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.