By Shapleigh S.B. No. 244
77R225 DWS-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of telemarketing; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Title 4, Business & Commerce Code, is amended by
1-5 adding Chapter 43 to read as follows:
1-6 CHAPTER 43. TELEMARKETING
1-7 SUBCHAPTER A. GENERAL PROVISIONS
1-8 Sec. 43.001. SHORT TITLE. This chapter may be cited as the
1-9 Texas Telemarketing Disclosure and Privacy Act.
1-10 Sec. 43.002. DEFINITIONS. In this chapter:
1-11 (1) "Caller identification service" means a service or
1-12 device designed to provide the user of the service or device with
1-13 the telephone number of an incoming telephone call.
1-14 (2) "Commission" means the Public Utility Commission
1-15 of Texas.
1-16 (3) "Consumer good or service" means property of any
1-17 kind that is normally used for personal, family, or household
1-18 purposes.
1-19 (4) "Facsimile recording device" means any device
1-20 capable of receiving a facsimile transmission.
1-21 (5) "Facsimile solicitation" means a telemarketing
1-22 call made by a transmission to a facsimile recording device.
1-23 (6) "Telemarketer" means a person who makes or causes
1-24 to be made a telemarketing call.
2-1 (7) "Telemarketing call" means a telephone call to:
2-2 (A) solicit a sale of a consumer good or
2-3 service;
2-4 (B) solicit an extension of credit for a
2-5 consumer good or service; or
2-6 (C) obtain information that may be used to
2-7 directly solicit a sale of a consumer good or service or to extend
2-8 credit for the sale.
2-9 (8) "Telephone call" means a call or other
2-10 transmission that is made to or received at a telephone number,
2-11 including:
2-12 (A) a call made by an automated telephone
2-13 dialing system; and
2-14 (B) a transmission to a facsimile recording
2-15 device.
2-16 Sec. 43.003. MAKING TELEMARKETING CALL. In this chapter, a
2-17 person makes a telemarketing call if the person effects or attempts
2-18 to effect a telemarketing call on the person's own behalf or on
2-19 behalf of another entity. A person makes a telemarketing call on
2-20 behalf of another entity if, as a result of the telemarketing call,
2-21 the other entity:
2-22 (1) can become entitled to receive money or other
2-23 property from a sale solicited during the call; or
2-24 (2) can receive information that is obtained during
2-25 the call and that is to be used for the purpose of:
2-26 (A) extending or offering to extend credit for a
2-27 consumer good or service to the person solicited; or
3-1 (B) directly soliciting a sale of a consumer
3-2 good or service or extending credit for the sale.
3-3 Sec. 43.004. CONSTRUCTION AND APPLICATION. This chapter
3-4 shall be liberally construed and applied to promote its underlying
3-5 purpose to protect the public against false, misleading, or
3-6 deceptive practices in the telemarketing business.
3-7 Sec. 43.005. WAIVER PROHIBITED. An attempted waiver of a
3-8 provision of this chapter is void.
3-9 (Sections 43.006-43.050 reserved for expansion
3-10 SUBCHAPTER B. CALLER IDENTIFICATION
3-11 Sec. 43.051. PROHIBITION ON INTERFERENCE WITH CALLER
3-12 IDENTIFICATION SERVICE. (a) A telemarketer may not, in making a
3-13 telemarketing call, block the identity of the telephone number from
3-14 which the telemarketing call is made to evade a device designed to
3-15 identify telephone callers.
3-16 (b) A person, in making a telemarketing call:
3-17 (1) may not interfere with or circumvent the
3-18 capability of a caller identification service to access or provide
3-19 to the recipient of the telemarketing call any information
3-20 regarding the call that the service is capable of providing; and
3-21 (2) shall provide caller identification information in
3-22 a manner that is accessible by a caller identification service, if
3-23 the person has capability to provide that information in that
3-24 manner.
3-25 (c) For purposes of this section, the use of a
3-26 telecommunications service or equipment that is incapable of
3-27 transmitting caller identification information, as identified by
4-1 the commission, does not of itself constitute interference with or
4-2 circumvention of the capability of a caller identification service
4-3 to access or provide the information. The commission shall adopt
4-4 rules to implement this subsection.
