Today's Law As Amended

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AB-2021 Solicitations: do not contact list.(2017-2018)



SECTION 1.

 The heading of Article 8 (commencing with Section 17590) of Chapter 1 of Part 3 of Division 7 of the Business and Professions Code is amended to read:

Article  8. Unsolicited and Unwanted Telephone and Mail Solicitations

SEC. 2.

 Section 17591 of the Business and Professions Code is amended to read:

17591.
 (a) The Attorney General shall maintain a “do not contact” list, updated no less frequently than quarterly, which shall set forth the telephone numbers, arranged by area code and numerical sequence, or physical mail addresses or both of telephone subscribers or mail recipients or both who do not wish to receive unsolicited and unwanted telephone solicitation calls or physical mail or both from solicitors as described in Section 17592. The “do not contact” list shall include any California telephone numbers that are on the “do not call” registry established and maintained by the Federal Trade Commission, as described in Section 310.4(b)(1)(iii)(B) of Title 16 of the Code of Federal Regulations.
(b) Telephone subscribers and mail recipients may place their telephone numbers and physical mail addresses on the “do not contact” list by sending in the manner prescribed by the Attorney General.
(c)  It is unlawful for any person to do any of the following: using the “do not call” contact”  list for any purpose other than to comply with this article regarding phone and mail solicitations  or applicable federal laws;  laws regarding telephone solicitations;  denying or interfering in any way, directly or indirectly, with a subscriber’s or recipient’s  right to place a California telephone number or physical mailing address or both  on the “do not call” contact”  list; causing a subscriber or recipient  to participate in and be included on the “do not call” contact”  list without the subscriber’s or recipient’s  knowledge or consent; selling or leasing the “do not call” contact”  list to a person other than a telephone  solicitor; selling or leasing by a telephone  solicitor of the “do not call” contact”  list; charging a fee to place a California telephone number or physical mailing address  on the “do not call” contact”  list; and a telephone  solicitor, either directly or indirectly, persuading a subscriber or recipient  with whom it has an established business relationship to place his or her telephone number or physical mailing address  on the “do not call” contact”  list, if the solicitation has the effect of preventing competitors from contacting that solicitor’s customers.

SEC. 3.

 Section 17592 of the Business and Professions Code is amended to read:

