Bill Text

Bill Information

PDF |Add To My Favorites |Track Bill | print page

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

SHARE THIS:share this bill in Facebookshare this bill in Twitter
Date Published: 02/05/2018 09:00 PM
AB2021:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2021


Introduced by Assembly Member Steinorth

February 05, 2018


An act to amend Sections 17591, 17592, and 17593 of, and to amend the heading of Article 8 (commencing with Section 17590) of Chapter 1 of Part 3 of Division 7 of, the Business and Professions Code, relating to solicitations.


LEGISLATIVE COUNSEL'S DIGEST


AB 2021, as introduced, Steinorth. Solicitations: do not contact list.
Existing law regulates telephone solicitations by telephone solicitors, as defined, and specifies those representations by a telephone solicitor to a prospective purchaser that constitute a telephone solicitation for purposes of this law. Existing law prohibits, subject to certain exceptions, a telephone solicitor from calling any California telephone number, beginning on or after the 31st day after the federal “do not call” registry becomes available, to, among other things, seek to offer a prize; to rent, sell, exchange, promote, gift, or lease any goods or services; to offer or solicit credit; to seek certain marketing information; or to seek to sell or promote any investment, insurance, or financial services. Existing law does not prohibit a telephone solicitor from contacting by mail a residential or wireless telephone subscriber whose telephone number appears on the “do not call” list to obtain the subscriber’s express written permission allowing the telephone solicitor to make the otherwise prohibited calls. Existing law provides that it is unlawful for a person to use a “do not call” list for other than specified purposes. A violation of these provisions is a crime, punishable by specified penalties, and a violation of the provisions applicable to the “do not call” registry are subject to specified civil liability.
This bill would require the Attorney General to maintain a “do not contact” list, updated no less frequently than quarterly, that sets forth the telephone numbers 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. The bill would require the “do not contact” list to include any California telephone numbers that are on the “do not call” registry established and maintained by the Federal Trade Commission. The bill would prohibit, subject to certain exceptions, a solicitor, as defined, from calling a telephone number or sending mail to a physical mail address on the “do not contact” list, beginning on the 31st day after this list becomes available to solicitors. By changing the definition of a crime, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


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, list pursuant to 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.