HBA-CCH H.B. 472 77(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 472
By: Solomons
Business & Industry
2/8/2001
Introduced


BACKGROUND AND PURPOSE 

Nationwide consumers lose an estimated $40 billion each year through
telemarketing fraud and often complain that telemarketers invade their
privacy and agitate them with numerous or aggressive solicitations. Many
calls violate the state mandated self-imposed no-call list that is
maintained by solicitors as well as violating the state time restrictions
on solicitations.  House Bill 472 creates the Texas Telemarketing
Disclosure and Privacy Act to set forth provisions to protect consumers
from unwanted telemarketing calls and to penalize telemarketers in
violation of the provisions. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Public Utility Commission in
SECTION 1 (Sections 43.051 and 43.103, Business & Commerce Code) and
SECTION 4 of this bill. 

ANALYSIS

House Bill 472 amends the Business & Commerce Code to create the Texas
Telemarketing Disclosure and Privacy Act to provide for the regulation of
telemarketing.  The bill defines a telemarketing call and prohibits a
telemarketer  from blocking the identity of the telephone number from which
the call is made and from interfering with the capacity of a caller
identification service to provide information regarding the call.  A
telemarketer is required to provide caller identification information that
is accessible by a caller identification service, if that capability is
available. The use of a telecommunications service or equipment incapable
of transmitting caller identification information does not of itself
constitute interference with a caller identification service.  The bill
requires the Public Utility Commission (PUC) to adopt rules regarding the
use of a service or equipment incapable of transmitting caller
identification information. (Secs. 43.002, 43.051) 

PUC is required to maintain a telemarketer no-call list containing the
telephone numbers of persons in this state who have requested to be on the
list.  PUC is required to update the list quarterly.  An entry on the list
expires on its third anniversary, but may be renewed for successive
three-year periods. PUC is authorized to charge a person no more than $3
for a request to be on the list or to renew an entry.  The bill requires
PUC  to make available a no-call request form and provide a toll-free
number for persons to call to obtain the form.  A private for-profit
publisher of a residential phone directory is required to include a copy of
the form in the directory. (Sec. 43.101)  A telemarketer is prohibited from
making a call to anyone on the no-call list. (Sec. 43.102) 

PUC is required to adopt rules:

_requiring each local exchange telephone company to inform its customers of
their options regarding telemarketers through annual inserts in billing
statements or a conspicuous publication in the consumer information pages
of local telephone directories; 

_providing that a telemarketing call to a person on the no-call list is not
a violation if the call is an isolated occurrence and made by a
telemarketer who has adequate procedures to  comply with the no-call
provision; 

_providing for the dissemination of the no-call list commonly used by
telemarketers; and 

_providing that a fee for each distribution is not to exceed $75. (Sec.
43.103) 

PUC is required to conduct an educational program at least annually to
inform the public of their rights and telemarketers of their obligations.
(Sec. 43.103) 

The bill sets forth facsimile transmission regulations regarding sender
information that is required to be included in the facsimile and
establishes guidelines if a recipient of a facsimile solicitation requests
that the solicitor not send any further transmissions. (Secs. 43.151,
43.152) 

PUC is required to receive and investigate complaints.  H.B. 472 also
provides that if a violation is found, the telemarketer is subject to
enforcement and penalties under the Public Utility Regulatory Act.  The
attorney general is authorized to investigate a violation and to file civil
enforcement actions.  A person may bring an action based on a violation to
enjoin the violation, sue for damages in the amount of the actual monetary
loss from the violation or $500 for each violation, or to file an
injunction and sue for damages. The court is authorized to increase the
amount of the award. (Secs. 43.102, 43.052, 43.153) 

PUC and the attorney general are required to submit a report to the
lieutenant governor and speaker of the house of representatives before
December 31st of each even-numbered year.  Both reports are to include a
list of complaints received, a summary of enforcement efforts, and
recommendations for any changes. PUC is also required to report the number
of telephone numbers on the no-call list, the number of no-call lists
distributed,  and the amount collected for those requests and
distributions. (Secs. 43.201, 43.202) 

The bill requires that the Texas Telemarketing Disclosure and Privacy Act
be liberally construed and applied to protect the public against false,
misleading, or deceptive practices. (Sec. 43.004)  An attempted waiver of a
provision is void. (Sec. 43.005) 

The bill requires PUC to adopt rules added by the Act before July 1, 2002.

EFFECTIVE DATE

January 1, 2002.