family, or household purposes, with a purchase price of twenty-five dollars ($25) or more, whether under single or multiple contracts, in which the seller or his representative personally solicits the sale, including solicitations made in response to or following an invitation by the consumer, and the consumer's agreement or offer to purchase is made at a place other than the appropriate trade premises of the seller. The term "door-to-door sale" does not include a transaction: (3-31-22)a. Made pursuant to prior negotiations in the course of a visit by the consumer to the seller's retail business establishment, such establishment having a fixed permanent location where the goods or services being purchased are offered for sale on a continuing basis; (3-31-22)b. In which the consumer has initiated the contact and the goods or services are needed to meet a bona fide immediate personal emergency of the consumer, and the consumer furnishes the seller with a separate dated and signed personal statement in the consumer's handwriting describing the situation requiring immediate remedy and expressly acknowledging and waiving the right to cancel the sale within three (3) business days; (3-31-22)c. Conducted and consummated entirely by mail or telephone, in compliance with all provisions of the Act, and any other federal or state of Idaho statute, regulation, or rule governing mail or telephone solicitations, and without any other contact between the consumer and the seller prior to delivery of the goods or performance of the services; or (3-31-22)d. In which the consumer has initiated the contact and specifically requested the seller to visit his home for the purpose of repairing or performing maintenance upon the consumer's personal property; provided, however, that if in the course of such a visit, the seller sells the consumer the right to receive additional services or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services does not fall within this exclusion; or (3-31-22)e. Pertaining to the sale or rental of real property, to the sale of insurance or to the sale of securities or commodities by a broker registered with the Idaho Department of Finance. (3-31-22)23.Examination. Examination of documentary material includes the inspection, study, or copying of any such material, and the taking of testimony under oath or acknowledgment with respect to any such documentary material or copy thereof. (3-31-22)24.Executive or Official Vehicle. A motor vehicle which has been driven exclusively by executives of the motor vehicle's manufacturer or by an executive of any authorized dealership selling the same make of motor vehicle. (3-31-22)25.Exempt Loan Broker. Any person: (3-31-22)a. Doing business under any law of the State of Idaho or of the United States relating to banks, credit unions, trust companies, savings and loan associations, insurers, pension trusts, real estate investment trust and other financial institutions, or under the uniform consumer credit code; (3-31-22)b. Engaged exclusively in the business of marketing agricultural, horticultural, viticultural, dairy, livestock, poultry, or bee products on a cooperative nonprofit basis in loaning or advancing money to the members thereof or in connection with any such business; (3-31-22)c. Securing money or credit from any federal intermediate credit bank organized and existing pursuant to the provisions of any act of Congress entitled "Agricultural Credits Act of 1923," in loaning or advancing money or credit so secured; (3-31-22)d. Who is a Federal Housing Administration approved mortgagee; or (3-31-22)e. Who is licensed under the Idaho Securities Act if the loan is made in accordance with applicable provisions of the Idaho Securities Act, the Securities Act of 1933, the Securities Exchange Act of 1934, and Regulation T promulgated by the Federal Reserve Board ( 12 C.F.R. Section 220 ). (3-31-22)26.Financed Sale (Including Financing a Sale). Extending credit to a consumer in connection with a consumer credit sale within the meaning of the Idaho Credit Code. (3-31-22)27.Free (Including Words of Similar Meaning or Import). Without charge or cost, monetary or otherwise, to the recipient, and includes terms of essentially identical import, such as "give away" or "complimentary." (3-31-22)28.Going-Out-of-Business Sale. A sale advertised in such a manner as to reasonably cause a consumer to believe that the seller is in the process of concluding its affairs and discontinuing operation. Any sale using any of the following words or words of similar import are deemed to be a going-out-of-business sale unless each advertisement discloses it is not a going-out-of-business sale in a clear and conspicuous manner: "adjuster's," "adjustment," "assignee's," "bankrupt," "benefit of administrators," "benefit of creditors," "benefit of trustees," "building coming down," "closing," "creditor's," "insolvent," "end," "executor's," "final days," "forced out of business," "last days," "lease expires," "liquidation," "loss of lease," "mortgage sale," "receiver's," "quitting business," "selling to the bare walls," or "trustee's." (3-31-22)29.Goods. Any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, including certificates or coupons exchangeable for such goods. (3-31-22)30.Information Provider. Any person that controls the content of a pay-per-telephone-call service. Any telephone corporation that provides basic local exchange service or message telecommunication service, as defined by Section 62-603, Idaho Code, which transmits pay-per-telephone-call service but does not control the content of the information transmitted is not within this definition. (3-31-22)31.Leased Vehicle (including words of similar meaning or import). A motor vehicle that has been driven for a specific period of time pursuant to a lessor-lessee agreement. (3-31-22)32.Loan Broker. Any person, except an exempt loan broker, who offers for compensation to arrange for a loan or other extension of credit. (3-31-22)33.Motor Vehicle (including words of similar meaning or import). A motor vehicle as defined in the Idaho Motor Vehicles Act (Idaho Code Section 49-101 et seq.) (3-31-22)34.Negative Option Notice Requirements. Negative option notice requirements means: (3-31-22)a. A notice received by a consumer, at least thirty (30) but not more than forty-five (45) days, in advance of the effective date of the delivery or provision of goods or services, clearly and conspicuously: (3-31-22)i. Describing the specific goods or services to be delivered or provided; (3-31-22)ii. Stating the price of the goods or services delivered or provided; (3-31-22)iii. Informing the consumer that the goods or services will be delivered or provided unless the consumer informs the seller that the goods or services are not wanted; and (3-31-22)iv. Informing the consumer of at least two (2) methods, at least one (1) of which is expense-free to the consumer, by which the consumer can inform the seller of his desire not to receive the goods or services; (3-31-22)b. A statement on the first bill containing a charge for the goods or services, or a separate notice enclosed with the bill, which clearly and conspicuously advises the consumer of the inclusion of the new charge on the bill for the new goods or services, of the consumer's right to cancel those goods or services within ten (10) days of the receipt of the bill at no cost to the consumer for the period during which those goods or services were provided prior to effective cancellation, and the process by which the consumer may cancel the goods or services; and (3-31-22)c. In no event shall the consumer be required to cancel the new goods or services governed by this definition to avoid a charge prior to ten (10) days after the consumer's receipt of the first bill containing the charge for the new goods or services. For purposes of cancellation by mail, a cancellation shall be effective upon the date of mailing the cancellation notice. (3-31-22)35.New Motor Vehicle (including words of similar meaning or import). A motor vehicle that has not had its equitable or legal title transferred by a manufacturer, distributor, or dealer to a consumer (except a franchised distributor or franchised new motor vehicle dealer) or which has not been previously rented or leased to a person for any period of time. (3-31-22)36.Offer. Any solicitation, invitation, or proposal by a seller to a consumer through which a seller, either directly or indirectly, attempts or intends to sell, rent, or lease goods or services or to induce a consumer to purchase, rent, or lease goods or services. This definition is not intended to create a contract, where none would otherwise exist under Idaho law, though it is noted that the Act and these rules impose duties and provide for remedies for violations thereof even in the absence of a binding contract. (3-31-22)37.Pay-per-Telephone-Call Services. Any telecommunications service which permits simultaneous calling by a number of callers to a single telephone number and for which the calling party is assessed, by virtue of completing the call, a charge that is not dependent on the existence of a presubscription relationship and for which the caller pays a per-call or per-time-interval charge that is greater than, or in addition to, the charge for transmission of the call. (3-31-22)38.Person. Natural persons, corporations, both foreign and domestic, companies, business entities, trusts, partnerships, both limited and general, associations, both incorporated and unincorporated, and any other legal entity or any group associated in fact although not a legal entity, or any agent, assign, heir, employee, representative, or servant thereof. (3-31-22)39.Purchase Money Loan. A cash advance that is received by a consumer in return for a credit service charge within the meaning of the Idaho Credit Code, which is applied, in whole or substantial part, to a purchase of goods or services from a seller who refers consumers to the creditor or is affiliated with the creditor by common control, contract, or business arrangement. (3-31-22)40.Purchase Price. The total price paid or to be paid for the goods or services, including all interest and service charges. (3-31-22)41.Pyramid or Chain Distribution Scheme. Any plan or operation whereby a person gives consideration for the opportunity to receive consideration to be derived primarily from any person's introduction of other persons into participation in the plan or operation rather than from the sale of goods or services by the person or other persons introduced into the plan or operation. For the purposes of this definition, the term "consideration" does not include: (3-31-22)a. The not-for-profit sale of demonstration equipment and materials for use in making sales and which are not for resale; and (3-31-22)b. Time or effort spent in selling or recruiting activities. (3-31-22)42.Regulatory Body or Officer. Any person or governmental entity with authority to act pursuant to State of Idaho or federal statute. (3-31-22)43.Seller. Any person engaged in trade and commerce, the agent, representative, or employee of such person, or any person acting in concert with such person. (3-31-22)44.Send. To deliver, mail, provide, or cause to be mailed, delivered, or provided. (3-31-22)45.Services. Work, labor, or any other act or practice provided or performed by a seller to or on behalf of a consumer. (3-31-22)46.Subject to Financing Contract. An agreement whereby a consumer's obligation to purchase goods or services from a seller is contingent upon the obtaining of financing by, or on behalf of, a consumer. (3-31-22)47.Trade and Commerce. Advertising, offering for sale, selling, leasing, renting, collecting debts arising out of the sale or lease of goods or services, or distributing goods or services, at any point in the marketing chain, either to or from locations within the State of Idaho, directly or indirectly affecting the people of this State. (3-31-22)48.Trade Area. The geographic area where a seller is located and where the seller's advertisements are disseminated. (3-31-22)49.Unordered Goods or Services. Goods or services which are sent or provided without the prior expressed request or consent from the person receiving the goods or services. Unordered goods or services do not include: (3-31-22) a. Goods sent or services performed by mistake; (3-31-22)b. Bona fide gifts; (3-31-22)c. Additions to existing goods or services or levels of goods or services, already provided to consumers for which there is no separate and specific charge for such additions; (3-31-22)d. The restructuring of existing goods or services or levels of goods or services already provided, pursuant to negative option notice requirements, where the restructuring does not result in a substantial change in goods or services; or (3-31-22)e. Goods or services sent pursuant to an agreement which is in compliance with the Federal Trade Commission Rule on Use of Negative Option Plans by Sellers in Commerce ( 16 C.F.R. Section 425 ). (3-31-22)50.Used Motor Vehicle (including words of similar meaning or import). Previously rented motor vehicles, executive or official motor vehicles, leased motor vehicles, and all other motor vehicles that are not new motor vehicles. (3-31-22)51.Verifiable Retail Value. A price at which a seller can demonstrate that a substantial number of goods or services have been sold at retail by a person other than the seller. If substantiation described in this section is not available to a seller, the verifiable retail value shall be no more than one and one-half (1.5) times the amount the seller paid for the goods or services. (3-31-22)Idaho Admin. Code r. 04.02.01.020