4-5 Sec. 43.052. ENFORCEMENT; PENALTIES. (a) A violation of
4-6 this subchapter is subject to enforcement and penalties under
4-7 Subchapter B, Chapter 15, Utilities Code, as if the violation were
4-8 a violation of Title 2, Utilities Code, by a person regulated under
4-9 that title. An administrative penalty collected for a violation of
4-10 this section may be used only for administering this subchapter. A
4-11 violation of this subchapter is also subject to other enforcement
4-12 and penalties provided by this subchapter.
4-13 (b) The commission shall receive and investigate complaints
4-14 concerning violations of this subchapter. On determination that a
4-15 violation has occurred, the commission shall take appropriate
4-16 action for enforcement and penalties.
4-17 (c) The attorney general may investigate a violation of this
4-18 subchapter under its investigative authority pursuant to Sections
4-19 17.60 and 17.61, and file civil enforcement actions seeking
4-20 injunctive relief, attorney's fees, and civil penalties for a
4-21 violation of this subchapter.
4-22 (d) Venue for an action based on a violation of this
4-23 subchapter is in:
4-24 (1) a county in which the telemarketing call was made
4-25 or received; or
4-26 (2) Travis County, if brought by the attorney general
4-27 or the commission.
5-1 (e) A person may bring an action based on a violation of
5-2 this subchapter:
5-3 (1) to enjoin the violation;
5-4 (2) for damages in an amount equal to the greater of:
5-5 (A) the person's actual monetary loss from the
5-6 violation; or
5-7 (B) $500 for each violation; or
5-8 (3) for both an injunction and damages.
5-9 (f) If the court finds that the defendant wilfully or
5-10 knowingly violated this subchapter, the court may increase the
5-11 amount of the award to an amount equal to not more than three times
5-12 the amount available under Subsection (e)(2).
5-13 (Sections 43.053-43.100 reserved for expansion
5-14 SUBCHAPTER C. NO-CALL LIST
5-15 Sec. 43.101. COMMISSION TO MAINTAIN NO-CALL LISTS. The
5-16 commission shall maintain a telemarketer no-call list. The no-call
5-17 list must contain the telephone numbers of persons in this state
5-18 who have requested to be on that list. The commission shall update
5-19 the list quarterly. An entry on the list expires on the third
5-20 anniversary of the date the entry is first included on the list. An
5-21 entry may be renewed for successive three-year periods. The
5-22 commission may charge a person a reasonable amount not to exceed $3
5-23 for a request to place a number on the list or to renew an entry on
5-24 the list. The commission shall develop and make available a form
5-25 to be used by customers to request to be on the list and shall
5-26 provide a toll-free telephone number that persons may call to
5-27 obtain a copy of the form. A private for-profit publisher of a
6-1 residential telephone directory that is distributed to the public
6-2 at minimal or no cost shall include in the directory a copy of the
6-3 form. The copy must be perforated at the edges or otherwise
6-4 included in a manner that provides for easy removal of the form.
6-5 Sec. 43.102. TELEMARKETING OF PERSONS ON NO-CALL LISTS;
6-6 ENFORCEMENT; PENALTIES. (a) A telemarketer may not make a
6-7 telemarketing call to a telephone number that has been entered on
6-8 the telemarketer no-call list.
6-9 (b) A violation of this section is subject to enforcement
6-10 and penalties under Subchapter B, Chapter 15, Utilities Code, as if
6-11 the violation were a violation of Title 2, Utilities Code, by a
6-12 person regulated under that title. An administrative penalty
6-13 collected for a violation of this section may be used only for
6-14 administering this subchapter. A violation of this section is also
6-15 subject to other enforcement and penalties provided by this
6-16 subchapter.
6-17 (c) The commission shall receive and investigate complaints
6-18 concerning violations of this section. On determination that a
6-19 violation has occurred, the commission shall take appropriate
6-20 action for enforcement and penalties.
6-21 (d) The attorney general may investigate a violation of this
6-22 section under its investigative authority pursuant to Sections
6-23 17.60 and 17.61, and file civil enforcement actions seeking
6-24 injunctive relief, attorney's fees, and civil penalties for a
6-25 violation of this section.
