SRC-ARR H.B. 537 76(R)   BILL ANALYSIS


Senate Research Center   H.B. 537
By: Danburg (Barrientos)
Economic Development
5/13/1999
Engrossed


DIGEST 

Currently, federal and state laws are not sufficiently deterring
telemarketing abuse and fraud. There are exemptions in registration and
bonding requirements which can make those laws difficult to enforce. Some
telephone solicitors call citizens who have requested not to be called, and
misrepresent themselves and the total cost of the goods or services they
offer. Sales people have withdrawn money from consumer accounts without
permission. H.B. 537 prohibits telephone solicitation calls to telephone
numbers of residential customers in Texas who have requested that their
telephone numbers be placed on a telephone solicitation no call list, and
provides civil and criminal penalties for telephone solicitors who violate
certain provisions of this Act.  


PURPOSE

As proposed, H.B. 537 prohibits telephone solicitation calls to telephone
numbers of residential customers in Texas who have requested that their
telephone numbers be placed on a telephone solicitation no call list, and
provides civil and criminal penalties for telephone solicitors who violate
certain provisions of this Act.  

RULEMAKING AUTHORITY

Rulemaking authority is granted to the Public Utilities Commission in
SECTION 1 (Section 37.01, Business & Commerce Code) of this bill.  

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 37 and 38, Business & Commerce Code, as follows:

CHAPTER 37. TELEPHONE SOLICITATION

Sec. 37.01.  DEFINITIONS.  Redefines "consumer good or service," "telephone
solicitation," and "telephone solicitor." Deletes the definition of
consumer  

Sec. 37.02. SOLICITOR IDENTITY; PERMISSIBLE HOURS; DISCONNECT. Prohibits a
telephone solicitor from making a telephone solicitation, rather than
consumer call to a consumer unless certain action is taken. Changes
"business to "entity" and "consumer" to "called person." 

 Sec. 37.03. CHARGES TO CONSUMER CREDIT ACCOUNT. Makes no change. 

Sec. 37.031. NO-Call LIST. Defines "commission." Sets forth certain
requirements for the Public Utilities Commission (commission). Authorizes
the commission to adopt rules to administer this section. Requires the
commission to adopt rules to take certain actions.  

Sec. 37.032. REQUEST OF CREDIT CARD NUMBER OR FINANCIAL INSTITUTION ACCOUNT
NUMBER AFTER OFFER OF FREE CONSUMER GOOD OR SERVICES. Provides that a
telephone solicitor commits an offense if the telephone solicitor knowingly
takes certain actions. Provides that an offense under this section is a
Class A misdemeanor.  

  Sec. 37.04. ENFORCEMENT. Make a conforming change. 

Sec. 37.05. CIVIL PENALTY. Authorizes the attorney general to also seek
attorney fees and investigative costs. Prohibits the damages awarded from
being less than the amount paid by the called person making the sale or
receiving the contribution as a result of the telephone solicitation,
rather than buyer to the telephone solicitor. 

Sec. 37.06. DECEPTIVE TRADE PRACTICES. Provides that a violation of this
chapter is a false, misleading, or deceptive act or practice under Chapter
17E and authorizes the use of any public or private right or remedy
prescribed by that subchapter to enforce this chapter. 

 Sec. 37.07. EXEMPTION. Provides that this chapter does not apply to
certain persons.  

CHAPTER 38. New heading: REGISTRATION OF TELEPHONE SOLICITORS 

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 38.001. DEFINITIONS. Defines "principal." Redefines "consumer good or
service," "owner," "purchaser," "telephone solicitor," "telephone
solicitation." 

Sec. 38.002. MAKING TELEPHONE SOLICITATION. Deletes text regarding an
automated dialing machine a recordable message device.  

 Sec. 38.003. CONSTRUCTION AND APPLICATION. Makes no change. 

SUBCHAPTER B. EXEMPTIONS 

 Sec. 38.051. CLAIM OF EXEMPTION. Makes no change.

Sec. 38.052. New heading: EXEMPTIONS APPLY TO TELEPHONE SOLICITOR. Provides
that the exemptions provided by this chapter apply, except as provided by
Section 38.054, only to a telephone solicitor, rather than seller, engaging
in a telephone solicitation on the telephone solicitors, rather than
seller's, own behalf.  

Sec. 38.053. New heading: PERSONS REGULATED BY OTHER LAW. Provides that
this chapter does not apply to certain persons. Deletes text regarding a
publicly traded corporation and other entities and persons.  

Sec. 38.054. New heading CERTAIN NONPROFIT, EDUCATIONAL, AND POLITICAL
ORGANIZATIONS. Provides that this chapter does not apply to certain
entities or  persons. Deletes text regarding certain commercial sales.
Deletes Section 38.056 regarding certain solicitations. 