17592.
 (a) For purposes of this article:
(1) A “telephone solicitor”  “solicitor”  means any person or entity who, on his or her own behalf or through salespersons or agents, announcing devices, or otherwise, makes or causes a telephone call to be made to a California telephone number or sends or causes to be sent mail to a physical mailing address in the state  that does any of the following:
(A) Seeks to offer a prize or to rent, sell, exchange, promote, gift, or lease goods or services or documents that can be used to obtain goods or services.
(B) Offers or solicits or seeks to offer or solicit any extension of credit for personal, family, or household purposes.
(C) Seeks marketing information that will or may be used for the direct solicitation of a sale of goods or services to the subscriber.
(D) Seeks to sell or promote any investment, insurance, or financial services.
(E) Seeks to make any telephone solicitation or attempted telephone solicitation as described in Section 17511.1.
(2) “Do not call” contact”  list means the California telephone numbers and physical mailing address  on the national  “do not call” registry contact” list  established and maintained by the Federal Trade Commission, as described in Section 310.4(b)(1)(iii)(B) of Title 16 of the Code of Federal Regulations. A “do not call” list is current if it was obtained from the Federal Trade Commission no more than three months prior to the date a call is made. Attorney General. 
(3) “Recipient” means a person or entity that receives mail addressed to that person or entity at a particular physical mail address.
(b) A person or entity does not necessarily qualify as a telephone  solicitor if the products or services of the person or entity are sold or marketed by an independent contractor whose business practices are not controlled by the person or entity.
(c) Except for telephone calls described in subdivision (e), beginning on the 31st day after the Federal Trade Commission  Attorney General  makes its first “do not call” contact”  list available to telephone  solicitors, no telephone  solicitor shall call any telephone number on the then current “do not call” list or call any telephone number or send mail to a physical mailing address on the “do not contact” list  and do any of the following:
(1) Seek to offer a prize or to rent, sell, exchange, promote, gift, or lease goods or services or documents that can be used to obtain goods or services.
(2) Offer or solicit or seek to offer or solicit any extension of credit for personal, family, or household purposes.
(3) Seek marketing information that will or may be used for the direct solicitation of a sale of goods or services to the subscriber. subscriber or recipient. 
(4) Seek to sell or promote any investment, insurance, or financial services.
(5) Seek to make any telephone  solicitation or attempted telephone  solicitation as described in Section 17511.1.
(d) No person or entity that sells, leases, exchanges, or rents telephone  solicitation lists shall include in those lists those telephone numbers or physical mailing addresses  that appear on the current “do not call” contact”  list, except that this subdivision does not apply to lists used for directory assistance and numbers published in telephone directories that list substantially all publicly available telephone numbers in a specific geographic area.
(e) Subdivision (c) shall not apply to any of the following:
(1) Telephone calls made pursuant to the express agreement, in writing, of the subscriber to place calls to that California telephone number.  number and the sending of mail pursuant to an express agreement, in writing, of the recipient to mail to the recipient’s physical mailing address.  This written agreement shall clearly evidence the person’s authorization that calls made or mail sent  by or on behalf of a specific party may be placed or sent  to that California telephone number,  number or physical mailing address,  and shall include the signature of that person. In any dispute regarding whether a subscriber or recipient  has provided this express written permission, the telephone  solicitor has the burden of proving that the subscriber or recipient  has provided this permission by producing the original or a facsimile document, signed by the subscriber,  subscriber or recipient,  evidencing that permission; or an advertisement by the subscriber.  subscriber or recipient.  “Express agreement” does not include any consent or permission included in any contract of adhesion.
(2) Telephone calls made or the sending of mail  pursuant to the express request of the subscriber.  subscriber or recipient.  “Express request” may include a telephone call from or mail sent to  a person or entity who has been provided the subscriber’s telephone number or recipient’s physical mail address  and name as a referral from a solicitor with which the subscriber or recipient  has an established business relationship, if that solicitor has obtained the subscriber’s or recipient’s  express request for the referral. “Express request” does not include any consent or permission included in any contract of adhesion. A telephone call made or the sending of mail  is presumed not to be made at the express request of a subscriber or recipient  if one of the following occurs, as applicable:
(A) The call is made or mail is sent  30 business days after the last date on which the subscriber or recipient  contacted a business with the purpose of inquiring about the potential purchase of goods or services.
(B) The call is made or mail is sent  30 business days after the last date on which the subscriber or recipient  consented to be contacted.
(C) The call is made or mail is sent  after the subscriber or recipient  has requested that no further telephone calls be made or mail sent  to him or her.
(D) The call is made or mail is sent  30 business days after a product or service becomes available where the subscriber or recipient  has made a request to the business for that product or service that is not then available, and requests a call to be made or mail to be sent  when the product or service becomes available.
(3) Telephone calls made or the sending of mail  in connection with the collection of a debt or the offer by a creditor to the subscriber or recipient  of an extension of credit to pay a delinquent obligation owed by the subscriber or recipient  to that creditor.
(4) Telephone calls made or the sending of mail  to a subscriber or recipient  if the telephone  solicitor has an established business relationship with the subscriber.  subscriber or recipient.  As used in this article, “established business relationship” means a relationship between a seller and a subscriber or recipient  based on the subscriber’s or recipient’s  purchase, rental, or lease of the seller’s goods or services or a financial transaction between the consumer and seller, within the 18 months immediately preceding the date of a telemarketing call.  solicitation.  If a subscriber or recipient  purchases or obtains a product or service through a licensed agent or broker, for purposes of this article an established business relationship is created with the licensed agent or broker individually, apart from and in addition to, any established business relationship that may have been created by a licensed agent or broker acting on behalf of another, and the licensed agent or broker is a telephone  solicitor, as defined in subdivision (a). Notwithstanding the provisions of this paragraph, an established business relationship does not exist between the subscriber or recipient  and any separate legal entity associated with the telephone  solicitor not acting as an agent or vendor on behalf of the telephone  solicitor, as defined in subdivision (a), unless the separate legal entity shares the brand name of a business with which the subscriber or recipient  has an otherwise established business relationship. If the subscriber instructs the telephone  solicitor to place the subscriber on the telephone  solicitor’s list pursuant to Section 64.1200 of Title 47 of the Code of Federal Regulations and Section 310.4(b)(1)(iii)(A) of Title 16 of the Code of Federal Regulations,  this section,  that instruction shall be binding on the entity with which the subscriber or recipient  has the established business relationship, with any entity that has the shared brand name, and all other entities that share that brand name, none of whom may initiate further telephone  solicitation calls or mailings  to that subscriber.  subscriber or recipient.  Separate legal entities include, but are not limited to, any parent company or entity, any subsidiary company or entity, any partnership or copartner, any joint venture or venturer, association member, or comember, or any affiliated company or entity.
(5) Telephone calls made or the sending of mail  by an individual businessperson or a small business if the individual businessperson or small business employs no more than five full- or part-time employees or independent contractors, the individual businessperson or a principal of the small business makes the telephone calls or sends the mail  himself or herself for the sale of goods or services offered by that individual businessperson or small business, and the telephone calls are made to subscribers within a 50-mile radius of the location of the individual businessperson or small business. For purposes of this section, the services offered by the individual businessperson or small business cannot be telemarketing services. For purposes of this section, those independent contractors and employees with whom an individual businessperson or a small business is required to have a written independent contractor or employment agreement pursuant to a regulatory scheme to ensure regulatory accountability of those independent contractors or employees, are not counted against the total referenced above.
(6) A telephone call made or the sending of mail  solely to verify that a subscriber,  subscriber or recipient,  and not an unauthorized third party, has terminated an established business relationship.
(7) Telephone calls made or the sending of mail  by a tax-exempt charitable organization.
(8) A telephone call made or the sending of mail  for the purpose of soliciting a donation without the purchase of goods or services.
(f) (1) Nothing in this section prohibits a telephone  solicitor from contacting by mail a subscriber or recipient  whose telephone number or physical mailing address  appears on the “do not call” contact”  list to obtain the subscriber’s or recipient’s  express written permission allowing the telephone  solicitor to make the calls or send the mail  described in subdivision (c).
(2) An express written permission described in paragraph (1) shall include a clear and conspicuous disclosure of all of the following, except as provided in paragraph (3):
(A) Identification of the name of the sender of the mailing and of the entity that is requesting permission to call. call or send additional mail. 
(B) The subscriber’s telephone number to which the calls may be placed.
(C) The signature of the subscriber authorizing the call.
(D) Notice that the subscriber or recipient  may be contacted by a telephone  solicitor or someone calling on behalf of the specific party identified in the request for permission, even if the subscriber’s telephone number or recipient’s physical mailing address  is listed on the federal state  “do not call” registry. contact” list. 
(3) Where there is an established business relationship, as defined under state or federal law, between a subscriber or recipient  and a telephone  solicitor, express written permission described in paragraph (1)is not required.
(4) In any dispute regarding whether a subscriber or recipient  has provided this express written permission, the telephone  solicitor has the burden of proving that the subscriber or recipient  has provided this permission by producing the original or a facsimile document, signed by the subscriber,  subscriber or recipient  evidencing that permission.