6-26 (e) Venue for an action based on a violation of this section
6-27 is in:
7-1 (1) a county in which the telemarketing call was made
7-2 or received; or
7-3 (2) Travis County, if brought by the attorney general
7-4 or the commission.
7-5 (f) A person may bring an action based on violation of this
7-6 section:
7-7 (1) to enjoin the violation;
7-8 (2) for damages in an amount equal to the greater of:
7-9 (A) the person's actual monetary loss from the
7-10 violation; or
7-11 (B) $500 for each violation; or
7-12 (3) for both an injunction and damages.
7-13 (g) If the court finds that the defendant wilfully or
7-14 knowingly violated this section, the court may increase the amount
7-15 of the award to an amount equal to not more than three times the
7-16 amount available under Subsection (f)(2).
7-17 Sec. 43.103. RULES; CUSTOMER INFORMATION; ISOLATED
7-18 VIOLATION. (a) The commission may adopt rules to administer this
7-19 subchapter. The commission shall adopt rules:
7-20 (1) requiring each local exchange telephone company to
7-21 inform its customers of the requirements of this subchapter by
7-22 annual inserts in billing statements mailed to customers or
7-23 conspicuous publication of the notice in the consumer information
7-24 pages of local telephone directories;
7-25 (2) providing that a telemarketing call made to a
7-26 number on the telemarketer no-call list is not a violation of
7-27 Section 43.102 if the telemarketing call is an isolated occurrence
8-1 made by a person who has in place adequate procedures to comply
8-2 with this subchapter; and
8-3 (3) providing for:
8-4 (A) the dissemination of the no-call list in
8-5 formats, including electronic formats, commonly used by persons
8-6 making telemarketing calls; and
8-7 (B) a fee for each distribution not to exceed
8-8 $75.
8-9 (b) In addition to requiring the notice under Subsection
8-10 (a)(1), the commission shall at least annually conduct an
8-11 educational program designed to inform the public of their rights
8-12 and telemarketers of their obligations under this subchapter.
8-13 Sec. 43.104. ASSISTANCE OF DEPARTMENT OF INFORMATION
8-14 RESOURCES. On request of the commission, the Department of
8-15 Information Resources shall assist the commission in administering
8-16 this subchapter.
8-17 (Sections 43.105-43.150 reserved for expansion
8-18 SUBCHAPTER D. FACSIMILE TRANSMISSIONS
8-19 Sec. 43.151. NOTICE IN FACSIMILE SOLICITATION. In addition
8-20 to the requirements of federal statutes or regulations regarding
8-21 facsimile transmissions, a person in this state who makes or causes
8-22 to be made a facsimile solicitation shall include in the document
8-23 transmitted or on a cover page to the document a statement, in at
8-24 least 12-point type, stating:
8-25 (1) the correct and complete name of the sender and
8-26 street address of the location of the person's place of business;
8-27 and
9-1 (2) a toll-free or local exchange accessible telephone
9-2 number of the person that is answered by an individual capable of
9-3 responding to inquiries from recipients of facsimile solicitations
9-4 at all times after 9 a.m. and before 9 p.m. on each day except
9-5 Sunday.
9-6 Sec. 43.152. ACKNOWLEDGMENT REQUIRED; TRANSMISSION
9-7 PROHIBITED. On receipt of oral or written notification from a
9-8 recipient of a facsimile solicitation not to send any further
9-9 facsimile transmissions to one or more telephone numbers specified
9-10 by the recipient, the person making the facsimile solicitation:
9-11 (1) shall within 24 hours send the recipient a written
9-12 acknowledgment of the recipient's notification; and
9-13 (2) may not make or cause to be made a transmission to
9-14 a telephone number specified by the recipient, except for a single
9-15 transmission to comply with Subdivision (1).
9-16 Sec. 43.153. ENFORCEMENT; PENALTIES. (a) The commission
9-17 shall receive and investigate complaints concerning violations of
9-18 this subchapter. On determination that a violation has occurred,
9-19 the commission shall take appropriate action for enforcement and
9-20 penalties.