Sec. 38.055. New heading: SOLICITATION OF CURRENT OR FORMER CUSTOMERS OR
CONTRIBUTOR. Provides that this chapter does not apply to certain persons
with whom the telephone solicitor has an established business relationship,
except that this exemption does not apply to a telephone solicitation by a
provider of local exchange or interexchange telecommunication service.  

Sec. 38.056. New heading: ARRANGEMENT FOR LATER PRESENTATION. Provides that
this chapter does not apply to certain persons. Deletes text regarding
certain persons. Deletes Section 38.060 regarding certain solicitation
services having predominately exempt customers.  

Sec. 38.057. CERTAIN ISOLATED SOLICITATIONS. Deletes "commercial" regarding
telephone solicitations.  

SUBCHAPTER C. REGISTRATION 

  Sec. 38.101. REGISTRATION REQUIRED. Makes a conforming change. 

Sec. 38.102. CONTENTS OF REGISTRATION STATEMENT; VERIFICATION; PUBLIC
INFORMATION. Deletes the definition of "principal." Makes a conforming
change.  

Sec. 38.103. FILING FEE. Provides that the filing fee for a registration
statement is $75, rather than $200. Authorizes the fee collected under this
section to be used only to defray the costs of the secretary of state and
the Public Utility Commission in administering this chapter and Section
37.031.  

Sec. 38.104. ISSUANCE OF CERTIFICATION OF REGISTRATION. Makes a conforming
change.  

 Sec. 38.105. EFFECTIVE DATE; RENEWAL. Make no changes. 

Sec. 38.106. New heading: CHANGE IN INFORMATION. Requires a telephone
solicitation to submit a material change in information to the secretary of
state by filing an addendum, including a change of a telephone solicitation
agent of the telephone solicitor. 

Sec. 38.107. SECURITY. Requires a registration statement filed under this
under the chapter to be accompanied by certain items, except as provided by
Subsection (c) and (d). Requires the bond letter of credit, or certificate
of deposit to take certain action. Sets forth requirements for a telephone
solicitor to apply to the secretary of state for release of the security
required by this section if the solicitor ceases all activities subject to
this chapter. 

Sec. 38.108. New heading: SECRETARY OF STATE AS TELEPHONE SOLICITOR'S AGENT
TO RECEIVE SERVICE. Makes conforming changes.   

SUBCHAPTER D. DISCLOSURE REQUIRED IN REGISTRATION STATEMENT.

Sec. 38.151. DISCLOSURE OF CERTAIN NAMES, ADDRESSES, AND ORGANIZATIONAL
INFORMATION.  Requires a  registration statement to contain certain
information. Deletes text regarding other statements a registration must
contain. Makes conforming changes. Deletes existing Section 38.152
regarding disclosure of certain convictions, judgments, orders, and
bankruptcies.  Deletes existing Section 38.153  regarding disclosure of
certain sales information  

SUBCHAPTER E. New heading: ADDITIONAL INFORMATION FROM TELEPHONE SOLICITOR 

Sec. 38.201. New heading: INFORMATION POSTED OR AVAILABLE AT TELEPHONE
SOLICITOR'S LOCATION. Makes conforming changes.  

Sec. 38.202. New heading: DISCLOSURE TO SOLICITED PERSONS. Requires a
telephone solicitor to provide each purchaser or contributor with certain
information, when the solicitation is made and before the consummation of
any sale transaction or receipt of any contribution. Makes conforming a
changes.   

Sec. 38.203. REFERENCE TO COMPLIANCE WITH STATUE PROHIBITED. Makes
conforming changes.  

SUBCHAPTER F. OFFENSES

 Sec. 38.251. VIOLATION OF CHAPTER. Makes no change.

Sec. 38.252. New heading: TELEPHONE SOLICITATION FOR UNREGISTERED TELEPHONE
SOLICITOR. Provides that a person commits an offense if the person knowing
makes a telephone solicitation, rather than acts as a salesperson, on
behalf of a telephone solicitor. Makes conforming changes. Deletes existing
Section 38.253 regarding  a request of credit card account numbers.  

SUBCHAPTER G. ENFORCEMENT 

 Sec. 38.301. INJUNCTION. Makes no change. 

Sec.38.302. CIVIL PENALTIES. Deletes text regarding $50,000, for all
violations of the injunction.  

 Sec. 38.303. DECEPTIVE TRADE PRACTICES. Makes no change. 

Sec. 38.304. ACTION TO RECOVER AGAINST SECURITY. Authorizes the attorney
general to bring an action in the name of the state to recover against the
bond, letter of credit, or certification of deposit required under Section
38.107. Makes conforming changes  

 Sec. 28.305. WAIVER PROHIBITED. Makes no changes. 

SECTION 2. Repealer: Chapter 55G, Utilities Code (Telephone Solicitation). 

SECTION 3. Makes application of this Act prospective.

SECTION 4. Effective date: September 1, 1999, except that the requirements
of Section 37.031, Business & Commerce Code, as added by this Act, apply
only on and after the January 1, 2000. 

SECTION 5. Emergency clause.