SEC. 4.

 Section 17593 of the Business and Professions Code is amended to read:

17593.
 (a) The Attorney General, a district attorney, or a city attorney may bring a civil action in any court of competent jurisdiction against a telephone  solicitor to enforce the article and to obtain any one or more of the following remedies:
(1) An order to enjoin the violation.
(2) A civil penalty of up to the penalty amount that the Federal Trade Commission may seek pursuant to subparagraph (A) of paragraph (1) of subsection (m) of Section 45 of Title 15 of the United States Code as specified in Section 1.98 of Title 16 of the Code of Federal Regulations.
(3) (2)  Any other relief that the court deems proper.
(b) Any person who has received a telephone solicitation or mail  that is prohibited by Section 17592, or whose telephone number or physical mailing address  was used in violation of Section 17591, may bring a civil action in small claims court for an injunction or order to prevent further violations. If a person obtains an injunction or order under this subdivision and service of the injunction or order is properly effected, a person who thereafter receives further solicitations in violation of the injunction or order within 30 days after service of the initial injunction or order, may file a subsequent action in small claims court seeking enforcement of the injunction or order and a civil penalty to be awarded to the person in an amount up to one thousand dollars ($1,000). For purposes of this subdivision, a person’s claims may not be aggregated to establish jurisdiction in a court other than small claims court. For purposes of this subdivision, a defendant is not required to personally appear, but may appear by affidavit or by written instrument.
(c) The rights, remedies, and penalties established by this article are in addition to the rights, remedies, or penalties established under other laws.
(d) It shall be an affirmative defense to any action brought under this article that the violation was accidental and in violation of the telephone  solicitor’s policies and procedures and telemarketer solicitor  instruction and training.
SEC. 5.
 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.