9-21 (b) The attorney general may investigate a violation of this
9-22 subchapter under its investigative authority pursuant to Sections
9-23 17.60 and 17.61, and file civil enforcement actions seeking
9-24 injunctive relief, attorney's fees, and civil penalties for a
9-25 violation of this subchapter.
9-26 (c) Venue for an action based on a violation of this
9-27 subchapter is in:
10-1 (1) a county in which the facsimile solicitation was
10-2 made or received; or
10-3 (2) Travis County, if brought by the attorney general
10-4 or the commission.
10-5 (d) A person may bring an action based on violation of this
10-6 subchapter:
10-7 (1) to enjoin the violation;
10-8 (2) for damages in an amount equal to the greater of:
10-9 (A) the person's actual monetary loss from the
10-10 violation; or
10-11 (B) $500 for each violation; or
10-12 (3) for both an injunction and damages.
10-13 (e) If the court finds that the defendant wilfully or
10-14 knowingly violated this subchapter, the court may increase the
10-15 amount of the award to an amount equal to not more than three times
10-16 the amount available under Subsection (d)(2).
10-17 (Sections 43.154-43.200 reserved for expansion
10-18 SUBCHAPTER E. REGULATORY REPORTS
10-19 Sec. 43.201. REPORT BY COMMISSION. Before December 31st of
10-20 each even-numbered year, the commission shall submit a report to
10-21 the lieutenant governor and speaker of the house of
10-22 representatives. The report must contain for the two-year period
10-23 ending August 31st of the year of the report:
10-24 (1) a statement of the number of telephone numbers
10-25 included on the telemarketer no-call list, the number of no-call
10-26 lists distributed, and the amount collected for those requests and
10-27 distributions;
11-1 (2) a list of complaints received by the commission
11-2 concerning activities regulated by this chapter, itemized by type;
11-3 (3) a summary of any enforcement efforts made by the
11-4 commission; and
11-5 (4) the commission's recommendations for any changes
11-6 in this chapter.
11-7 Sec. 43.202. REPORT BY ATTORNEY GENERAL. Before December
11-8 31st of each even-numbered year, the attorney general shall submit
11-9 a report to the lieutenant governor and speaker of the house of
11-10 representatives. The report must contain for the two-year period
11-11 ending August 31st of the year of the report:
11-12 (1) a list of complaints received by the attorney
11-13 general concerning activities regulated by this chapter, itemized
11-14 by type;
11-15 (2) a summary of any enforcement efforts made by the
11-16 attorney general; and
11-17 (3) the attorney general's recommendations for any
11-18 changes in this chapter.
11-19 SECTION 2. Sections 35.47(e) and (f), Business & Commerce
11-20 Code, are amended to read as follows:
11-21 (e) On complaint of a called person that Subsection (a),
11-22 (b), or (c)[, or (d)] of this section has been violated, the county
11-23 or district attorney of the county in which the person resides
11-24 shall investigate the complaint and file charges if appropriate. A
11-25 telephone company serving the caller or called person is not
11-26 responsible for investigating a complaint or keeping records
11-27 relating to this section.
12-1 (f) A person who violates Subsection (a), (b), or (c)[, or
12-2 (d)] of this section commits an offense. An offense under this
12-3 section is a Class C misdemeanor.
12-4 SECTION 3. The following laws are repealed:
12-5 (1) Section 35.47(d), Business & Commerce Code;
12-6 (2) Section 55.1065, Utilities Code; and
12-7 (3) Subchapter G, Chapter 55, Utilities Code.
12-8 SECTION 4. The Public Utility Commission of Texas shall adopt
12-9 rules required by Sections 43.051 and 43.103, Business & Commerce
12-10 Code, as added by this Act, before July 1, 2002.
12-11 SECTION 5. The change in law made by this Act applies only to
12-12 a telephone call made on or after the effective date of this Act.
12-13 A telephone call made before the effective date of this Act is
12-14 governed by the law in effect when the telephone call was made, and
12-15 the former law is continued in effect for that purpose.
12-16 SECTION 6. This Act takes effect January 1, 2002.