By Brimer H.B. No. 3616
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of facsimile transmissions.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 35.47, Business & Commerce Code, is
1-5 amended by amending Subsection (d) and adding Subsections (g), (h),
1-6 (i), (j), (k), (l), (m), (n), and (o):
1-7 (d) [A person who makes or causes to be made a transmission
1-8 to a facsimile recording device for the purpose of a solicitation
1-9 or sale shall include in the document transmitted or on a cover
1-10 page to the document a statement, in at least 12-point type,
1-11 informing the recipient of a toll-free or local exchange accessible
1-12 telephone number at which the recipient may notify the person not
1-13 to send any further transmissions to one or more telephone numbers
1-14 specified by the recipient. On receipt of notification from a
1-15 recipient under this subsection, the person:]
1-16 [(1) shall within 24 hours send the recipient a
1-17 written acknowledgment of the recipient's notification; and]
1-18 [(2) may not make or cause to be made a transmission
1-19 to a number specified by the recipient, except for a single
1-20 transmission to comply with Subdivision (1) of this subsection.]
1-21 [(e)] On complaint of a called person that Subsection (a),
1-22 (b), or (c)[, or (d)] of this section has been violated, the county
1-23 or district attorney of the county in which the person resides
2-1 shall investigate the complaint and file charges if appropriate. A
2-2 telephone company serving the caller or called person is not
2-3 responsible for investigating a complaint or keeping records
2-4 relating to this section.
2-5 (e) [(f)] A person who violates Subsection (a), (b), or
2-6 (c)[, or (d)] of this section commits an offense. An offense under
2-7 this section is a Class C misdemeanor.
2-8 (f) [(g)] A person who receives a communication that
2-9 violates 47 U.S.C. Section 227, a regulation adopted under that
2-10 provision, or this section may bring an action against the person
2-11 who originates the communication in a court of this state for an
2-12 injunction, damages in the amount provided by this subsection, or
2-13 both. A plaintiff prevailing in an action for damages under this
2-14 subsection is entitled to the greater of $500 for each violation or
2-15 the person's actual damages, except that the court may increase the
2-16 amount of the award to not more than the greater of $1,500 for each
2-17 violation or three times the person's actual damages if the court
2-18 finds that the defendant[:]
2-19 [(1)] committed the violation knowingly or
2-20 intentionally[; or]
2-21 [(2) violated Subsection (c) of this section after the
2-22 defendant received a notification under Subsection (d) of this
2-23 section that prohibited transmissions to the telephone number to
2-24 which the transmission in violation of Subsection (c) of this
2-25 section was made].
2-26 (g) Actions commenced on or after January 1, 2000, under
3-1 this section shall not be certified or maintained as class actions.
3-2 (h) In addition to the technical and procedural standards of
3-3 federal statutes or regulations regarding telephone facsimile
3-4 machines and transmissions, a person in this state who makes or
3-5 causes to be made a facsimile solicitation shall include in the
3-6 document transmitted or on a cover page to the document a
3-7 statement, in at least 12-point type, stating:
3-8 (1) the correct and complete name of the person making
3-9 the facsimile solicitation and street address of the location of
3-10 the person's place of business; and
3-11 (2) a toll-free or local exchange accessible telephone
3-12 number of the person that:
3-13 (A) is answered in the order in which calls are
3-14 received by an individual capable of responding to inquiries from
3-15 recipients of facsimile solicitations at all times after 9 a.m. and
3-16 before 5 p.m. on each day except Saturday and Sunday; or
3-17 (B) automatically and immediately deletes the
3-18 specified telephone number of the recipient.
3-19 (i) On receipt of oral or written notification from a
3-20 recipient of a facsimile solicitation not to send any further
3-21 facsimile transmissions to one or more telephone numbers specified
3-22 by the recipient, the person making the facsimile solicitation:
3-23 (1) shall within 24 hours send the recipient a written
3-24 acknowledgment of the recipient's notification; and
3-25 (2) may not make or cause to be made a transmission to
3-26 a telephone number specified by the recipient, except for a single
4-1 transmission to comply with Subdivision (1).
4-2 (j) The commission shall receive and investigate complaints
4-3 concerning violations of this subchapter and may assess an
4-4 administrative penalty not to exceed $1,000 for each violation. If
4-5 the complaint alleges that the person violating this subchapter is
4-6 a telecommunications provider, as defined by Section 51.002,
4-7 Utilities Code, the commission has exclusive jurisdiction over the
4-8 violation alleged in the complaint.
4-9 (k) The attorney general may investigate violations of this
4-10 subchapter and file civil enforcement actions seeking injunctive
4-11 relief, attorney's fees, and civil penalties in an amount not to
4-12 exceed $1,000 for each violation. If the court finds the defendant
4-13 wilfully or knowingly violated this subchapter, the court may
4-14 increase the amount of the civil penalties to an amount not to
4-15 exceed $3,000 for each violation. A violation of this subchapter
4-16 is subject to enforcement action by the attorney general's consumer
4-17 protection division under Sections 17.47, 17.58, 17.60, and 17.61.
4-18 (l) A state agency that issues a license to a state licensee
4-19 shall receive and investigate complaints concerning violations of
4-20 this subchapter by the state licensee and may assess an
4-21 administrative penalty not to exceed $1,000 for each violation. In
4-22 addition, if the agency finds that the licensee wilfully or
4-23 knowingly violated this subchapter, the agency may suspend or
4-24 revoke the state licensee's license.
4-25 (m) Venue for an action based on a violation under this
4-26 subchapter is in the county where the telemarketing call was made
5-1 or received, or if brought by the attorney general, commission, or
5-2 a state agency, in Travis County.
5-3 (n) A person may bring a private right of action based on a
5-4 violation of this subchapter:
5-5 (1) to enjoin the violation; and
5-6 (2) for damages in an amount equal to the greater of:
5-7 (A) the person's actual monetary loss from the
5-8 violation; or
5-9 (B) $500 for each violation; or
5-10 (C) for both an injunction and damages.
5-11 (o) If the court finds that the defendant wilfully or
5-12 knowingly violated this section, the court may increase the amount
5-13 of the award to an amount equal to not more than three times the
5-14 amount available under Subsection (n)(2).
5-15 SECTION 2. Section 55.1065 and Subchapter G, Chapter 55,
5-16 Utilities Code are repealed.
5-17 SECTION 3. The Public Utility Commission of Texas shall
5-18 adopt rules required by Section 43.103, Business & Commerce Code,
5-19 as added by this Act, before July 1, 2002.
5-20 SECTION 4. Except for Section 35.47(g), this Act takes
5-21 effect January 1, 2002.